Today, this House has an opportunity to discuss the Fifteenth Amendment of the Constitution (No. 2) Bill which will have the effect of allowing the people to decide whether the Constitution should be amended to include a provision which would allow for the dissolution of marriage in limited circumstances and which would carry with it the right to remarry.
The existing prohibition in the Constitution on the enactment of legislation to provide for the grant of a dissolution of marriage is so absolute that it does not, no matter what the circumstances may be, allow the courts to dissolve a marriage. Persons who have been separated for a long time, many of them deserted, cannot divorce and go on to remarry if they so wish. The referendum that is proposed gives us an opportunity to change that situation.
Irish courts have never had a divorce jurisdiction and, with the exception of those divorces obtained abroad which are recognised here, Ireland has been, since attaining independence, divorce free. Nonetheless, the sad reality is that a society which is free from divorce is not a society which is free from the problems associated with marriage breakdown. As part of the process of confronting that reality the Government has brought forward this Bill.
It may be salutary to look briefly at the litany of statistics which point to the reality of marriage breakdown in this country. The first five years of the operation of the Judicial Separation and Family Law Reform Act have seen just over 9,500 applications for judicial separation. Applications for civil decrees of annulment, although small, continue to grow steadily. In the court year 1993-94, over 4,400 applications for barring orders were sought at District Court level alone.
These figures, when coupled with the 1993 Labour Force Survey statistics which suggest that the marriages of some 75,400 individuals had effectively broken down at that time, do not paint a picture of a society which can congratulate itself on having a divorce free culture. We already have in place laws which aim to regulate the financial and property arrangements of a couple whose marriage has broken down and which aim to secure the welfare of any children which they may have. These provisions are generally on a par with those prevailing in countries which do have the jurisdiction to grant divorce. The essential element missing here is the right of separated couples to remarry.
As I said in the other House, the publication of this Bill is the latest stage of a careful and detailed programme of family law reform which has been pursued by successive Administrations. Each and every Government over the past decade, including Governments involving both Fianna Fáil and the Progressive Democrats as well as the three parties now in Government, have carefully and methodically constructed a package of legal reform which has meant that all of the issues arising on marriage breakdown have received attention — except the issue which this Bill is designed to address, the right to remarry.
As a further illustration of this carefully crafted approach, this Bill is accompanied by a Government Paper, entitled The Right to Remarry, which sets out the detailed implications of divorce in relation to financial and legal issues such as maintenance, succession and pensions. That paper also contains the full text of a 39 section draft Bill, the Family Law (Divorce) Bill, which would be introduced by the Government following a “Yes” vote.
Indeed, just as the White Paper on Marriage Breakdown published by the then Minister for Justice, Padraig Flynn, in September 1992, set out the 1992 status of the work in progress on family law reform, The Right to Remarry paper sets out the 1995 position. I believe that it represents a comprehensive survey of all the issues of interest to people in connection with divorce. I have arranged to send copies of the paper to every public library in the State and every citizen's information bureau in the NSSB network where it will be available for consultation.
Before looking in more detail at the text of the amendment Bill, I want to deal in a general way with the philosophy which informs the approach the Government is taking.
There has been critical comment concerning the proposal to insert additional provisions in the Constitution on the basis that it would be more appropriate to opt for a simple deletion of the existing divorce ban. It is revealing, however, that a majority of people appear to endorse the approach which the Government is taking and I believe there is strong support for writing the conditions on which a divorce will be obtained into the Constitution.
There are genuine apprehensions about the impact which divorce of a kind which would be obtainable on easy terms might have on our society. For this reason, there is appreciation of the fact that the Government is not seeking to take to itself the power to change, without further consultation, the course which any divorce regime that may be introduced into this jurisdiction will follow. Instead, the Government is inviting the electorate to support a form of wording which cannot be changed unless a future referendum endorses such a change. This is an inherently democratic approach to what is, for many, a difficult social problem. It is also an approach which the Government is confident will result in a limited form of divorce being introduced into this country following a "Yes" vote in the forthcoming referendum.
In proposing the introduction of a divorce jurisdiction here, the Government is not, in any sense, seeking to diminish the value of marriage as an institution which is pivotal to our society. However, the idea of marriage which we respect is not one where the spouses are locked together in misery and unhappiness; where the relationship has the form of marriage but the cherishing and the communication which make the relationship real have long since vanished.
An 18th century judge once expressed the view that—
When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off. They become good husbands and good wives from the necessity of remaining husbands and wives....
I imagine there are few today who would endorse the coercion of spirit which this quotation represents.
We question the social utility of preserving outward forms where inner reality is absent. The overwhelming majority of people who enter into marriage do so with idealism, hope and a determination to make it work and, for the overwhelming majority, the original partnership survives intact. For some, however, the marriage has not worked and, for a variety of reasons, they have been left to live with the reality of marriage breakdown. Second relationships have been formed and children have been born within those relationships. Despite the fact that these relationships may be loving and stable, it is undeniable that both children and adults do not have the dignity and status which comes with being formally and legally recognised as a family within the community. This referendum proposal, if it is approved by the people, will give them that recognition for the future.
The Bill proposes that Article 41 of the Constitution be amended so that a court may grant a dissolution of marriage where, but only where, it is satisfied that each of a number of specific conditions has been fulfilled. The first of these is that, at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years.
The term "living apart" has given rise to some controversy but, in essence, it is quite straightforward. The concept is used in the Judicial Separation and Family Law Reform Act, 1989, and it is also one which is familiar in other jurisdictions. In such jurisdictions, it has been held that, while the phrase will typically cover the situation where the parties have physically separated and are living in different places, it may also be possible to prove separation even where they continue to live under the same roof. What is crucial to this determination is the idea of a household since the general view is that, where there is no sharing of domestic life, it is possible for there to be two households under the one roof. There is every reason to be confident that the courts here will follow this line of judicial reasoning.
The reason for allowing the four year period of separation to be cumulated over a five year period is to allow a couple to make a reasonable attempt at reconciliation secure in the knowledge that, if the attempt does not work out, they will not have put their chance of getting a divorce at risk. Such reconciliation will be facilitated by the substantially increased financial support which the State has made available to counselling organisations in the last two years.
The four year period itself is a guarantee that spouses will not enter into a divorce without giving the matter considerable reflection. It may also be conducive to the spouses reaching agreement on the terms of their separation in a way which will ensure that, if the divorce petition does come before a court, many of the key elements relating to children, finance and property will already have been settled between the spouses. In this way, the hearing itself may well be less acrimonious than it otherwise might be. The absence of acrimony would clearly be beneficial to any children of the marriage concerned since it is a matter both of research and of common sense that minimal conflict means minimal trauma for such children.
With a view to maximising the chances for such agreed settlements, the Government has already made increased funding available to the family mediation service. In addition, a development plan has been drawn up which will see a more extensive mediation service becoming available throughout the country.
The terms upon which individuals may obtain a divorce will be seen by some as restrictive. However, while compassion demands that we alleviate the plight of those individuals whose marriages are long since dead, it does not, I believe, require that we introduce a divorce regime into this country which will be easy and quick. Our society must deal with the problem which arises for those people in second relationships who cannot remarry because there is no divorce here. The Government proposal which is designed to meet that problem is balanced and measured. It recognises that people deserve a second chance at securing their happiness within the confines of a stable marriage while, at the same time, it seeks to ensure that marriage itself is not devalued.
The second condition of which a court must be satisfied before a divorce will be granted concerns the absence of any reasonable prospect of a reconciliation between the spouses. Clearly, if such a possibility exists, it would be inappropriate for a divorce to be granted. That is also the reason legislation will specify that the divorce proceedings may be adjourned at any time to enable the spouses, if they both so wish, to effect a reconciliation.
The third condition is designed to ensure that vulnerable spouses and dependent family members are provided for. It ensures that the court must be satisfied that proper provision, having regard to the circumstances, exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law. The latter phrase is designed to cover a child where a spouse is in loco parentis, for example.
The draft Family Law (Divorce) Bill assigns to the court extensive powers, which mirror those already available to it in the context of judicial separation, to make financial and property adjustment orders in a way that is designed to do justice to both parties and to any dependent members of the family.
These powers include the ability to make a maintenance order which might be periodical in nature, or a lump sum payment. Orders for the direct deduction of maintenance out of the paying spouse's earnings may be made. A property adjustment order, whereby property may be transferred either to a spouse or to a dependent member of the family, is also possible. Detailed provisions will govern the position relating to occupational pensions so that, for example, a court may "earmark" a portion of the retirement benefit of the spouse who is a member of a pension scheme. In this way, when that person dies, the benefit will be paid direct to the former spouse. It will also be open to a former spouse to "split" the pension benefit so as to create an entitlement to an independent and separate benefit. The position with regard to succession rights is also dealt with comprehensively.
The draft divorce Bill also provides, as does the current legislation which allows for judicial separation, that in the making of all financial and property orders the court must have regard to a very broad range of matters. This ensures that the circumstances of both spouses can be evaluated in full. In particular the vital contribution of a spouse who has chosen to look after the home and care for the family must be given the appropriate weight when it comes to the overall adjustment of property.
The fourth condition in the amendment is that a court must be satisfied that any further conditions prescribed by law are complied with. In the draft divorce Bill, it is provided that the courts may only exercise jurisdiction where either of the spouses is domiciled in the State at the time of the institution of the proceedings or, alternatively, is ordinarily resident in the State throughout the period of one year ending on that date. That is a potential statutory example of such a condition.
The proposal contained in the Fifteenth Amendment of the Constitution (No. 2) Bill is buttressed by a decade of legislation in the family area which is designed to support the family, both materially and otherwise. It is accompanied by a draft Bill which clearly spells out the detailed provisions which would apply if divorce is introduced here. The structures which allow for counselling and mediation are in place which will assist those couples who wish to obtain guidance in resolving differences in their marriages or who are willing to negotiate separation agreements on an amicable basis.
Legal aid will be available to individuals seeking a divorce in the same way as it is now available to persons seeking a judicial separation. The Social Welfare (No. 2) Act, 1995, ensures that a divorced person will not be at a loss in terms of his or her social welfare entitlements. Detailed taxation provisions have been devised which, in essence, mean that divorced couples will be treated the same way for income tax purposes as separated couples. Similarly, property transfers between former spouses on foot of a court order governing a divorce settlement will be exempted from all capital taxes. These provisions must be seen as a package geared towards ensuring that divorce, if introduced here, will have the legal and administrative context that is necessary to underpin its working.
The position of children under our laws has always been of special importance. That importance is signalled by a considerable body of law which has been initiated by this Government and successive Governments in recent times. Support services also continue to be improved. The Government is committed to reform in this area and the Family Law Act, 1995, and the Domestic Violence Bill are part of that process. The amendment Bill is framed to ensure that the welfare of children on dissolution of a marriage is protected and the divorce Bill contains a series of measures which allow the courts to make orders in support of those children. These measures already exist in the context of judicial separations.
It has been suggested that the introduction of divorce will undermine the welfare of children but this takes no account of the obvious harm to children that must in reason follow from being in an irredeemably unhappy home. The deepest hurt to children comes from the conflict that is present in families that are the victims of marriage breakdown and, where abuse and violence have been a problem, remarriage must have the benefit of restoring the children to more harmonious family households.
It has been suggested that the property rights of divorced spouses will be unfairly compromised. This ignores the vigorous and, I believe, successful work of the Oireachtas in putting in place a comprehensive regime to ensure precisely that this does not happen.
Most fundamentally, it has been suggested that the reform proposed here would undermine the very concept of marriage and the family as a permanent partnership fundamental to our society. This is an objection which I reject completely. The State has pledged itself to guard with special care the institution of marriage on which the family is founded and that is an honourable pledge which is being fulfilled through positive and affirmative action. It is not to be satisfied in a negative way by imprisoning individuals in relationships which have long since died, thereby condemning them to misery and an uncertain future. That is not a foundation for the basic social institution of the family on which our State can comfortably rest.
However much we might regret it, it is a fact that individuals are fallible and relationships, however hard they may be worked at, will sometimes break down. Our society cannot be so uncertain about its own inherent strength that it needs to deny to individuals in such relationships a further chance at married happiness. We surely have greater belief and trust in our own capabilities than this denial would suggest.
The Government's proposal recognises that we are a society and a people with deep attachment to the family. It also recognises that the common good is not necessarily threatened by allowing persons another chance to remarry, albeit in limited circumstances. It will be a matter for deep reflection by many voters as to whether the type of good fortune they have gained in marriage might be allowed to fall to others less fortunate. No one who forms an intention to marry can ever be said to enter that most important of institutions with anything other than the expectation that the love and happiness which they share at the beginning will endure for a lifetime. Indeed, the fact that so many marriages remain life long unions, notwithstanding the pressures of modern life, is something of which we as a society can be proud.
I believe that we can continue to be confident in ourselves and in our ability to sustain marriage as a valuable and esteemed institution. I also believe that this is a confidence which will allow us in the referendum to respond with compassion and understanding in so far as the plight of so many of our citizens is concerned. I look forward to hearing the views of Members of the House in this important debate. I commend this Bill to the House.