Dáil Éireann - Volume 366 - 15 May, 1986

An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Dara Céim (Atógáil). Tenth Amendment of the Constitution Bill, 1986: Second Stage (Resumed)

Atairgeadh an cheist: “Go léifear an Bille an Dara hUair”.

Question again proposed: “That the Bill be now read a Second Time”.

Mr. Molony: Before the sos I quoted certain statistics from Northern Ireland which indicated very clearly that over the past several years there has been no dramatic increase in the number of divorce decrees being granted or in the number of applications for divorce. Apart from these statistics it is evident to people who know the community in the North that that society is not destabilised as a result of having a divorce law. That community has many other problems but I do not believe anyone in this House [1219] would seek to identify the existence of a divorce law as a destabilising factor. If people wish to find a community to compare with ours, in the context of what changes might be expected with the introduction of the divorce law, it would be fairer to look at a community closer to home, such as Northern Ireland, rather than quoting examples from the United States or Great Britain.

I find it difficult to appreciate fully the nuances of Fianna Fáil's position in regard to this Bill. We understand that officially the party have no view, that they believe a referendum should be held but that they are not offering a view either for or against the proposals being promulgated by this measure. However, Members are entitled to hold whatever view they wish and to campaign as they see fit. Having listened very carefully to what Deputy Woods, the Fianna Fáil spokesman, said yesterday, and particularly to his expressions, for example, that if this legislation were passed it would become a constitutional Frankenstein that would lie low at first and subsequently stalk the land, he spoke about the creation of constitutional orphans and said the Government could be described as taking a sledgehammer to family life and other gems of emotional hyperbole, it struck me as extraordinary that Fianna Fáil decided, against the advice of Deputy Woods, not to have any view as a party. Either they have very little regard for the views of Deputy Woods — I will not comment on that — or they are playing some sort of game.

Every front bench Fianna Fáil spokesman, with one exception, has spoken against this measure and they have done it in a very subtle way. What Deputy Woods did yesterday was, I thought, rather clever given the difficulty Fianna Fáil have in deciding which position to adopt in this debate. At the end of his speech Deputy Woods summarised in nine points the difficulties he had with this measure. Each one he disguised in a way which suggested that his problem was with the detail of this measure. He said on the subject of divorce there were [1220] some people for it and others against it, but in reality almost all the nine points he mentioned against this measure were essentially arguments against divorce as such. I cannot understand why he did not have the courage to come out and say he did not believe we should have a divorce law. Deputy Flynn, who no doubt will be speaking shortly——

Mr. Flynn: The Deputy will be in no doubt about what I believe.

Mr. Molony: I have never been in any doubt about Deputy Flynn's views on any subject, and credit to him. In our party Deputy Cooney and Deputy Glenn have made their views know, and full credit to the people who are prepared to stand up and say they are against divorce, they are entitled to hold their views, but what I do not like, what I take exception to is the type of cod-acting we had yesterday from Deputy Woods who spoke about the pros and cons of divorce in this country and elsewhere, what some people think, what the Roman Catholic Church think, and what other churches think. Then he listed nine points which he purports are difficulties he has with the detail of the Government measure but which on analysis clearly show that this is an effort to have a go not just at the details of this measure but at divorce, but he lacks the courage to say so. I put it to Deputy Woods as Fianna Fáil spokesman, to declare his position. I know what his difficulty is.

Mr. Flynn: What is it?

Mr. Molony: Deputy Woods and Fianna Fáil are afraid to indicate to urban Ireland, particularly the densely populated urban areas like Dublin, that they are a party of the past in social terms, that they are a party of no change, that essentially they do not want to see change and that, apart from some flowery contributions we had from Fianna Fáil speakers who ended up discussing the Forum report, they do not believe in accommodating the different traditions in this country, that they do not believe in a [1221] true republic and they do not believe we should have anything in our Constitution except views that reflect the Fianna Fáil belief in things, and apparently the Roman Catholic Church's belief in things.

It is even more interesting that not only Deputy Woods but none of the Fianna Fáil front bench has said he or she is in favour of divorce, but they are against this measure for one reason or another. I will watch with care to see what develops. What is even more important is that Deputy Haughey, the Leader of the main Opposition Party, is out of the country while we are discussing a Bill to amend the Constitution.

Mr. Flynn: That is miserable and the Deputy knows it.

Mr. Molony: It is a fact.

Minister for Health (Mr. B. Desmond): He is in the cathedrals in Strasbourg.

Mr. Flynn: I will——

Mr. Molony: It is a fact.

Mr. B. Desmond: He is locked in contemplation in Strasbourg.

Mr. Flynn: That is mischievous and the Minister knows it.

An Leas-Cheann Comhairle: Deputy, please.

Mr. Molony: Deputy Haughey should be noted as being meticulous in his attentions to this House.

Mr. Flynn: He is.

Mr. Molony: Of all times in the history of this Dáil when we are discussing a most important amendment to the Constitution he finds himself absent from the House. I find that extraordinary. If there is a reason I will be glad to hear it.

Mr. Flynn: The Deputy will swallow his words before the year is out.

[1222] Mr. Molony: I am merely citing as a fact that Deputy Haughey is not here this week. If Deputy Flynn can explain it, so be it, but I am very surprised that the Fianna Fáil spokesman or somebody from Fianna Fáil did not find it necessary or even desirable to explain to the nation and to this House at the beginning of the debate why Deputy Haughey was absent. On Tuesday he was visiting his MEPs in Strasbourg, something he can do at any time. Deputy Flynn has the explanation for this. It was described in one newspaper as a strategic absence.

Mr. Flynn: I wonder who inspired that little gem.

Mr. Molony: I do not know just how strategic it was or was intended to be, but I submit to this House that it is a slight on the House and on the importance of this historic debate that Deputy Haughey should absent himself for it. I pay credit to Deputy Flynn for his directness in dealing with this subject. He is against divorce for reasons he has explained and which we understand, but damn few front bench people in Fianna Fáil are willing to come into this House and say whether they are in favour of divorce or against it. Some of them are hiding their reasons——

Mr. N. Treacy: They are hiding nothing.

Mr. Molony: ——behind damn silly arguments relating to the detail of this Bill.

(Interruptions.)

An Leas-Cheann Comhairle: Deputy Treacy, you have just arrived.

Mr. Molony: I challenge Deputy Treacy to listen to the detail of the argument I am going to use about Deputy Woods's speech yesterday and I will hear with interest what he has to say about the detail of his party's objection to it. Let me note in passing that Deputy Haughey is not the only member of the Fianna [1223] Fáil Front Bench who is absent from this debate this week.

Mr. N. Treacy: What a misnomer.

Mr. Molony: Before going into the detail of Fianna Fáil's nine points of objection to the measure, I will mention what Deputy Glenn and members of Fianna Fáil have referred to in this debate, that is, the importance of Article 41 of the Constitution and what it means. I do not wish to challenge in any way the sincerity of those who argue that it is important that we reflect in our Constitution that the family is a fundamental unit of society and that we want to keep it that way. I agree entirely and I consider it proper, but we should not be carried away with the notion that Article 41 has done all that much for the family or, for that matter that Article 41, drafted and written as it was in 1937, reflects fairly the type of views people have about society today. For example, two sections of Article 41 are far from representing what we believe our Constitution should say about the family. Article 41.2.1º states:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

Article 41.2.2º provides:

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Those sections contain an implication that may well have found broad acceptance in Ireland in 1937, but today many people hold the view that they reflect, unfairly, the type of position we regard woman as having in our society today. Perhaps this Article could be amended in other ways to reflect more properly the type of society we want to have, and that we have.

Another thing to be borne in mind is that Article 41 has not been all good. It [1224] has been cited as the Article which has created a situation where several hundred legitimate but abandoned babies are not capable of being adopted. Notwithstanding the fact that there was a demand, legitimate children abandoned by their parents, sometimes for years, are not capable of being adopted because of their legitimacy. The reasoning behind that has been the belief that the courts would have to respond to Article 41 in some way, that by permitting the adoption of legitimate children, though they may be abandoned, the intention and purpose of Article 41 might be offended. I do not believe it ever offended the intention of the Article. I can see grounds for taking the view that the adoption of a legitimate child in those circumstances might have been challenged in the courts if one of the parents later sought to do so.

However, I do not believe that Article 41 should be accepted as good enough. I know the view about the interpretation of that Article may be changing in respect of the adoption of legitimate children, but it is sad that since 1937 legitimate children who were abandoned have not been capable of being adopted. We should not be proud of that. We should not rush around singing the praises of the Constitution's concern for and interest in the family in view of some of the consequences of that provision.

I am not sure this House can hold its head high and express the view that family life is all we believe it to be in that we as a State and a community should be proud of what we have done when it comes to the family. There have been a number of cases with which too many Members of this House have been all too familiar in recent years — for example, the Kerry babies case and the case of Ann Lovett from Granard — which did not reflect well on the attitudes that exist here to children either within or without the home. It is highly questionable whether we should praise our society in view of some of the happenings in this State over the past couple of years. Maybe it is time we examined far more closely our bona fides in this regard.

I move now to the detailed response [1225] by Deputy Woods here yesterday to the Government's measure. I am asking Deputies to consider carefully whether all of these nine points can fairly be described as objections which could be limited or directed solely to the Government measure. I suggest a great number of these points are arguments against divorce and some of them are arguments against annulment. I believe that Deputy Woods was engaging in some sort of copout yesterday when he recited in his very long speech all these different points and expected people to believe him. I want to say one thing that should be refuted. I do not know whether it has been refuted on this side yet. Perhaps people did not notice it.

Deputy Woods claimed early in his speech that this Government were concerned solely with this problem and had nothing else to think about. That is absolute rubbish. I was sorry to hear Deputy Woods so early in his speech engaging in that sort of play-acting. Let me come to the detail. In his conclusion he listed nine points. The first was that a very low threshold was to be used to decide if a marriage was no longer viable, that the word “failed” was so subjective and undefined that the courts would find it impossible to avoid a liberal and unrestricted basis for divorce. Deputy Woods must know that what is contained in the Bill will go into the Constitution.

The Government indicated that a description of irretrievable breakdown will be incorporated in legislation. Deputy Woods is also aware that irretrievable breakdown is being used because of the fact that the fault system — and that there is broad experience of this almost everywhere where there is a divorce jurisdiction — is not a procedure conducive to mediation or reconciliation. It is the Government's intention in the matter of divorce legislation that mediation and conciliation would play an important part. If that is to happen it would be most imprudent of the Government to proceed on any other basis except that of irretrievable breakdown.

I think it was also in relation to that, that Deputy Woods suggested that a [1226] court might decide a marriage had failed when a couple had their first row. Perhaps he intended to be flippant and I will not take it any further. I did not understand his reference to the fact that adultery, impotence or an inability to communicate successfully, were not grounds upon which a divorce should be granted. Maybe I misunderstood him, but I should like people to read the major part of his speech where he went into detail in this regard. Certainly the last three grounds I mentioned are substantial and, if they persist in a marriage for five years, there is no doubt that the marriage has irretrievably broken down and is suitable to be considered for a divorce application.

Deputy Woods in his second point said that the use of the word “failed” would permit unilateral divorce at the request of one party only and that a court would have no other option but to accept the view of one of the parties that the marriage had failed, regardless of the view of the other spouse. Deputy Harney dealt with that question this morning and I find it hard to believe anybody would argue that where a couple are married and one of them decides, for any reason, that the marriage will not work and persists in that attitude for a period of five years, the marriage as a relationship existed after that period. It defies commonsense and I am sorry Deputy Woods did not elaborate a little bit more because I do not understand what he meant. It is an argument which one could apply to a divorce law even if it was a period of 20 years instead of five years, or it could be used in annulments.

Deputy Woods' third point was that the Bill allows for divorce on demand once a couple have been married for five years. It is astounding rubbish that the official spokesman for Fianna Fáil could say the Bill allows for divorce on demand when a couple have been married for five years. I am not surprised Deputy Woods did not convince his party in this regard, if he actually believes that. Perhaps Deputy Flynn would like to comment on this point.

Deputy Woods' fourth point was that [1227] the Bill is particularly inadequate in providing financial support and security for a divorced spouse and the children of the first family. He said the financial needs of the wife and children will be determined once and for all at the date of divorce and that the proposed constitutional provision will not allow these needs to be reviewed over the years should circumstances change. That latter statement is untrue. The Bill does not prohibit an arrangement being made in legislation whereby there could be a return to the courts afterwards to get an increase in maintenance or to change the circumstances in some way. Even where a couple enter into a marriage separation agreement and decide there should be, say, a once off payment of anything from £10,000 to £50,000, or a payment of £50 per week to one of the spouses, this House has long recognised and written into legislation the right of either spouse to go into court and have that agreement between the parties altered.

There is nothing in the Bill which would prevent that happening and I would be surprised if the legislation to be introduced by the Government when the amendment is accepted by the people did not include provision for such an agreement. Deputy Woods, in failing to elaborate, has not made the position clear but, in any event, his remarks are untrue. I should like to remind him that the very same point can be made in relation to a marriage which has been annulled. In the earlier part of his speech, Deputy Woods seemed to be in favour of a new system of annulment but the point can be made just as strongly in regard to annulment. Essentially, he is saying that, once a couple are married, there should never be a change of any kind.

Deputy Woods' fifth point is that the measure gives no constitutional protection to a spouse who is considered not to be dependent on the partner seeking divorce. That argument can also be made in the case of annulment because, if we brought State law in line with the Church law on this, the marriage would never have existed and, therefore, there would [1228] be no protection whatsoever. I do not believe it is an argument and the courts have taken a sensible view of the question of dependency. I know a couple living in my constituency who have broken up after being married for three years. They are very young and will still be in their twenties in five years' time. They do not have any children and are both working. In five years' time I am sure the courts would say to that couple that they are both working and there is no problem.

Perhaps it might be advisable to write into legislation that, where a court so decides, they could review the question of dependency and there is nothing in this measure which would prevent that happening. It can be considered at a later stage but it also applies to annulment and indeed to any form of divorce. It should be noted in that regard in the United Kingdom, where obviously the Roman Catholic Church have an annulment system similar to that operating here, that they will not allow people to remarry if they have obtained an annulment in the Catholic Church without obtaining a civil divorce. They do that for the sound reason of bringing order regarding property, succession rights and maintenance rights within the marriage because the Church have no function in ordering these arrangements.

Deputy Woods' sixth point was that the proposed amendment provides no protection for the assets or income of any spouse, for example, a shop or farm which may belong to the husband but which was built up over the years by the mutual efforts of both spouses. I must challenge Deputy Woods as to his knowledge of the current state of law. The Married Woman's Status Act, 1957, and case law since that Act have developed a very effective means whereby a couple, without getting divorced or separated, can divide the property between them. This Bill does not do anything to alter that. It is preserved and recognised. There is nothing in the Bill which can change or affect it in any way. It is recognised in our law but, even if it were not, it is an argument that arises against annulment or against any form of divorce. It is [1229] an argument that can be made against any form of divorce one might design.

Deputy Woods said the succession or inheritance rights of a spouse and children of a first marriage are left unprotected and transferred to the second family. That is misleading. It is proposed to write such a provision into the Constitution and to ensure that it is written into the ultimate legislation. Yes, it is the case that there will be a division of the capital assets whether it be house property, farm, business or whatever at the time the divorce is applied for. What does Deputy Woods want? Does he want the rights of the first family postponed until the death of the person who is married the second time? That does not make any sense. It is an argument that one has to use, if one believes in the argument which I do not, against any form of divorce or annulment.

If there is ever to be a break, whether by annulment or any form of divorce even a divorce system designed by Deputy Woods, that argument arises. The only way to deal with it is to provide that, when the application for divorce is made, effect is given to the rights of the parties of the first marriage. It may be that provision can be made for reconsidering their position in the future in the event that a change arises, but I challenge Deputy Woods to show where that measure does any harm to the argument he has made in regard to it. The reality is that the court must be satisfied that adequate and proper provision is being made. Deputy Woods' argument applies to any form of divorce and annulment and it cannot in any circumstances be used as an argument against the measure before us because it is not.

Deputy Woods suggested that existing social welfare benefits, for example, widow's pensions, deserted wife's benefits and dental benefits, are transferred to the second wife and that the State would presumably assist the divorced wife and children on a means test social assistance basis. In relation to a couple who do not have means and rely for an income on social welfare I suppose some arrangement like that will be made by the State [1230] and I do not see anything wrong with it. It may be that Deputy Woods is not making a complaint there, but he describes it as an objection he has to this measure. However, that arises even in regard to an annulment or any form of divorce. Again, the essential point is that it is not an argument that can be properly made against the measure before us.

The final point made by Deputy Woods was that the rights and protections enshrined in the Irish Constitution and designed to protect the family based on marriage would be transferred to the second marriage. He said the divorced spouse and children of the first marriage would become constitutional orphans. That is a pleasant little piece of emotional hyperbole. Will he explain the position in regard to the child of a couple who get an annulment? Will he call that child the issue of nothing which is the same as a constitutional orphan, if that is the type of language he wants to use? The problem is the same; it is a human problem of enormous proportions. It is a reality we have to deal with all the time here whether it is 20,000, 30,000, 50,000 or 70,000. It does not matter what the children are called, although Deputy Woods saw fit to describe the children of broken homes as constitutional orphans. That arises in an annulment or in any type of divorce system. In my view the Deputy is being a little bit flippant at the expense of those who are involved in very difficult and tragic situations. It is not an argument that can be made against the Bill as a measure in itself.

Last night on television Deputy Woods managed not to say whether he was in favour of or against divorce. He saw problems arising and had real difficulty with this measure. I have just outlined his reasons. I would prefer Deputy Flynn to be spokesman for Fianna Fáil on this issue because what we would hear from him would be straightforward, direct, logical and consistent. At least one could argue fair with fair. Deputy Woods' speech yesterday was insidious because it sought to mislead the Irish people at a critical time. It was an extraordinary [1231] speech in many ways and when the pastoral letter of the Bishops is published — the contents of it were reported in yesterday's issue of The Irish Times — I shall look at it with great care and compare its words with those used by Deputy Woods. I went to some trouble to get a copy of Deputy Woods' script which contained details of that pastoral. I suspect that many of the arguments used by Deputy Woods were arguments he did not fully understand. He may not have been well briefed on his subject but I will wait and see what the position is in that regard.

I urge Fianna Fáil to clarify their position, as a party, on this issue because it appears to me that they are playing both sides. They are not willing to tell Irish urban society what the truth of their position is. They lack that courage as a party. I accept that there are individuals in the party who are quite prepared to do it, but Fianna Fáil are lacking in leading opinion in other parts of the country and helping to generate and bring about change. That is a great pity.

I should like to comment on the position of the Roman Catholic Church on this matter. Many people were critical of the Taoiseach when he said he would consult the Churches. In my view he was absolutely correct and prudent to do that. I should like to make it clear that I believe utterly in the separation of Church and State but this is the one area we have dealt with in the Dáil where the interests of the Church and State overlap in the sense that the Roman Catholic Church actually subsume the marriage ceremony functions and conduct them on behalf of the State. They have a clear definite interest in this area. The Church have been operating a counselling service in marriage, at the commencement of marriage and where marriages run into difficulty, through CMAC. Many of the people in my area who are involved in that work have impressed me with the dedication they put into it. It is remarkable what has been achieved in the area. Unquestionably the guidance and counselling given to young people starting into marriage have been of great benefit and [1232] of enormous support and aid to people who got involved in marriage difficulties. The Church are deeply involved in this.

Up to some years ago I had some difficulty with the question of divorce because I saw problems arising in the event of an amendment like this being passed, but I do not believe the problems that might arise are of the nature I believed them to be some years ago. The way I have rationalised my position on this is that I regard divorce as a civil right. It is not something anybody likes to see, but I regard people who find themselves in matrimonial breakdowns having a right to regularise their position. Those people should have a right to remarry provided the obligations both parents have to their first family are properly looked after. The Bill before us provides for that. We must be one of the few countries where that is written into the constitution. The State also has the right to impose restrictions to ensure that social order is maintained. It is a difficult balance to achieve but I believe we have found the balance.

I read carefully the statements issued by the Hierarchy on this subject and I am trying to reconcile what I know to be the sincere interest and concern they have with what I see as a problem we face as legislators. I have to approach this on the basis that I see this as a civil right. It must be said that the fact that the Roman Catholic Church do not want the provision in the Constitution altered is unique amongst Churches. All the other Churches take the view that it should be changed. The Catholic Church believe that a divorce law would be a harbinger of fundamental change, that it would be offensive to our society and what we want. The Church have an absolute right to say that if that is their view, but it must be pointed out that in that they are offering a view on social policy and on a social situation. The Hierarchy do not have any expertise any more than any other group of concerned citizens have having looked at the subject. Different views prevail on that point.

Second, it is important to note that as far as I am aware — and I have made [1233] inquiries about this — legislation, legalising or not legalising divorce, is not a matter of doctrine in the Catholic Church at all. I might describe it, with every respect, as more a matter of social policy in the Church rather than a matter of doctrine within the Church. I have already cited the example of what happens in Great Britain when the Church annul a marriage, that a party will not be remarried within the Catholic Church without the applicant arranging his affairs by way of civil divorce, at least in the eyes of civil law.

In the Bishops' pastoral letter, as reported in yesterday's The Irish Times, the essence of the case made was, and here I quote:

Estimates suggest that there may be as many as eight million divorced Catholics in the United States the majority of them remarried outside the Church. It is as though the legal availability of divorce builds up a social pressure which, for large numbers of people, becomes stronger than moral or religious resistance.

I suppose that is a fair point and I cannot deny it. But it is equally the case that there are millions of people in the United States, born Catholics, who no longer attend Mass. It is equally the case that there are millions of Catholics around the world, particularly younger Catholics, who live with somebody, or have children by somebody. They do not marry. Of course, I am not suggesting that the Church would seek us to reflect in our laws a law that would ensure that people remained Catholics of good standing. I know that is not their intention. But it seems to me that there is a break in logic when it comes to this, that there is an element of special pleading involved.

I was very struck by Dr. Cathal Daly's oral submission to the New Ireland Forum on 9 February 1984 when he described the difficulties the Church had with divorce. In regard to religious and civil rights he said:

It is not for us to formulate proposals for constitutional change or to draft [1234] blueprints for a future Ireland. That is the business of legislators. Because a new Ireland could take so many different forms we could scarcely be expected to say what our Christian position would be in reference to this or that specific problem in a united Ireland. What we do here and now declare, and declare with emphasis, is that we would raise our voices to resist any constitutional proposals which might infringe or might imperil the civil and religious rights and liberties cherished by Northern Protestants.

I may be wrong in saying this but it is my profound belief that Protestants — whether they live in England, Scotland, Wales or the North of Ireland — even though as is evident from the statistics I quoted earlier do not all want for themselves access to divorce, believe it is a religious or civil right they have.

I do not believe we should enact this legislation simply because Northern Protestants might regard it as a civil right. The real question is whether we regard it as a civil right. That is the nub of this issue. I have given a lot of thought to that. I have come to the view that if this House decides we are going to ask the Irish people to change the Constitution in this respect and allow divorce, then it means that the legislators believe it to be a civil right. Frankly, I believe that, if the legislators believe this to be a civil right, the Roman Catholic Church, or any other church, should not and do not have the right to say it is otherwise. They may have a sincerely held view but if the nub of the question is as I believe it to be — whether or not this is a civil right — then, if we pass this Bill, we declare this question to be a matter of civil right. The Irish people will have to decide whether they want to adopt this proposal but we, as legislators, are taking the view that this is a civil right.

The last point I want to make is that, whilst all of the polls indicate that most people in the country want to have a divorce law in a restricted form, there should not be any complacency about this matter at all. I have already indicated [1235] Fianna Fáil's duplicity in their standing and expressed position on this. I know Deputy Flynn will be playing an active part in the campaign, as will many other Members of the House. I understand that the Catholic Church will be issuing one million leaflets, presumably containing the Bishops' pastoral letter. I would hate to think anybody in this country might, some time in July, reflect on and regret the fact that they did not vote on the date of the referendum.

Mr. Flynn: I am pleased to be afforded an opportunity to place my personal views on the record in so far as this Bill is concerned and the introduction of divorce into this country is concerned.

I have to admit that marriage and the family are under great pressure at present. I see that pressure being brought about by the very difficult unemployment position, the level of poverty, the great hardship that renewed emigration is causing so many families. These are only some of the things that create great pressure on family life. I believe these pressures are having a negative effect on marriage. There is no doubt that it can be clearly shown that marital breakdown is increasing to some extent. I also regard it as the duty of legislators, the Government of the day, to do everything possible to reduce those pressures and provide the remedies to reduce the tensions in society which generate those pressures on marriage and the family. I see no evidence over the past few years under this Government of measures being taken to lessen those pressures in any way on the family and society generally. In that respect the Government must stand indicted for their lack of interest in bringing to fruition any of the policy or legislative changes recommended in the report of the Joint Committee on Marriage Breakdown.

The Fianna Fáil position, contrary to what Deputy Molony might say, has been clearly stated in our statement of 25 April last. In that statement we made it quite clear that we would consider carefully all aspects of the proposal, that we would [1236] consider the effects divorce would have on families and on the nature and quality of society. That was a very reasonable thing for us to say. We also accepted that there were different opinions held by different members of the party, sincerely held by very many and that, as a party, we would not therefore campaign politically in the referendum. We said we hoped the debate would take place in a careful, considerate way, that it would not be along party political lines, rather that individual members of the party could, in any way they thought fit, contribute to or participate personally in the referendum campaign. It is the understanding that many of us will do so.

We have stated on more than one occasion — and it has not been altered by any speaker on this side of the House — that inevitably the matter will be decided by the people, that we accept that there are many with different views, that nobody is being brow-beaten into taking any particular stance. That is another reason I have been afforded an opportunity to put my personal view on the record.

Mr. Kelly: We will all be like the B Specials in plain clothes, breaking up these superstitions but in their private capacities.

Mr. Flynn: Indeed I presume my view is already on the record in the debate on the report of the Joint Committee on Marriage Breakdown. I am quite sure everybody quite clearly understands my personal position in the matter. But it is just as well to avail of another opportunity to put it in precise terms on this occasion.

We need an informed debate — I agree with that. We must avoid the acrimonious kind of build-up now evident in this debate. I would have to say that acrimony has been started and generated by people on the other side of the House. We would like to think the House would weigh up objectively and conscientiously the implications of bringing in divorce legislation. We draw a lot from the experience gained [1237] by other societies who introduced and use divorce in their jurisdictions.

Experience shows now, and the empirical experience is there, that marriage does change rapidly with the introduction of divorce legislation. It does become a temporary contractual arrangement. We must honestly admit that once the principle of divorce is conceded, no matter what limiting conditions are applied, the inevitability is that there will be greater liberalisation until a “no fault” divorce system becomes standard practice.

It is grossly unfair to condemn individuals, or Churches for that matter, for taking a determined stand in support of their point of view. It would be unforgivable for the Catholic Church, as the custodian of the moral teaching of the majority of the electorate here, not to pursue their stated theological position that marriage validly contracted cannot be dissolved by human power. That principle has guided Church thinking for centuries since the very start. We have the word of the Church that they reject the concept of a confessional State. Indeed, Bishop Cathal Daly referred to that in his forum contribution in February 1984, stating quite clearly that the Church do not see a Catholic State for a Catholic people. In fact, he went so far as to say that the alliance of Church and State was harmful to the Church and harmful to the State.

As far as I am concerned, what the Church are doing is simply challenging the social expediency of introducing divorce and recognising re-marriage in society because they believe the institution of marriage and the family will be destabilised and undermined. It is the right of the Church to point out the moral implications of the proposed legislation now being introduced into this House. Regrettably, I have to refer to one of the remarks made by Deputy Molony in regard to Article 41 of the Constitution that he is of the opinion that the vast majority of the people in this country do not now see any great relevance in that Article but I shall deal with that later on.

Mr. Molony: That is not so; it is unfair.

[1238] Mr. Flynn: The Constitution in Article 41 pledged itself to guard with special care the institution of marriage on which the family is founded and to protect it against attack. It also provides that no law shall be enacted providing for the granting of dissolution of marriage. We all know that. It is because of this commitment in the Constitution to protect marriage and the family that we should exclude divorce from Irish law. It has been proved conclusively that divorce does not strengthen the demands of the Constitution but rather leads to the dilution of the stated aims and principles of Article 41.

I draw the attention of the House to the report of the Joint Committee on Marriage Breakdown, page 89, paragraph 7.8.30 where it was the opinion of every single member who served on that committee — and I was one of them — that the basic emphasis of Article 41 should not be altered in any way and that it should continue to place a duty on the State to protect the family and the institution of marriage, and to recognise the family as the natural primary and fundamental unit group of society. As far as I am concerned, divorce runs contrary to the agreed opinion of the unanimous wish of those members of that committee.

I believe divorce based on failure as now proposed in the Bill will have a very serious impact on society. It will have serious moral and social consequences. It will change the character of society for the worse in this country. It will introduce a radical change into society and change the complete legal understanding of marriage as we now see it. It will weaken family structure here and will make the upbringing of children much more difficult. It will put them at risk in certain circumstances.

Divorce transforms an irrevocable commitment for life into a temporary contractual arrangement, a terminable commitment revocable by either spouse at will at any time. Divorce allows a spouse to obtain a divorce against the wishes of the other spouse. It allows the spouse to obtain a divorce against the [1239] wishes of the children. It lessens the right of the spouse to financial support. It lessens the right of surviving spouses under the Succession Act of 1965.

In many countries today divorced wives have restricted rights to succession. A judge may completely wipe out the succession rights when granting a divorce. That does not apply here now, but it certainly is the case in other jurisdictions where divorce legislation operates. Divorce aggravates the situation to which it is proposed as a response. The international evidence of the considerable hardship which follows divorce is also available to us, when spouses are divorced without their consent. I do not believe divorce can be confined to limited circumstances of cases. That has been proved conclusively. It is impossible to achieve that aim and it has failed in every situation where it has been tried. It cannot be done and will not be done in Ireland, either.

These are some of the social issues which are often being ignored by many of those who would ask us to introduce divorce legislation. There are questions to be addressed by the legislators here first and then these questions have to be understood and addressed by the electorate afterwards. What is proposed is not a restrictive form of divorce legislation. Irretrievable breakdown and/or failure is the basis for the most advanced and unrestrictive form of divorce anywhere it exists in the world. This is not the starting point for a moderate legal reform. Failure is the end product of a long evolution in other jurisdictions. In every country where introduced, legal restrictions on divorce proved themselves to be unworkable and they were progressively abandoned. One has only to look at the situation that exists since the introduction of divorce in other jurisdictions to have that point proved beyond yea or nay.

Some reference was made to the fact that the Leader of the Fianna Fáil Party, Deputy Haughey, was absent and, as Deputy Molony suggested, out of the country for strategic reasons. I presume he takes that phrase from one of the daily [1240] newspapers today. I have not been asked to defend the Leader of the party in what he is doing at this time, but I do know and can put on record that that is untrue. Deputy Haughey is abroad on business of a very important nature that had been agreed and arranged for at least six weeks before this debate was finalised by the Whips. As he is most attentive at all times, and has been traditionally, to the business of this House, he certainly dearly wished to be here for the start of this debate, but it was not possible for a very good reason. Agreements and arrangements had been made to meet many important personages in very high office in certain places in Europe.

It was because of the mess generated by the Coalition Government in so far as the agricultural sector is concerned and other matters relating to the Common Agricultural Policy and other various matters as well that Deputy Haughey thought it mandatory on him to try to save the day for Irish agriculture and for others in difficulty at this time. It is regrettable that people would try to read something into that while those arrangements of which we were very fully aware have been made for up to six weeks. Indeed, I am satisfied the Whips on the Government side were aware of that fact for some weeks in advance, also. However, these things have a way of getting out and the wrong construction being put on them.

I should also like to take the opportunity, now that it has come up, to refer to something concerning Deputy Haughey in the newspapers this morning in relation to a question of some kind of alliance which was reputed to exist between the Catholic Church and the Fianna Fáil Party. That is a lie also. I am probably the one person who can state that positively. Above anything else, if I have a particular view on this question I have to state I have never been contacted, spoken to, cajoled or in any way compromised by any member of the Hierarchy of the Roman Catholic Church, or of any other Church for that matter. I do not know where people get the idea that there might be some grand alliance between [1241] what we do here and what the Catholic Church, in their right, are going to do in so far as this campaign is concerned. I would like to put on the record that it is not true.

Perhaps it is that certain individuals are seeking confrontation in so far as they are trying to generate a political debate out of this Bill. Perhaps they are trying to create a political fight which will involve Fianna Fáil in some way. Our statement of 25 April stands and it is not going to be altered by anything which would appear in the media or anywhere else. A balance has to be struck in so far as the reporting of this debate is concerned. Many questions have been raised, some have attempted answers, but it is mandatory on the media to report accurately what transpires here on both sides of this argument and to explain and inform the electorate so that they will have an opportunity of deciding in their own good time which way they want this country to go. These are the serious questions which have been raised and they demand a response. I have the greatest faith that the media will take that on board. The people will then decide and I have no doubt but that legislators will then act on their instructions. I sincerely hope that the electorate will reject divorce when it eventually comes to them.

The Christian ethic cannot lightly be set aside. Those who would seek to cast it aside or to seek to convey that it has no influence on their thinking are, to my mind, less than honest. Introducing divorce would give respectability to actions totally at variance with Christian ethics. Those who facilitate actions that offend that ethic must share in the consequences for society afterwards. One may try to persuade oneself and one's neighbours that he did not intend in his legislative action to contribute to hardship in family life or to the break-up of family life, but if that is the foreseeable consequence he is not entitled to plead ignorance or excuse himself from taking the right action.

Divorce legislation may be a matter, as Deputy Molony suggested, of civil law [1242] rather than a matter of reality. It, however, must be conceded that it also has inescapable moral implications for society. We cannot legally enforce morality or impose virture by law, but certain laws can make virtue more difficult. Consequently, law and morality are inter-linked. The law has an influence on the moral attitudes and behaviour of people. Law is regarded by society as what is socially and morally acceptable. Many people regard what is permitted by law as also morally right. Experience has shown that civil divorce does lead to the acceptance of divorce and remarriage as morally right and normal. The availability of divorce leads to acceptability. This is totally contrary to Article 41, which we are committed to support and protect.

The first concern of legislators must be and should be the well-being and common good of society. Surely, it must be universally agreed that the well-being of society is closely linked with the stability of family life. Anything which would be perpetrated or done which would weaken that is contrary to the well-being or the general good of society. I believe that divorce is such a thing and it would weaken and destabilise marriage and family life in this country.

For a long time much reference has been made to the numbers involved in marital breakdown. I spoke about this last December. I was hoping that that was going to be the end of it and that people would not use statistics which have no foundation; but it seems that every second speaker who comes in still trots out the same old hackneyed figures without giving any statistical basis for them whatsoever. One would have thought that they would have waited at least until the census returns were available before actually claiming any figure for marriage breakdown. The labour force survey is the only repository of information in that regard which we have to rely on at this time. Its figure is 21,000. As I said before, it does not matter whether it is 21,000, 2,000 or just two, it is two too many. The regrettable part is that the Divorce Action Group seek to suggest that all those people, [1243] whether the figure is 21,000 or 70,000, are seeking to remarry. I do not accept that. There are no accurate statistics in support of that claim. All of the estimates which have been trotted out here are purely conjectural. It is wrong to suggest that all or even most of those who are involved in broken marriages either desire divorce or approve of its introduction.

Many deserted wives — I know some myself and I can state this positively — are determined to oppose divorce. The statistics of broken marriages cannot be identified with the statistics of demand for divorce. While people might think that I might not be always fully aware of difficulties which exist in so far as marriage breakdown is concerned, let met put it on the record that I meet in my constituency work, even in rural Ireland and in the west, many who have difficulties. But I would say that I have put it to every single person who has sought my advice or assistance with this difficulty over the past few months if in fact they were seeking divorce as a solution. Out of the total I can honestly say that fewer than three suggested to me that divorce was the solution to their problem. I also have to say that I am aware of some women whose husbands left them many years ago and who got divorces in other jurisdictions. I took the opportunity also of asking them and, to my surprise, each one of those I asked — not many, I agree — stated that, even though their husbands had divorced them in other jurisdictions, they were not going to vote for divorce here. Therefore, it is not true to say that all those who have marital difficulties and suffer marital breakdown are somehow expecting that this is the panacea for all the ills of their situations and will somehow relieve them of all their difficulties. They do not. I must say that quite a number of people will be surprised at the number and the types of people who will be voting against this legislation.

Indeed, I will give a further instance from my personal experience which, I believe, speaks volumes on this matter. It happened quite recently in my office in [1244] Castlebar when a lady, who stated she was not a supporter of mine and who indicated that she would not be a supporter of mine in the future either, pointed out to me — and she came to see me specifically to say this and for no other purpose— that had divorce legislation been available in this country some 12 years ago when she got married both she and her husband would voluntarily have accepted it on more than one occasion in the first two years. But 12 years later, with a happy family of two, she said how pleased and glad she was to report that she did not have to go that road and that it was not available to her. That must speak volumes. Why should I or anybody else bring about a situation which would cause that kind of failure in Irish society?

Many people say this is a restrictive type of divorce. I have stated that it is not. It only takes a quick look at the jurisdiction across the water to understand how non-restrictive it is. Since divorce was introduced in Great Britain in 1857, it has become progressively easier to achieve until they can now get it on demand. In 1857 under the Matrimonial Causes Act it was introduced so that it could be made cheaper for individuals. In 1923 adultery by the wife was added as one of the causes. In 1937 desertion, cruelty and insanity were added. In 1949 it was divorce for all. In 1969 the cause of irretrievable breakdown was added. In 1973 it was no-fault divorce and in 1984 it was possible to get a divorce after one year. Can anybody say that was not a progression from difficult divorce to a free and easy divorce? We are taking on board the end of that evolution.

I was determined, when speaking on this debate, to express myself as best I could on all sides of the debate. Divorce for a very few could be a solution to cater for their personal problems. Why should I pressurise others to cater for the difficulties of the few when the stable relationships of maybe up to 600,000 families could be put at risk? It is compassion for the hard cases which leads many people to feel that divorce in some limited way is the solution. What I believe is needed [1245] is more support for marriage and the family, and not less. I would like to have seen a planned response to the factors which cause marriages to fail. No Government, Minister or anybody sponsoring divorce can say we have not had it clearly spelled out what those causes are.

We spent a long time in the Joint Committee on Marital Breakdown dealing with that issue, but nothing has taken place since. It was the dear wish of all those who served on that committee, from both sides of the argument, that immediate action would be taken to try to create the legal framework to tackle the causes of marriage breakdown. It is now expected that we will introduce divorce and that in some way other things might follow. That has not been the tradition here. I am not just sceptical about it. I am downright sure that, if divorce was introduced here, then that would be the end of all the pious hopes which have been expressed by others here in supporting legislation. Divorce accelerates the trends towards marriage breakdown that are already discernible in society.

I was disappointed at some of the remarks made by Deputy Harney this morning. I heard her speak on many occasions on this matter during meetings of the committee and outside. She makes her point of view in a stong unambiguous way. I was a little taken aback today by some of her remarks. I do not accept that politicians or political parties are trying to frighten or terrorise the women of this country. Personally I do not think the females of this country are that easily terrorised. To suggest that we are trying to terrorise them by trying to hype this up and to convince them that they would be much worse off if divorce was introduced is not true. It is true to say that their positions will be much worse should it come about. To suggest that people here are trying to create some kind of mass hysteria is taking language a bit too far.

Miss Harney: What about Frankenstein?

Mr. Flynn: I regret that Deputy [1246] Harney was not speaking from a script because if she was some of the intemporate language used by her this morning would not have been used.

Miss Harney: I meant what I said.

Mr. Flynn: She suggested that women are being cast aside as machines or chattels by men. I do not understand that kind of emotive language in so far as this debate is concerned. It is not true and it cannot be substantiated. It should not be stated in the House if it cannot be supported. What a sad attitude she has towards the relationships that exist between men and women. What a sad reflection it is on how she feels about family life in this country. She compounds it by saying it did not matter what the views of the other partner were, if one partner wanted divorce then that was that. That can only imply one thing, that the Deputy is not really concerned about the feelings of one side in a relationship.

Miss Harney: One a point of order, I did not say that and I ask Deputy Flynn to withdraw that remark.

Mr. Flynn: If the record shows that was not the case I would be happy to do so. I was present and I wrote it down in longhand. I am now pleased to here Deputy Harney say that was not her intention. Because she says that I will not pursue it any further.

Miss Harney: On a point of order, I want to tell Deputy Flynn that I said if one person in a marriage feels that the marriage has ended, then it has ended. Marriage is a partnership of two people. I do not want to be misrepresented.

Mr. Flynn: I take the point made by Deputy Molony. I intend to come back to other remarks made by Deputy Harney because they are critical of what is happening in the political system in so far as this debate and, indeed, other debates are concerned. I wish to refer to the contribution made by the Minister, [1247] Deputy Dukes, yesterday when he introduced the Bill. Just as Deputy Molony felt that a case was being made in a certain way by Deputy Woods, Deputy Dukes, as spokesman and Minister for Justice, was making the case in so far as the Government position was concerned. His speech was another example of the pious hopes associated with the introduction of divorce legislation in every country where it was introduced. The Minister for Justice made a very poor defence of the Government's decision. In many respects some of the things he said were misleading. Having listened carefully to him, I found it was impossible to find a valid argument in his contribution. I have picked certain passages in his speech for mention.

On the first page he referred to the Report of the Committee on Marriage Breakdown and he said that the majority of the committee felt that a referendum should be held. I would point out to him that that is not what a majority of the committee decided. We were all agreed that a referendum should be held, but many of the members who agreed pointed out that they wanted it written specifically into the report, at page 88, that the committee felt it important that it be stated clearly they did not necessarily imply support for divorce legislation. The clear inference from the Minister's speech is that the majority of that committee were in favour of divorce legislation and that they were seeking a vote of “yes” on this issue. That is not so.

The Minister apparently deliberately refrained from referring to the fact that a majority of the committee were against the introduction of divorce legislation. I should know, because I was involved in the taking of the vote. Therefore, the Minister referred to the report selectively.

I do not know how many TDs will support the introduction of divorce legislation. We must remember that this is not a “hands up” type of thing like a certain Senator on the committee attempted the first day we met two and a half years ago when she thought the [1248] proper way was to call “All those in favour put up your right hands and vote”. Senator Robinson got her answer from me then, and it was proved later that the majority were against the introduction of divorce. I would go so far as to say that the majority of TDs would be against divorce legislation. Those elected to this House were elected as the leaders of their communities to represent the attitudes of the people who sent them here, and if the majority of the people are against the introduction of divorce that must stand for something.

It is a pity the Minister for Justice did not give a balanced view. In his speech he referred to opinion polls which, he said, had established a certain trend in the recent past. If the Minister puts so much faith in opinion polls and if he has such regard for them why is he still here as Minister for Justice considering that all the opinion polls are telling him is that he has not the authority to be here and that Fine Gael are at their lowest level since the foundation of the party?

We have had opinion polls on poverty, on unemployment and emigration, and if the Minister is so taken by these polls and finds it necessary to respond to them I suggest that he should think again and not resort to such a weak argument in support of a point of view. He knows full well that the majority of the opinion polls were quite clear, that the people do not want a free for all no-fault divorce system.

The Minister in his speech said it will now be a matter for the people to decide, not the Government. However, he or the Government are not leaving it to the people. If they were, why are they sending in speaker after speaker to try to promote a certain point of view? Why are the Government leading a campaign and appointing directors of election, including senior Government Ministers, if they are leaving it to the people? Of course, they are trying to tell the people what to do.

We in Fianna Fáil want the Irish people to be given an opportunity to decide the matter without being talked into anything. One particular party said they were [1249] totally against divorce legislation but they have now decided they are not.

Miss Harney: Who are they?

Mr. Flynn: Now that the Deputy asks me, I will tell her. She said this morning that it is the aim of her party to support divorce but not to campaign as a party. I cannot understand that kind of double talk from the PDP. According to them, this is the new republican party and they would deal with these social issues. Now it is to be individuals who will deal with them. People who carry the label of TD do not support the kind of talk Deputy Harney gave us this morning.

Miss Harney: The vast majority of them do.

Mr. Flynn: That is a gem. We are getting double standards from this newest fledgling party. Let us consider what else the Minister for Justice said. He said the details of the Bill would be found in “the accompanying document”. It is grossly unfair to use that document, which has no standing or point in law. As far as I am concerned that is “other business”. That document was brought in by the Minister to try to mesmerise the uninformed. It implies that the Government will act in a restrictive way as far as certain things are concerned. The Government will not have that choice because the people will decide, and even if they decide to allow the Government to introduce divorce legislation the courts can do what they like once the Constitution has been changed. They will have power to act. It will not be a matter for the Government to have to live up to their proposals as outlined in the accompanying document. It is not fair to use the document to try to convince certain elements of the electorate that this will be a very restrictive type of divorce if the referendum is passed.

The Minister said he is against the position that states that legislation defines all marriage as dissoluble. He must consider us puerile if he thinks we will believe that. If divorce is introduced every child [1250] will know that henceforth there will be no such thing as an indissoluble marriage. The Minister also talks about “when a marriage ceases to be the source of happiness”. I have to tell the Minister that has nothing to do with it. A happy marriage can be dismantled at will for any or a whole range of reasons. All of us want to see happy marriages but to suggest that a happy marriage could not be dissolved for a particular reason is not true. Divorce could be applied to a happy marriage and this has happened worldwide. Divorces have been obtained, even in happy marriages, for purposes of property, money or other arrangements.

Mrs. Barnes: How could it be a happy marriage?

Mr. O.J. Flanagan: Liz Taylor said all her marriages were happy and she had seven or eight of them.

Mr. Flynn: The kind of loose talk in the accompanying document and in the Government's statement does not hold water. In the course of his speech the Minister uttered several asides and perhaps they had more substance than what was contained in the script. I cannot give his exact words but the essence of them was that no fundamental change would be made unless the people voted for change in another referendum. That is not true. I suggest that if the referendum is passed anything would be possible by a majority Dáil vote, having regard to the flexibility in the wording now proposed in the Bill before the House.

The Minister said the Government were fully committed to the protection of marriage but I challenge him on that. The Government cannot be fully committed to it if they are seeking to introduce divorce, resulting in the dissolution or dismantling of existing legal marriage contracts. He also said they would try to commit themselves to the protection of marriage in so far as that was realistically possible. I do not believe the Minister, the Government or anyone here is entitled to that latitude if they support the existing Constitution. It is obvious from [1251] some of the remarks made here today, from Deputy Molony in particular, from the remarks of the Minister for Justice last night and remarks in the past six months by the Taoiseach, that elements of the Government do not support the basics and fundamentals of our Constitution. That is regrettable.

The Minister said the Government's proposals are simply recognition of the fact that many marriages fail. I accept that marriages have failed but I do not regard this legislation as a simple recognition of that. I regard it as a much more fundamental change. As far as the Minister is concerned, the only answer he sees for people who have difficulties in their marriages is divorce. That is in direct conflict with the considered opinion of the vast majority of the members who sat on the Oireachtas Joint Committee on Marriage Breakdown. I accept that there are people who have difficulties in their marriages but the Minister and his Government could have done more for them if they had introduced legislation as, collectively and unanimously, we asked them to do so many years ago. It was grossly unfair for anyone to come here yesterday and say that this proposal to have divorce was an adequate solution to the difficulties encountered by so many unfortunate people. It does not matter to me whether the number of people concerned is 21,000, 70,000 or even 22: as far as I am concerned it is 22 too many.

The Minister said that in the Government's considered view the balance of the social good lies in the introduction of divorce in limited circumstances. I say to him he is wrong on both counts. The balance of social good will not be enhanced by introducing divorce. I do not believe what he is asking us to support is in any way regarded as limited. That is the considered opinion of all those constitutional lawyers and others who have considered the wording and no doubt between now and referendum day many of those experts will voice their opinions.

The Minister said to ensure that the proposals would not be in conflict with [1252] the provisions of the Constitution guaranteeing the protection of the family, they introduced the positive wording. There is a clear implication there that the Government are seeking to undermine the guarantee that divorce must be seen as diametrically opposed to the main thrust of Article 41.1.1º and 2º. How anyone can suggest that introducing divorce here will not in some way infringe on the thrust of that Article is beyond comprehension. I have to say that during the 18 months they sat every member of the committee recognised that divorce would be in conflict with elements of that Article. That was agreed even by those who were most vocal in support of introducing divorce. Now the Minister seems to imply there is some way we can guarantee the protection of the family and marriage while, at the same time, giving wholehearted support to the introduction of divorce here. That is not possible and the Minister had no right to say it.

The Minister went to some pains to explain that as far as he was concerned divorce would only be available in restricted circumstances. I put it to the Minister that he cannot guarantee that section of the legislation in advance of remarriage. Then the guarantee could be withdrawn, altered or, as is the case in the US and UK, terminated after a short period if the Legislature decided.

The Bill is a short one. The first three elements in Part II are totally non-restrictive. The question of a marriage failing has yet to be defined by anyone, constitutional lawyer or politician. As regards the marriage having failed for a period of at least five years, there is no statement as to whether it is at the beginning or the end of the five years. As regards no reasonable possibility for reconciliation between the parties in the marriage, one of the spouses could say at any time that no reconciliation was possible. A statement of intent is all that is necessary there. The provision that any other condition prescribed by law has been complied with is very vague. The Government are saying that perhaps they may do something and any statement of intent is purely that. I have heard of many Government [1253] intentions over the past few years on a wide range of subjects. Many of them were never brought to fruition.

As regards the maintenance of a dependent spouse, that can only arise after a divorce has been granted. One cannot guarantee that section in advance of remarriage. At that time it will be too late to do anything about it. In a word, the legislation is flawed. I do not like what it intends to do, but it is flawed anyway. The document is so full of holes that it is a poor defence on behalf of the Government to support their introduction of this legislation.

The Minister stated that divorce legislation would be child centred. What an abuse of the English language and the established thinking as far as divorce is concerned. Divorce is individual centred and in no country is it granted in the interest of children. I challenge anyone to deny that. Yet the Minister, in an aside in his speech, had the audacity to say their divorce legislation would be different and would be child centred. In other words, children first and everything else afterwards. That is not the case and cannot be so.

In another aside the Minister said he did not regard the introduction of divorce as a threat to his marriage but he felt it was necessary to provide the means for a solution for those who had broken marriages. I do not like that superman complex approach. Others have difficulty in their marriages and to discard them by saying: “I am all right and everyone else can look after themselves” is not very compassionate. I do not feel like that. I see people who have difficulties in their marriages and I should like to be part of a Legislature that would help them out. I would gladly give my support to measures that could and should have been introduced over the past number of years.

I am satisfied that if the measures I suggested earlier, which were spoken about so eloquently and reported so widely had been taken on board and introduced here they would not just have had my support but that of every holder of a seat in this House. What a wonderful thing it would have been in the eyes of [1254] our people and our neighbours if they saw that Dáil Éireann was prepared to take on board what was required to deal with individuals who had difficulties and allocate money to provide the necessary services to bring about a reduction in marital breakdown. Regrettably that has not been done. Hopefully when the referendum is lost the Minister will get around to doing something about the things he refers to as Government intentions. I await his response to that.

Marital breakdown is a tragedy for all the people concerned. It is a social problem for the members of the disrupted families and society in general. I recognise that. As a result of divorce children are denied an opportunity to be reared in a proper family environment. The children of divorced parents suffer psychological damage and have greater difficulty in establishing proper family relationships in later life. That has been proved in studies undertaken worldwide but not in Ireland. The one study I wanted the committee to undertake was in relation to establishing in a statistical way the incidence of marital breakdown but it was not agreed to by the committee. We did not have the few pounds available or the time necessary to complete such a study, but 18 months later we are talking about introducing divorce irrespective of the cost. One would have thought that as a prerequisite to the introduction of this legislation some Minister would have made an unambiguous statement detailing the statistics.

I understand that divorce means a legal dissolution of a valid marriage and a legal entitlement to remarry. Countries with divorce generally limited the grounds for divorce to cases of serious matrimonial misconduct such as cruelty or adultery. In practice, couples can quite easily obtain a divorce by mutual consent. They conspire together and invent grounds for divorce. That would be the case here. It is accepted that divorce granted on a limited fault based grounds simply cannot be controlled. It has not been controlled in any other jurisdiction. Are we so different that we will do what has proved impossible elsewhere? The evidence is [1255] there. Some Irish advocates of divorce suggest that a limited system is possible. That was the stamping ground for the Divorce Action Group and others who supported that point of view over the past year or two.

Those who are advocating that type of limited divorce have not studied the question and the empirical evidence available in support of the alternative view. They are just trying to deceive the public in the hope that they will mesmerise them and get the extra couple of percentage votes to put it over the hill. I do not believe it is going to be that close in the final analysis. I believe that when all the arguments are set down in a clear, balanced and responsible way the vast majority of people will not see divorce as a solution to marital breakdown. That is what it is being promoted as. It is not, and should not be promoted as such.

Internationally, following the failure of fault-based divorce, the trend has always ended up in a no-fault divorce situation based on irretrievable breakdown. Now, I understand the word to be introduced is “failure”. Advocates of this type of divorce argue that it no more than faces reality. People have said that, if a marriage is dead, what harm is it to give a death certificate or divorce decree. In fact, divorce based on irretrievable breakdown, or on failure of marriage, fundamentally transforms marriage, and that is every marriage. That is where the difficulty is, and I wish people would admit that. Divorce means that marriage is no longer a commitment for life. It cannot be a commitment for life once divorce is introduced, and that must fundamentally alter the whole concept of the family and marriage as we now understand it. That lifelong open commitment to marriage without divorce is replaced by a contract revocable at will by either party, and that is not denied by the Divorce Action Group or anybody in this House who supports the introduction of divorce.

But I wish it was reported clearly in the media that that is exactly the position. Divorce means that partners cannot [1256] make long term plans or take long term risks on the basis of a short term revocable contract. One of the penalties of the short term contract into which marriage has been changed by divorce is that marriage must be and is inevitably considerably weakened in providing the type of environment so vitally necessary for the children of a marriage to be brought up. As far as I am concerned — and nobody has proved to me otherwise — divorce undermines the financial support of spouses and children. The international experience is there. It shows that in the kind of no-fault system of divorce being suggested here this philosophy of short term rather than long term commitment has resulted in reduced maintenance for women and children. In the English courts, when divorced women seek an increase in the amount of maintenance to take account of the reduced value of money over the years, they often get quite a big shock. In December, when I was making this point, quoting statistics and reading from some of the files of court cases in this regard, Deputy Monica Barnes was in the Chamber and I saw her disagreeing with me by a shake of the head. But I have yet to hear her make the argument in support of the alternative view.

Mrs. Barnes: The Deputy will hear it.

Mr. Flynn: Deputy Barnes might wish to challenge the report of the English Law Commission in 1980, which states:

It seems that in practice, even in times of high inflation, an application for variation is more likely to result in a decrease rather than an increase in the amount ordered to be paid.

I am not going to detain the House by going into the great detail of the evidence that I put to this House last December in this part of the argument. As yet, nobody has confronted that argument; and, if they do, they are going to have to state the source of their reply so that I can check it out. The question of maintenance for spouses and children has been a great bone of contention and has led to [1257] reduced standards of living for women who have had recourse to the courts for help. Recent changes in English law have made the position of divorced wives even more precarious. Let me refer to something I said about that time when I quoted from documents I had about maintenance for wives. I said that in England legislation was enacted in the recent past which incurred the outrage of practically every women's group in the country when it was being enacted. That was clearly reported in the document Indissolubility and the Clear Break by Symes. I quote footnote 10, 1985:

The practical effects of the legislation obviously have yet to be analysed. The legislation gives the court power to dismiss without his or (almost always) her consent a spouse's application for periodical payments of maintenance after divorce, and to order that no further application for these payments may be made. In making an order for periodical payments or a lump sum in favour of a spouse, the Act requires the court, for the first time, to consider the appropriateness of exercising its powers so that “the financial obligations of each party to the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.”

In other words, it limits the financial support to a specific period beyond which no support entitlement can be claimed. The 1984 Act also removes the inheritance provisions in the Family and Dependants Act of 1975. Therefore, the court, when granting a decree for divorce, nullity or separation, can remove the entitlement of a spouse to apply for reasonable financial support out of a decreased spouse's estates even when the spouse thus barred does not consent to being so disentitled. In simple terms, for the first time a divorced spouse may at the time of the divorce be barred from his or her statutory rights of inheritance under section 2 of the 1975 British Act. I do not know whether people are taking any notice of the legislation that has been introduced in this way in the United Kingdom over the [1258] years. However, as far as I am concerned, it has been noticed by me since coming here that, irrespective of what we were discussing in this House, eventually and inevitably, in due course, we slavishly followed what was introduced in the Commons. If that is the case, there is no doubt in my mind that if divorce is once legislated for here there will be a demand from the pressure groups to have embodied in the legislation here some of the type of legislation that is now being practised in the English situation.

Internationally, divorce has resulted in increased financial hardship for women; and that has been the case not just in the UK but in other jurisdictions as well. There is a very interesting item in the Family Law Quarterly which is well worth putting on the record. I quote from volume 17, page 106:

The findings are unpleasant, revealing that decisions about property and support often preserve extensive financial security and freedom for former husbands while relegating children and former wives to futures at or below the proverty line.

I would not like to see a situation like this in Ireland in five, ten or 15 years' time.

Mothers with young children in the United States have been severely damaged by divorce and women particularly have been disadvantaged by divorce. The women who have been particularly disadvantaged — and I said it here in December — were older women who had devoted themselves to a life in the home rather than in outside employment. According to the Journal of Family Laws: “Divorce is an economic disaster for most women and children”. These are not my words; they are the words of people who carried out studies in countries where there has been divorce legislation for many years. I would hate to think that in a future Dáil Official Report we will read similar words following the introduction of divorce and after a few years experience.

[1259] Mrs. Barnes: Women are in that position now.

Mr. Flynn: These developments are not the results of the misapplication of the procedures in divorce but of their true application. Divorce says that marriage is not for life. If marriage no longer involves a commitment for life, short term and reduced financial support make sense. In support of that statement let me repeat something I said in December. I would like to put it on the record since it did not get a lot of attention at that time, but perhaps now is the important time. The real reason for the decline in financial support for divorced wives and children has much more to do with the nature and purpose of divorce itself. Divorce is designed to enable people to remarry. That is what distinguishes divorce from legal separation. Where marriage involves a commitment by both spouses to each other for life, it is reasonable and proper that this commitment should extend to financial support in sickness and in health for the duration of their joint life.

An Leas-Cheann Comhairle: Are you quoting?

Mr. Flynn: No, I made this comment on a previous occasion and I would like to put it on the record.

(Interruptions.)

Mr. Flynn: I regret that certain elements in this House do not think I am entitled to make my point of view known, as others did today, and I did not interrupt them. If some of the Deputies here do not support what I am saying or think my point of view not worthwhile, I want to put it on record that I might be articulating a point of view which might be held by more than half the electorate. If I am, I am entitled to express it.

An Leas-Cheann Comhairle: Deputy Flynn and every other Deputy offering should be allowed to make his contribution without interruption.

[1260] Mr. Flynn: I am well able to look after myself but I want to put it on the record that everybody will have an opportunity to contribute and if they are able to refute anything I have said, I will be pleased to hear them.

Where, as a result of divorce, marriage no longer requires a commitment for life but instead merely requires a commitment to continue for as long as either spouse wishes, then the lifelong commitment to support comes to be seen as a millstone frustrating the chances of a successful second or subsequent marriage. In other words, the second marriage must be allowed to thrive, even if this must necessarily lead to the restriction of the entitlement of the first wife to support. The values of modern divorce laws were spelled out with refreshing frankness during group discussions at the International Conference on Matrimonial and Child Support organised by the Alberta Institute of Law Research and Reform in May 1981. They said:

If we believe that divorce ends a marriage (as opposed to parenthood) and leaves one free for another marriage, it is difficult to argue that the ex-partners needs should come first. Thus, if only on the pragmatic grounds of giving the second marriage some chance of succeeding, and because divorced people who remarried would naturally put their new partnership first, many argued that the second family must take precedence. It is, incidentally, easier for an ex-partner to free himself economically and emotionally for a new partnership if, in strictly financial terms, his obligations to his ex-partner are clear and limited in time. This would be so if he has to support his ex-wife only through a transitionary period.

That is the kind of thinking that is being expounded, promoted and promulgated at all international conferences dealing with this question. I suggest that kind of thinking, while it is not referred to now — in fact, the opposite is suggested as the Government's intention — must inevitably come to be seen and to be expected [1261] as the inevitable downstream of divorce legislation if introduced here.

As far as I am concerned, divorce would weaken the legal protection of women in relation to the family home. At present the Family Home Protection Act, 1976, protects wives against vindictive spouses selling the house over their heads. When she contributed to the Oireachtas Joint Committee on Marriage Breakdown, Deputy Harney was very eloquent on this point and I support her. However, the Family Home Protection Act has been operated with a certain amount of compassion and sensitivity by Irish judges, not all the time, but by and large, and international experience shows that divorce undermines the rights protected by that Act.

In countries with divorce, divorced wives generally have no unfettered right to occupy the family home. Frequently they have to depend on discretionary permission from the court to stay in the house for a limited period. The reason for the weakening of their position is not hard to find. If a marriage does not involve a commitment for life, it would be inappropriate for the law to require a divorced husband to protect his divorced wife's occupation of the home. The man may wish to live there with his second wife. His first wife may restrict his opportunity to live with the degree of comfort he would wish for his second marriage and, as a consequence, the first wife would invariably be ordered to leave the house. I do not believe we would like to see a situation like that brought into play in this country.

Mrs. Barnes: It happens now.

An Leas-Cheann Comhairle: Is the Deputy quoting?

Mr. Flynn: No. I am referring to the succession entitlements which I believe will be damaged by the introduction of divorce. Under existing law when a spouse dies the other spouse has just succession rights in relation to the deceased spouse's estate. The Succession Act, 1965, gives effective protection to wives [1262] against being disinherited by their husbands. International experience shows that with divorce these succession rights are invariably weakened, although not always destroyed. Under legislation enacted in England in 1984 — and a lot of the legislation to which I have referred deals with the English position because they have had divorce for a long time and have a great deal of legislation backing it up — the court may make an order barring a divorced wife from applying for financial provision out of the deceased former husband's estate. This is consistent with the philosophy of divorce. If marriage is not a commitment for life, there is no point in attaching legal rights which will last until the death of either spouse.

There is a growing volume of evidence that divorce causes many children significant psychological damage and many studies have been carried out on this. The desire of children for their parents to become reconciled has always been there. They do not like, wish or want to see their parents divorced or separated, yet for the parents to divorce is to destroy the possibility of reconciliation. Divorce is concerned with the legal entitlement to remarry and the reason for divorce is generally to take up another relationship, and it is not for the Minister, Deputy Dukes, to say that divorce will be child centred. It has never been so and it will not be that way here if and when it is introduced.

The marriage breakdown committee dealt at length with the question of children and everybody expressed great concern that children must be in some way specially catered for and protected. However, when adults are considering divorce I am afraid they consider first their personal situation and the children invariably come into second place. Children are the chief casualties and victims of divorce and there is strong evidence from the US and other countries that children of divorced parents are prey to a whole cluster of psychological and emotional problems and personality disorders. That [1263] can be substantiated by recourse to evidence available from authorities in all of those countries.

Divorce is markedly spouse centred and is not a child centred development. Children are sacrificed to the interests of their parents. Children experience divorce as a rejection of them by their parents. No divorce system anywhere in the world has ever succeeded in satisfactorily assuring the welfare and happiness of the children. Indeed, the no fault, failed situation idea of divorce, if accepted, will mean that less and less attention will be paid to the rights of children. This is regrettable and it must be clearly stated so that the people who are to get the opportunity to decide on this matter will understand that the clear experience and evidence internationally, the empirical evidence, is that less and less interest is applied to the plight of the children once divorce legislation gets a grip.

It has often been said and was said here recently that children suffer more from an unhappy home than from divorce. Certainly children suffer in unhappy marriages or from potential separation without divorce. Nevertheless, divorce adds a dimension of damage to children over and above home tension or even parental separation. Studies available suggest that children prefer even an unhappy marriage relationship between their parents to the divorce and remarriages of their parents. Many children have been spoken to about this matter and the opinion of the vast majority is that they do not wish to see their parents divorced or to see difficulties in the home. They all stated that, whatever the difficulties, the chance of reconciliation and improvement is always there, but once the divorce becomes absolute they are taken hither and thither, to-ing and froing between fathers and mothers, stepfathers and stepmothers, and this has led to the most appalling problems for families and individuals in every jurisdiction where divorce legislation has been introduced. I am not saying there are not difficulties for children in this country [1264] now. I am fully aware that there are, but we will add further to them if we introduce divorce at this time.

Divorce upsets and disturbs all children involved in the short term and it affects them in the long term too, probably to a greater extent than is often commonly understood or realised. The degree of distress caused to a child arising from conflicting loyalties may lead to a severe loss of integrity, self-esteem and capacity for responsible judgment which can affect his or her spiritual, mental, physical, moral and emotional development. Divorce involves spiritual dilemmas for children as well as for adults.

It has not been agreed here, but it is well to put on the record that the experience regarding children produces a very sad statistic indeed in the UK. About one million children in Britain at present have divorced parents and it is estimated that about 1.6 million children will have divorced parents by the end of this century. Whatever the cost involved in that for the economy of the country, there is no doubt in anybody's mind or in any of the studies undertaken that the divorce situation that exists in Great Britain today has contributed substantially to that one million children living in conditions which have brought in their trail very great hardship for all concerned.

I refer as an aside to a study carried out in this country by a social anthropologist from Cambridge about 15 months ago who was studying Irish marriages. He found that the non-availability of divorce helped to stabilise marriage and encouraged couples to work harder at marriage. He found also that marriage is still seen as a powerful symbol and something to be valued in Ireland, and that in Ireland children were not used as emotional pawns in family arguments and brief separations. He found very much in favour of the situation that exists here. Whatever about the incidence of marital breakdown in this country, it must be stated clearly that the introduction of divorce would in no way be a solution to it and would in no way lessen the difficulties suffered by wives and children at this time.

[1265] I will finish by saying I hope the electorate will not pass this amendment when it is put to them. That is my personal hope. It is not the dictated view of the party, and I am pleased that the Fianna Fáil Party of which I am a member gave me the opportunity to state my personal view in this way. It shows the mature and responsible attitude of the party that they allow all expressions to be voiced here by those who see divorce as a solution and those opposed to it. I believe that if the balanced view being put forward by the Fianna Fáil Party in a responsible way is allowed to get over to the general public and if they are given clear understanding of the issues involved, in their own good time they will see that the introduction of divorce legislation and making marriage a temporary contractual arrangement as against a lifelong commitment will be defeated by the electorate in due course.

Minister for Social Welfare (Mrs. Hussey): I am conscious that very many Members of this House want to contribute to this major debate and on that account I intend to be brief. I was very glad to hear Deputy Flynn at the beginning of his contribution deprecating any degree of aggression or accompanying high temperatures which might have entered the debate in this House or elsewhere. We have had for the most part a fairly reasonable debate so far inside and outside this House and I am under no illusion about the self control required on the part of all of us in the coming months not to react to certain phrases or accusations that may be thrown about. Some of these are, quite naturally, seized upon by the media, highlighted in people's minds and are inclined to provoke equally violent reactions. I believe — a view which I am sure is shared by many others — in the absolute sincerity of the views held by those on both sides of this argument and it would be enormously helpful if the position of mutual respect governed the temperature and the nature of the debate. I very much hope we will be able to proceed along those lines and I [1266] welcome Deputy Flynn's remarks at the beginning of his speech to that effect.

There seemed to be a certain understanding promulgated by Deputy Flynn which perhaps he did not intend which seemed to imply that the amendment is introducing divorce. However, divorce can only be introduced by law as stated in the amendment: “Where, and only where such court established under this Constitution as may be prescribed by law is satisfied that...”. At the end of the amendment it says that “the court may, in accordance with law grant a dissolution of the marriage...”. The Government, therefore, very clearly set out the legal framework and the accompanying supports for marriage and reconciliation which would have to be in place before that law was enacted. It is a very broad and carefully thought out scenario — and there have been many calls for this — which will support and help people in marital difficulties. Because the amendment does not introduce divorce it was right for the Government to show our intentions in this respect.

The fears which Deputy Flynn expressed so eloquently for children as a result of divorce are also valid and apply equally to children in the present situation of marriage breakdown. That is a well researched and documented fact, and we are all agreed that the position regarding marriage breakdown and its effects on women, children and families generally needs to be improved. It is the considered opinion of the Government that part of that improvement involves the provision for divorce and we have clearly explained the safeguards and procedures which we clarified in the declaration of intention. Those safeguards and procedures are intended to improve the present situation which everybody agrees is unsatisfactory. Part of that improvement is the introduction of a provision for divorce.

Given the background of the general approach by Fianna Fáil to this question and the content of the views expressed by Deputy Woods and Deputy Flynn, I should like to address a direct question to the Fianna Fáil Party and I should be very interested in their answer. If the [1267] people vote yes in the referendum and if Fianna Fáil come into Government, will they comply with the wishes of the people and introduce legislation for divorce? From the tone and content of speeches by major figures in Fianna Fáil to date it seems in Government they might decide that the people were mistaken if they voted yes. Given the background to the major speeches we have heard, it is a major question which Fianna Fáil should answer. If Fianna Fáil were in Opposition, would they oppose divorce legislation?

A great many aspects of the debate have been exhaustively covered in recent years in this House and elsewhere. Some aspects of the Government's proposals are of considerable importance. I should like to join Deputy Flynn and many others in this House in saying that it has always been a very strong conviction of mine that marriage is for life. The stability of a developing home, the maturing and mellowing of a married couple when they become parents, the various stages of the family with all the ups and downs of family life and the final chapter of old age, ideally surrounded and loved by children and grandchildren, seem to be the very best foundation for a stable and sane society. For many people who have had the great good fortune to be part of such a family, it seems odd, even unthinkable, that other forms of living exist. It is an understandable view which, unfortunately, has led to a reluctance on the part of people who have been lucky enough to have been brought up in those circumstances to come to grips with alternative lifestyles.

This reluctance is illustrated by the length of time it has taken Irish society to recognise, for example, the existence of a deserted wife and her child, the unmarried mother and the battered wife. I recall when a colleague of mine, now the Minister of State with responsibility for women's affairs, drew our attention to the plight of battered wives, it was greeted by a great many people with frank disbelief. It is only in the past two [1268] decades that social legislation and support from the State have recognised that everything is not perfect in Irish families. As recently as 1970, the deserted wife's benefit was introduced and when other allowances and benefits were introduced for different categories of single parent families, there was not always a unanimous welcome for them.

Another aspect of attitudes which I find very interesting is that some women's organisations seem to consider divorce a women's issue. I always found that very difficult to understand although I could see it was natural that the issue of divorce should be taken up by people who were and are dealing very admirably, and in such a dedicated way, with a great many aspects of the vulnerability of women in a marriage which has broken down.

Divorce never was and is not a women's issue. People seem to have moved away from that point of view but it is something that puzzled me some years back. Perhaps one of the reasons that view was held was that in countries where divorce legislation existed the majority of applications for divorce came from women who, despite the great many disadvantages and problems they would encounter as single parents after divorce, felt it was preferable to living in a very difficult marital breakdown situation. That may have been a reason why some women here identified divorce as a women's issue.

In the past many women have been greatly concerned that it was precisely the opposite, an anti-women issue. I have detected, as other Deputies mentioned, an attempt to use this fear in the campaign against passing the amendment. The fear was and, where it still exists, is mostly based on a judgment that the Irish legal system would follow the example of other countries and would greatly undervalue and under-protect the fulltime homemakers' position in a divorce. That supposition was based on the fact that the professions, political and legal, dealing with these matters in courts or in the Legislature, are mostly male, mostly middle-aged to elderly, mostly relatively well to do and mostly educated in single [1269] sexed boys' schools which are notoriously conservative on social issues. A lot of people felt that this combination of factors would not be conducive to any sensitivity to what might be described as the grim realities of life for a woman alone, particularly a woman who had given years and years to a home, a husband and children to the exclusion of all else and who was, in regard to marital breakdown extremely vulnerable. It was also feared, and often still is, that as a corollary to this the rights of the breadwinner, who is usually male, to property and income would be very much over-emphasised by that section of our society who are responsible for the passing of our laws and the execution of our laws.

I must confess that over the years one of the reasons I kept silent on the issue of divorce was because I shared those reservations. Occasionally, I expressed them, but I was never involved in calling loudly for divorce legislation. At the time, however, like so many others, I became extremely concerned about citizens who had sad, lonely and often irregular lives as a result of their marriages going so badly wrong that they were beyond hope. They were precluded from a second chance. Those concerns grew considerably in society. It is because I have those reservations that I am immensely satisfied that in the wording of the Government's amendment, and the accompanying statement of the Government's intentions, great attention has been given to the position of dependent spouses and children. As well as that, we have specifically called attention to the opinion of the joint committee that a spouse, by giving up employment and thereby financial independence, should not be prejudiced in the matter of financial and property divisions. I was glad to see that paragraph in the report of the Oireachtas joint committee because it dealt with one of the main worries many have about the question of separation and divorce.

Again and again in the statement of intent, and more importantly in the actual wording of the amendment, the concern for the spouse and children is [1270] very clearly enunciated. The expression in the amendment is:

...the court is satisfied that adequate and proper provision... will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

“Adequate and proper provision” not only covers the question of financial provision, whether by the State or one of the spouses, but also covers many other things to do with the welfare of children and spouses. Any court which is dealing with these matters will obviously be required to give very special consideration to this aspect. The amendment wording and the declaration of intention together represent a considerable improvement on the present position, far from a worsening of it. I do not for one moment believe that this requirement either in the wording of the amendment or in the statement of intent will solve with a magic wand the undoubted severe problems of any family breaking up. Divorce or separation of any form are not a perfect solution to problems. But, unfortunately, the problems exist and they do not lend themselves to perfect solutions. Today without any divorce legislation many families are breaking up. New unions are being established and it would be a great improvement to have at least a clear commitment to the weaker partners and dependent children of a marriage. That clear commitment may well act as another brake on the divorce process but I would much prefer that we would err on the side of caution in this matter. In this society only 18 per cent of married women are in the workforce, the lowest in the EC. This emphasis in the Irish situation in the amendment and the accompanying document is essential.

There has been some concern expressed that the introduction of divorce would add greatly to the burdens of the taxpayer in terms of supporting two families. We must remind ourselves that the taxpayer is already supporting marital breakdown, particularly through the deserted wife's allowance.

William Duncan in his book, The Case [1271] for Divorce, argues that the absence of divorce makes it impossible for an estranged wife to establish a legally protected relationship with a second partner who might be willing to support her. In the case of divorce remarriage would be possible and the wife and her second husband would be bound in law to protect each other with mutual support and maintenance. Under the present laws, if a wife has an extra marital relationship, a second partner is not in law responsible for her support or the support of her children. In that context the argument that divorce may place an added burden on the taxpayer wears a little thin.

It seems to me that it is not a divorce or the prospect of divorce which causes the taxpayer in general to enter the position of supporting families but it is the initial marriage breakdown and separation. Obviously the question of the social welfare legislation supporting the family will need to be looked at carefully. It is necessary to have a look at the social welfare legislation governing the support of the family.

Fears have been expressed in the debate that somehow a person who has been divorced and who was not being maintained by the former spouse would be left without the State's financial support. I should like to assure the House that this will not be so. It must not be forgotten that the very purpose of the social welfare code is to deal with financial need, particularly the needs of the weaker and unprotected sectors of our society. I intend to see that the social welfare system is available in the most suitable and amenable way for individuals and families who may be involved in the divorce process.

It must not be overlooked that in the first instance the court granting the divorce will have to be satisfied that adequate and proper provision is made for dependants. In this context I have begun a detailed review of social welfare legislation in the matter of supporting the family. The system already supports families with a wide variety of schemes [1272] and services. In considering the situation arising from divorce, the schemes for the support of one-parent families are clearly the most relevant.

It is interesting to consider the number of such schemes which have been introduced over the years to meet the particular needs of special categories of these families. Examples are the schemes for widows, deserted wives, unmarried mothers and prisoners' wives. They arose over the years in a somewhat haphazard way in response to the way society felt at certain times that those categories should be protected. Some of them came on the scene rather late in the day to recognise that all was not perfect in an Irish marriage. However they arose, they show that the social welfare code is sufficiently flexible to cater for a wide range of families in different circumstances.

I should like to assure the House that in my review of social welfare legislation it will be of great concern that in the relevant areas of social policy the provision of support for families in distress will, in so far as is possible, be made in a way that assists them in staying together and overcoming their difficulties. In this context it is relevant to mention that the Commission on Social Welfare are just completing the task given them by the Government in mid-1983 to undertake a fundamental and wide-ranging review of all aspects of the social welfare system. I expect their report very shortly. The developments in the area of support for single-parent families will be carried out with reference to whatever related proposals the commission may make.

There are a great many other aspects to this amendment which are extremely important, which have already and will receive detailed consideration during this debate. However, I should like to place on record my esteem for and gratitude to the Joint Committee on Marriage Breakdown who did such fundamental work on this whole matter. The report of the committee and the Dáil debate that followed it mean that we approach this question in the right manner—at the end of a wide and considered, well informed [1273] public debate, and it seems to me, with a population ready to take a decision.

I am convinced that, in framing this amendment and the accompanying intentions for legislation, we have set about the right way in dealing with grave social and personal problems, which will not disappear or go away simply because they are unpalatable. We are giving to those who have quite definitely got to a point where a marriage has long been a thing of the past, a second chance. We are recognising a human and civil right for people to make their own decisions about remarriage. We intend to do so with the kind of divorce processes which actively protect marriage, encourage reconciliation and investigate alternatives but which, in the final analysis, recognise reality. That is what we are about and what we are putting before the Irish people.

Mr. Conaghan: I welcome the opportunity of putting my views on this important issue. I want to advance reasons why this proposal should not be accepted by the people. In doing so I should like to place on record my views in relation to many of the issues which are the cause of the unfortunate circumstances in which many married people now find themselves. I fully appreciate and recognise that there are many couples experiencing difficulties in their married life.

The Joint Committee on Marriage Breakdown examined in considerable depth the various aspects of marital problems. They recommended solutions in areas of potential difficulty. Perhaps understandably, because of the deep divisions in attitudes held by the public generally, the members of the committee left other aspects for further debate and consideration. The committee probed cases of marital breakdown and outlined the consequences that could result from a variety of remedies for individuals and for society as a whole. There is considerable agreement found in the report but it is also obvious that there were differences, mainly in respect of solutions in the areas of particular difficulty.

I believe we need to protect marriage [1274] and the family, that the family unit is fundamental to the well-being of society and of the State. The people responsible for formulating the 1937 Constitution clearly recognised that and included an Article which stipulated the lines on which the well-being of the family would be guaranteed. Considerable changes in attitude, resulting from social changes, have taken place since 1937; but the philosophy that motivated those people who formulated the Constitution in regard to ensuring the well-being of the family is as relevant today as it was then.

The family unit is subjected to tremendous pressures in modern times. Social attitudes and needs have changed dramatically. Not so many years ago economic circumstances, particularly in rural areas — where a husband, wife and children needed to combine energies and resources merely to exist — meant there was little time to think about separation let alone decide on it. I do not need to outline the changes that have occurred in recent times, where in many instances husbands and wives work, are financially independent of one another, and the effect of that on attitudes. There may also be the case of a husband and wife being unemployed, subjected to the all-pervading advertising in the media and the pressures that brings on families. The influence of these and other pressures on the individual today necessitates not only recognition of the rights of the family but also that the provisions of the Constitution in that respect should be accepted and acted on fully in order to secure the well-being of the family unit.

Much more needs to be done if we are to put into practice the provisions of the Constitution in respect of the family. That is not to say that nothing has been done. I realise that it has become the “in thing” to suggest that the terms used in respect of the family in the Constitution are just pious platitudes but that little has been done in a practical manner. Social legislation has been adopted, education has been upgraded, housing improved and great strides made with regard to our health services. The problems confronting families today are different but, in [1275] many instances, no less difficult. Their positive identification and a search for solutions are crucial.

With regard to the importance of education in the preparation for marriage, the need for a structured approach to ensure that those preparing for marriage are made aware of their duties, obligations and rights and the practical means by which these can be put into effect, it has been said with more than a little truth that for far too long those making the most important decision of their lives — namely, to marry — did so without any preparation whatsoever. The need for education and careful study, accepted as being necessary in the case of every other decision in life, appears to have been overlooked in the case of marriage. In the case of marriage it was accepted that two people simply met, decided to marry and hoped for the best. In earlier times when the background of most people was rural, there did not appear to be much need for preparation for marriage because then the family became an economic unit, its existence dependent largely on a close-knit working unit or group. Today economic and social conditions have changed. I am anxious to see the provision of a comprehensive programme, within our educational system, designed to prepare people properly for marriage.

The emphasis on such a programme must be on its comprehensive nature. It must not be confined to what is loosely termed sex education. It must concern itself with the totality of relationships. It must be about the respect of one human being for another human being. It must be about communication and understanding. Reference to marriage as such need only be introduced incidentally in such a course. The course must concern itself with relationships and have a bearing on all facets of living. It must have more understanding if we are prepared to see the point of view of the other person. If we are ready to respect others, whatever their social standing, class or creed, because they are people created by God, then much of the turmoil in [1276] people's lives would begin to abate. If through our educational system we could improve attitudes towards our fellow human beings, we would be laying the foundation for the preparation of young people towards more responsible adulthood and ensuring that they approach the serious decision of marriage in an adult and responsible manner.

I am of the opinion that our educational system has concentrated far too much on a rather narrow definition of the person and that the be all and end all of the system appears to be to get good examination results. The pressure today to get as many points as possible in examinations effectively squeezes out the ultimate, much more important development of a human person in himself or herself and their relationships with their fellow human beings. Thus, we produce people, who, whatever their academic or technical achievements, have no concept of how to relate to their fellows and their marriages could be doomed even before they think of marriage.

This can apply at all levels of society. The restructuring of our educational system in this respect at all levels is fundamental to achieving our objectives. As our educational system stands today, it would be quite reasonable for school authorities and teachers to point to the work load and say that there is simply not the time to concern themselves about matters that do not relate to examinations. It is not that they do not wish to promote human relationships but that the system does not permit it. Therefore, I am convinced that, as all of us are in agreement about the importance of the family and the need to protect it and take cognisance of the tremendous pressures on the family today, it is vital that we act speedily in the educational sphere to provide the necessary structures to combat problems that were not even thought of a few short years ago. Changes in the educational system are needed to combat modern insidious pressures on the family, the institution which we all appear to have accepted as being the [1277] cornerstone of the well-being of the nation.

I dealt with educational development at some length because I believe that properly structured development could transform the scene in years to come. At the same time I recognise that there are breakdowns in relationships and that considerable numbers of people are experiencing grave marital problems which we must endeavour to tackle and try to overcome in the short term. There is an urgent need for the development of counselling services at the pre-marriage stage. This is a matter which in recent years has been given considerable attention by the Churches, who have recognised the needs for counselling and have made considerable progress in the area. Indeed, they deserve our thanks and congratulations for this. However, the Churches have limited resources and the State must accept that it also has a responsibility. I would suggest that the State might consult with the Churches and voluntary organisations engaged in this work to see how best it can help. The State could clearly benefit from any efforts that would stabilise marriage. Though it is a fact that we have at least a framework of pre-marriage counselling, we have little or no help in after-marriage counselling. Indeed, there is very little support or assistance for married couples.

It is most important that problems which arise in the early years of marriage are tackled quickly. The difficulty is that such problems may for quite a time be recognisable only within the immediate family circle and cannot be tackled because those concerned do not know where to turn, or may not have any place or anybody to turn to. We are aware that many marriages break down in the early years of marriage. Adjusting to the new state of marriage by two different personalities can be difficult, especially where there is very little preparation for marriage. But we have done very little to provide the services needed in such circumstances. There is therefore a grave need for locally based counselling and other services, well advertised, so that couples in need know what is available [1278] and where they can go for help to have their problems discussed, in the hope that they may be solved.

Marriage is a lifelong commitment and young people contemplating marriage should be mature enough to understand and appreciate the responsibilities and duties which go with such a commitment. A rising over-indulgence in alcohol is a major cause of marriage breakdown, when it is noted that in 1982 the number of admissions to psychatric hospitals resulting from alcoholic abuse and alcohol related problems was 7,189. This in itself gives some appreciation of the problem. It is therefore the duty of the State to do all in its power to try to ensure moderation in the use of alcoholic beverages. Effective measures must be introduced with regard to under-age drinking and ensuring that the law is upheld in this area. Concern has been expressed by parents of teenagers about over-glamourisation of advertisements for alcoholic drink on television. Moderation must be the key word in the approach to this matter.

Lack of proper housing and unemployment are major factors in respect of marriage breakdowns. Divorce records in Britain show that there is a close association between social class and the incidence of divorce in that country. In 1979 the number of divorces per 1,000 husbands between the ages of 16 and 59 years in unskilled manual occupations was more than four times that for husbands in professional occupations. The difference was even greater for young husbands, the comparable rates for the 20 to 29 year age group were 55 and ten divorces, respectively.

Overall, the rate was highest for unemployed husbands who, it might be suspected, were disproportionately drawn from the unskilled for each age group. The divorce rate for the unemployed was double that of the national average. All of this must be a matter of concern for the Government and local authorities. The hardships and suffering of the unemployed is self-evident. Added to this, we must now note the severe effects which unemployment has on marriage and the [1279] family. If we are sincere in our approach to Article 41 of the Constitution, we must redouble our efforts to reduce unemployment and ensure proper housing for all our people.

Many of the matters to which I have referred come within the ambit of the State, namely, the provision and access to a pre-marriage guidance service and an easily accessible and effective counselling service for all married couples. The raising of the minimum age for marriage and ensuring that the law is carried out in respect of under-age drinking must get serious consideration immediately. When problems cannot be solved by mediation, we need a family court structure which can deal with the problems of marriage breakdown and, indeed, which can deal with other family matters as well. Such courts need proper staffing and a back-up welfare service.

A favourable decision on the divorce issue can only be arrived at if it can be shown to be for the greater good of society. I am not convinced that divorce is in the interests of society. I have already pointed out that I am keenly aware of the very sensitive problems facing individuals in the area of marriage breakdown, but it would appear to me that the cure would become worse than the disease. We must examine thoroughly the social consequences of divorce, and its financial implications, if we are to reach a proper conclusion.

Again, I emphasise the genuine hardship in a number of cases in this country and recognise the traumatic experience of those whose marriages have broken down, the agony, mental torture and physical abuse experienced by many during the course of the breakdown and the exceptional need for assistance in such cases. I have been committed, in the course of my public life, to doing everything possible to assist people who find themselves in such circumstances. However, taking into account the social upheaval which follows, I doubt that anybody could hold that the introduction of divorce into the countries where it now exists has been [1280] found to have been for the common good. Whatever may have been the good intentions, the granting of a divorce has meant generally the end of society's interest in those involved. Very often a Government, having passed the legislation, believe that they have done their share. In many cases one of the partners, and sometimes both, becomes the flotsam and jetsam of society which nobody cares about.

There is no denying the fact that where divorce is introduced respect for marriage and the family unit wanes and, however genuine the attitude of those who advocate divorce within certain limits may be its end result will be divorce on demand with the frightening social consequences that follow. Many of those who advocate divorce say that it should be granted only in cases of irretrievable breakdown of marriage. It has been proposed that such a provision should be written into the Constitution and copper-fastened there. However, I would make the point that implicit in such a proposal is that divorce for any other reason is unacceptable and would be damaging to society in general and to the family in particular.

In western countries where divorce was introduced there was specified stringent rules and regulations in respect of the granting of divorce, usually that divorce could not be granted except in cases of irretrievable breakdown of marriage. Invariably, as time passed, pressure grew for less control. The original condition was watered down and eventually divorce on demand became the norm. In Britain and America there is now one divorce for every three marriages and the figure is moving towards one in every two marriages. In Northern Ireland the number of divorces has escalated since divorce was introduced.

In those circumstances we must accept that, should divorce be introduced here and granted on the condition of irretrievable breakdown, we will find ourselves ultimately in the same situation as other European countries and America where divorce is permitted. Therefore, those who hold the irretrievable breakdown [1281] theory must accept that their proposal opens the door to the problems they obviously envisage in the granting of divorce for reasons other than irretrievable breakdown. Therefore, I find it difficult to understand how they can sustain the irretrievable breakdown proposal. Even if irretrievable breakdown of marriage was the only condition, one would have to ask oneself how can such a breakdown come about. One partner wishing to divorce and remarry can relatively easily contrive a marriage breakdown regardless of what the other person wanted.

I am concerned about the effects of divorce on children. Adults may or may not be able to cope in a divorce situation but children, who would be the main concern, cannot cope. They are the innocent victims of divorce proceedings. The traumatic effects on them relate not only to the time of the divorce but in many instances remain all through their lives. The director of the Yale Child Studies Centre, Albert Solnit, reflecting on the increasingly significant impact divorces have on American family life, said that this is one of the most serious mental health crises facing children in the eighties. In divorce children may not only lose a parent, they may also as a result of relocation lose their home, their school and their friends, because the parent they live with may often because of economic necessity work outside the home. The children experience more time alone and more time with other caretakers. For many children divorce means economic hardship. Many children experience feelings of guilt, insecurity, anger and depression. Nearly all of them cling to the futile hope of reuniting their family, although this is never likely to occur. Quite a percentage of these children never recover from the trauma and continue to be hurt and injured.

From studies which have been carried out it is recognised that, once children realise that their parents are divorcing, they enter a state of crisis. They feel that things have gone out of control. They cannot by their behaviour pull together their crumbling world. Parents often [1282] think there will not be a crisis. Since the home was previously loaded with tension they believe that through divorce children will gain a sense of relief from anxiety in the home. However, to ascertain the reality vis-à-vis the child, one must try to view it through the eyes of the child. We are all aware of the saying “When I was a child, I understood as a child”. A recent study has shown that less than 10 per cent of children experience relief at the time of a separation even though 30 per cent of them had witnessed scenes of physical violence between the parents. Five years after a divorce more than 50 per cent of the children did not consider their family lives improved over what they had been prior to the divorce. Although their parents had been unhappy, the children were fairly happy and did not believe — this is important — they were worse off than other families. The parents may have felt relief from the divorce, but the children's psychological health did not improve markedly.

Another aspect of the change is that often less money will be available. The family now have the expense of two households. Often fathers do not or are not able to contribute at the former level of support. It has been found that the average level of support for children of divorced parents was less than half the usual cost considered necessary for raising children. To quite an extent all children of divorced parents are insecure because they live with one parent and they fear what would happen to them if they were to be abandoned by the other parent.

Fear of being alone in the world is at the core of their perceived danger. Children need to be dependent, although they sometimes protest loudly to the contrary. Given the insecurity of their world, the need for dependence becomes obvious, especially in young children — for example, wanting to be in the same room, not going to visit friends, not wanting to go to school for fear that their parent, mother or father as the case may be, may not be there when they return. Children are often shuttled between homes. When marriages end up in [1283] divorce the arrangement could be that the children will live with their mother and see their father for a day each week at the weekend. During that weekend the children will have lots of games, eat at fast food restaurants, go on trips to the sea or to the mountains and new toys will be bought. But, when they return home and must fall back into the ordinary pattern of life, helping around the house, being disciplined and so on, the children become irritated with the mother and become disturbed.

Children pay a high price when a parent is removed from the family network. The father can be a very pleasant person in such circumstances. Again, however, studies show that after a time there is a steady decline in attention to the children; and for many fathers after two years there was a significant decrease in the amount of time spent with the children as well as in the quality of their relationships. I could say much more on this subject but I feel for the moment I have said sufficient to show how traumatic and how damaging to children divorce is.

We are told that polls show that more than half of our population would change the Constitution to allow the Dáil to pass divorce legislation. I wonder on what basis people have decided for divorce legislation? Have they studied or are they aware of the social and financial consequences? Is it because of their own personal situations or is it because of their knowledge of hard cases? Are they influenced by the media? Under the present law a married person may obtain a decree of judicial separation which entitles that spouse to live separate and apart from the other spouse, but not to remarry. Alternatively, a married person can enter into a legal binding agreement enabling them to live separate and apart from each other and continuing agreed provisions settling questions of maintenance and the ownership and occupation of the family home.

In the legislation now before us it is proposed to make a number of changes [1284] in the existing arrangements for judicial separation. Such separations in the future will be dealt with by a family court presided over by a number of judges from the Circuit Court especially assigned for that purpose. This change is to be welcomed. Procedures will be less formal and cases heard in the family court will be heard in camera. In all of these circumstances divorce, which creates so many problems for women and children, is not needed. The implications of divorce, if ever it becomes law, will be regretted by many of those who are now its advocates. In the case of a woman being divorced from her husband and a settlement being made, she is no longer a dependant and would have no rights under the Succession Act. In the event of her divorced husband dying she would have no claims to a widow's pension. In the event of her divorced husband remarrying a new family is then set up and under the articles protecting the family in the Constitution the new family would be fully protected under these laws and would have inalienable rights above positive law. A divorced husband's second wife could take an action through the courts against any part of her husband's property or income being paid over to his first wife with the full support of the Constitution.

The White Paper issued by the Government on marriage, separation and divorce has no legal standing and therefore too much cannot be read into it. While I fully accept and acknowledge the difficulties of many people, the setting up of family courts, as proposed, and legal separation is the way that these problems can be dealt with. It has been conclusively proven in countries where divorce is the law that it has created more problems than it has resolved. Our prime concern should be for the protection of the family, which was the prime objective of those who went before us in the drafting of the Articles relating to the family in the Constitution. If these Articles are now to be changed the protection of the family within the Constitution will be severely weakened and unfortunately women and children will be the losers.

Will the introduction of divorce resolve [1285] broken marriages? Will the children of broken marriages find peace and contentment in the event of either parent remarrying? Will it relieve the State of the responsibilities in relation to contributing factors to broken marriages? Some examples of the causes of broken marriages are unemployment, bad housing, drink problems and drug addiction. It will have no effect in these areas other than to add to the problems and to bring untold misery to women and children. Can we afford to impose this burden on our nation by allowing people to remarry and, by doing so, destabilising what is the cornerstone and the foundation of our society?

I have the deepest sympathy for people who are deserted by their spouses and left to fend for themselves and their children. The State and the community must do everything possible to help people in such circumstances. Marriage is a contract and a commitment by two people for life. Have we the right to weaken this and to place many more people in the circumstances which I have outlined? I do not believe we have. As a legislator, I believe it is wrong to introduce divorce for the reasons I have given and I will campaign for a “No” vote in this referendum. I ask that the amendment to the Constitution to allow people to remarry be rejected.

Mr. O.J. Flanagan: I have always believed very conscientiously in the real essence of democracy. Hence I must believe in a referendum. Generally speaking in referenda on every important issue to consult the people, to ask their views and to obtain their votes on major issues is the real essence of democracy. For that reason I welcome a referendum on divorce. I have some questions to ask the Minister. From the beginning of this debate up to now practically everything has been said for and against. There are certain aspects of the whole referendum, its cause, its purpose and perhaps its results, which have not as yet been cleared up in this House.

It is a great breath of fresh air that for the first time since the setting up of Parliament we have an issue on which [1286] Deputies from all sides of this House can express their views. Can there be anything more difficult than for one to continously vote and speak on something they inwardly do not believe in? It is a great breath of fresh air for a democratic Parliament that all parties are permitting their Members to speak out their minds in relation to this conscientious problem. That has not come about without some sacrifice from some of the senior Members of this House. If we did nothing else, as a result of our speeches and votes we have helped to bring about a situation in which every Member of this Parliament, of this freely-elected assembly, can say what they have to in relation to this constitutional matter.

In relation to the economic problems which are linked to this matter, 40 textile workers in my home town lost their jobs during the week. There are 9,000 unemployed in my constituency. There are farmers, students and teachers in distress. We have a society which presents serious crime. Our prisons are full. There are growing numbers of alcoholics. Old people are beaten up and robbed and occasionally their lives are taken. These are all very serious problems. Our society is on the verge of complete breakdown and collapse. There are 250,000 people unemployed, but there is no anxiety in Parliament to rush referenda or legislation through in order to relieve their plight. Economically we are in a very serious position. Our taxpayers are not in a position to pay the heavy levels of taxation, either in VAT, PRSI or other forms of taxation.

A couple of weeks ago there was no money to make any further offer to teachers. Apparently, the money has been found to conduct a referendum. Where is the demand for divorce in this country? There has been no demand. There are 650,000 married people in Ireland. We are told that there are 35,000 broken marriages. Of the 650,000 married couples in Ireland only 6 per cent have broken marriages, but you have a demand by that 6 per cent to put at risk the marriages of the 94 per cent. Through the media, that 6 per cent of marriages [1287] which are broken have been given the power, through agitation, to force the Government to provide divorce. Consequently, 94 per cent of all marriages in the country are being put at risk. Let no man say, or woman, to give her equality——

Miss Harney: Great.

Mr. O.J. Flanagan: That constant agitation and pressure on people in high places and on the media have succeeded on behalf of the 6 per cent of those marriages that have broken down. As I have said, that 6 per cent are putting at risk the marriages of 94 per cent of couples in Ireland. That will happen if the Irish people are foolish enough to pass this law. There is nobody as shrewd as the Irish voter. He is no fool, particularly nowadays when we have better education and when people study and think.

Every marriage in the country will be at risk if this reform is accepted. Ministers have said that we all have freedom of opinion, and I am expressing mine when I say that all marriages in Ireland will be at risk. All of us are very sorry that 6 per cent of Irish marriages have broken down and that that 6 per cent can affect the position so that every other married couple can have available a divorce system which will wreck families and destroy family life, which is not being helped by the economic circumstances obtaining.

We have here an environment of which none of us wants to boast, we have economic circumstances that are not conducive to happy living conditions; but, if on top of that we are to make divorce available, we are putting all marriages at risk. Let us not say that the form of divorce that would be introduced through the referendum would not be easy to obtain. Either divorce will be available or it will not, and it is only a matter of time, as in the UK, until divorce will be easy to obtain. Once we have divorce we will smash marriage and the family as they are known and create all kinds of [1288] discontent and unhappiness. The seriousness and the dangers inherent in this cannot be estimated and cannot be described in the language we use here. “Disaster” is only a mild word in this connection.

Is it not true that from time to time many of us have been criticised for saying what we believe? Is this not an opportunity for all Deputies to speak out against the real motive behind this, which is to put the cloak of respectability on adultery? That is what we are doing when we ask people to vote “yes”. That is the issue. In Dublin, in the heart of the midlands, in the mountains and valleys of Kerry, among the rocks of Connemara, our people are being asked to give the seal of respectability on adultery.

It is very difficult to see where the urgency arises in this matter particularly when we know from statistics that 94 per cent of all Irish marriages are intact and reasonably happy, despite the serious economic circumstances. What the Government should be engaged in is trying to promote circumstances in which the 6 per cent of marriages which have broken down could be brought together. We should be as enthusiastic about bringing those people together and helping to keep them together, by providing finance to help that process, as about putting forward a proposal to introduce divorce.

In Ireland we have children's allowances which are the worst, the smallest, in Europe. In recent years we have taken from the family as a unit because we have given them nothing. We have thrown the family on the scrap heap. Indeed, It is surprising that only 6 per cent of marriages have broken down because we have not provided anything for them. There are young married couples in my constituency with one or both spouses living with parents. We have children separated from parents because of lack of housing, because they have no room or any accommodation. I see young married women having to climb several flights of stairs carrying cans of water. One can imagine the discontent when the first child arrives and the parents have not a proper home. No one could deny that [1289] such a marriage is not in danger, where a husband and wife cannot live together because of the lack of housing. If that happens in rural Ireland I am convinced it happens also in this and in other cities.

We have 250,000 unemployed and yet no one seems to worry about them. All efforts are directed towards having divorce here but nothing is being done to get work for the unemployed. It is wrong that we have not had a policy based on the family because the family is the fundamental unit in Irish society. It is the natural and fundamental group and is entitled to protection by society. Our Constitution entitles the family to protection, but is the provision of divorce protection for any family? Is putting at risk 94 per cent of Irish marriages simply because 6 per cent have broken down protection for the family? That 94 per cent of the 650,000 marriages will be put at risk because if the referendum is passed Article 41 of the Constitution will mean nothing. The one way to protect a family is to ensure that they are provided for, that the wage earner or wage earners obtain employment to provide for their family.

Another question has not been answered. In the United Kingdom divorce costs the State £1 billion per year and it is estimated that the cost of divorce here would be £50 million per year. I think it would be nearer to £100 million. Will the Minister for Finance, the Minister for Health, who is a wizard at producing figures, or some other Minister please tell us where we will get this £100 million per year to provide for the families of first marriages? In many cases free legal aid will have to be provided if they wish to bring their cases to court.

We are told there is no money for anything in the country today. How will the Irish economy be able to provide this £100 million per year? Will the farmers be asked to pay for it? Will the PAYE workers, who are already keeping the country going, be asked to pay more? The EC will not give us the money. Therefore, there is only one place it can come from, namely, the Irish taxpayers and they should be told that during the [1290] referendum campaign. Taxpayers in the United Kingdom have to foot the bill there.

Another Deputy referred to the fact that we have a great habit of taking our example from British legislation. Often Whitehall sets the line for our laws. If we are to follow the pattern adopted by Whitehall it means the moment the Irish people give the green light for divorce it is only a matter of time until Whitehall laws are adopted here and then it will be a case of free-for-all divorce. It is no use saying that the divorce proposals here are very restrictive and that there will be a period of five years separation. Is it not the position that a case will be decided on the basis of an affidavit from one of the parties? Who will give evidence that a couple have been separated for five years? What is to stop one of the parties saying they have been separated for five years when the reality may be they have been separated for only three years? There is nothing in the Bill to say that cannot be done.

The Irish people are mature and they will not buy a pig in a poke. They will want to know who will pay for all of this. That is the principal point. I raised this matter because so few Deputies mentioned it. We cannot get money for schools, roads or for housing for the elderly. There is no public demand or outcry for this divorce legislation. Not one single person in my constituency ever asked me about it. Now a vast amount of money will be spent but I ask, would it not be better to give that money to Willie Bermingham for the poor and for the aged?

No tribe or society in any part of the world has survived where the family as a unit has deteriorated. If people are sufficiently foolish as to support a plea for divorce it is important that they know the consequences. The law will not affect many of us individually. The real victims will be women and children. The last speaker referred to that and there is no need for any other Deputy to deal with it in great detail.

Divorce law gives to everyone who marries a legal right to remarry in certain circumstances. That is the purpose of the [1291] referendum. People are seeking under a mantle of respectability to cast aside their wives whom they took for better or for worse until death do them part. That is what people who have cherished family life and marriage are being asked to vote for. What a dreadful, awful, disastrous situation we are facing. May we be delivered from such a desperate evil. Taken with the other national evils from which we suffer this will be the last straw for our society. There are many Deputies who know that but they are not availing of the opportunity to stand up and say so. I hope that on polling day they will be there like good citizens and in the secrecy of the ballot box will not allow what their parents, grandparents and greatgrandparents cherished, our traditional Christian values, to be thrown away.

The legal concept of marriage changes completely if divorce is approved of by the people. The law will support temporary relationships because that is all any marriage will be. The Minister for Education explained that in County Westmeath recently. Those promoting this Bill want marriage to be a temporary relationship and a general convenience that could end with serious consequences for the children involved. The State which introduces a divorce law makes marriage as a lifelong relationship legally obsolete.

In the UK the first divorce law was for husbands only and was granted on grounds of adultery. The 1923 law was for wives. The 1937 Act extended the grounds to cover desertion, insanity or cruelty. Under the 1969 Act all that was necessary was to say that the marriage had broken down. As sure as we are assembled in this Chamber the same will happen here within the next 12 years if this law is introduced. We have seen it happen in every European country and in the US. The divorce rate in the US has trebled.

I put it to the House that financially we are not in a position to support temporary relationships. If we were in a position to do that some effort should have been made to assist the 6 per cent of broken [1292] marriages which we have at present. The legal profession tell us that very soon the State will have to withdraw legal, economic and social support as a result of our economic condition.

If a divorce law is introduced we will be back to the position which pertained before the Middle Ages when marriage was a private arrangement. We talk about modern times, being up to date and trying to overtake prosperous countries but in this area it is towards the Middle Ages that we would be headed. The system in the Middle Ages led to a legal and social mess of the highest order.

The consequences of divorce are frightening. I am sure many Deputies have already explained the statistics in relation to both the United Kingdom and the United States. The economic consequences are grave. Married women in Ireland have substantial rights to maintenance from their husbands backed by a variety of enforcement procedures, including attachment of earnings. We are now asking the voter to deprive married couples of the legal facilities that are already there. The effect of divorce will be to minimise or reduce those rights and, in some cases, to abolish them completely. The experience of other countries which have introduced divorce based on the breakdown of marriage is that men are released from their former level of obligation to maintain their wives and children. In those circumstances who maintains the wives and children? The taxpayer does. That is why the taxpayer should be given those facts in relation to this very serious matter.

The provisions included in divorce legislation for providing some protection for the interests of children have proved useless in most countries, particularly the United Kingdom and the United States. In such societies divorce has only made a bad situation worse and that is what it is likely to do here. The situation may be bad for the 6 per cent of marriages that have broken down but it will make it more difficult for the 94 per cent of marriages that are working because they will not have the legal protection of Article 41 of the Constitution. Whether they [1293] have or not, it has not been implemented to date nor has it been effective in helping the family. In some societies the influence of the family on its own members is greatly diminished and the powerful influence of the family in moulding the values of our society is not only diminished but the family is seen as a social liability and this is a very serious situation. With the introduction of divorce the family and marriage become rudderless and drift upon the rocks that wreck all the human values we cherish. That is what this Bill is endeavouring to do, to drive the 94 per cent of good marriages onto the rocks of human tragedy and misery.

It is a fallacy that the conditions for granting divorce can be contained. Once divorce is introduced the process is irreversible. Western society is becoming more like society before the middle ages. It is rudderless as regards values, vision and goals that are truly human. The west, and other countries have lost the will to provide support for families, the Christian heritage and belief in the fundamental unit of society that is the family. The family is at grave risk in this referendum.

Article 41 of the Constitution guards with special care the institution of marriage on which the family is grounded and protects it against attack. Who is being fooled by all this? How can we say on the one hand that we must have divorce laws implemented and, on the other hand, say that we are pledged to guard with special care the institution of marriage? This is no half-hearted statement. We are pledged to protect the institution of marriage and protect it against attack. If this Bill is not an attack on marriage, I am unable to read the Bill.

It was very interesting to hear the Minister make a speech here during the week in which he said everybody was wrong except himself. That is all his speech amounted to. Those who were offering moral advice in relation to this matter were wrong; Deputy Alice Glenn was wrong; Deputy Woods was wrong; anybody else who spoke against divorce was wrong; and he was right. I am a long time in this House but I would not like to have a mentality of that kind. I like to [1294] give a man credit if he is right and to express appreciation of the views he has expressed. But it would be ridiculous to say everybody in the House and outside of it was wrong and one man was right. I will not say anything more about that.

Once the Labour Party in this country were looked upon with great affection and admiration. The Leader of that party was none other than my own good friend and very loyal colleague, former Deputy Brendan Corish. When Mr. Corish was addressing the summer gathering of 1973 — and he was a leader who was held in the greatest affection, esteem and respect — he said that we in Ireland esteem the family as the source of many social and personal values; that we believe the family to be the basic unit of society, that it was not enough merely to state the value we place on the family as an institution but we must go beyond that statement and deliberately create policies and programmes which reflect that value in human terms. It is no wonder Mr. Corish is not a member of the Dáil because I do not think he would fit into the Labour Party of today. I do not think he would fit in with the Labour Party of today. I knew every member of the Labour Party at that time. Many of them are dead now, God rest them. They believed in true Christian values. They believed, honestly and conscientiously, in Christian marriage — not a temporary marriage, not marriage for a year or two, but until death do them part. Mr. Corish was quite right in 1973 when he appealed for policies and programmes to reflect the values of the family in human terms. What a lovely and memorable statement by a man who was held in great esteem and affection by all Members of this House.

There are reasons why 6 per cent of marriages do not work. Marriage is a vocation and we must all try to make it work. This may be difficult to do at times, but we have to do our part. No marriage can be successful without a certain amount of give and take and a big effort being made by both parties, remembering the vow they made to each other — for better or for worse — realising that [1295] marriage is for life and that only death can dissolve it.

Parents and others bring great pressure to bear on young people to get married because of pregnancies. The age of marriage needs to be looked at. People contemplating marriage must know what they are doing; they must realise that they are taking a partner for life. Many young people get married to escape their parents and their environment. Our young people are not educated to realise what is involved in marriage. Would it not be better if we as legislators dealt with problems of this kind rather than putting 94 per cent of good marriages at risk?

I want to pay tribute to the Church's pre-marriage courses, but more needs to be done with financial backing by the State. There is also the problem of in-laws interfering and the provision of proper accommodation. Many young people get married without any experience of economics, of housekeeping and the use and control of money. This is very necessary when one is taking on a partner for life. Many young people who marry have no intention of changing their single habits for their new vocation of married life. They should be told about these matters. In many marriages that break down there is an absence of a spiritual dimension, which is very important and which is essential for the success of any marriage. Selfishness can come to the fore because of immaturity and greed can creep in. Above all there should be give and take in the areas of trust and confidence. This, too, is absolutely essential.

I have already referred to high mortgage rates, small flats and housing estates, but another problem is that these young people are not spending enough time together. There are TV silences where they are only watching and there is no conversation. Another problem is a lack of outside activities. Many marriages have gone on the rocks because of an over-emphasis on alcohol and the nightly visits to the singing pubs. Many marriages might not have broken down if such places had been avoided.

[1296] Some of the problems are a lack of ideals, a lack of goals and ambitions, no time for reflection, no time for thoughts of marriage or a frequent renewal of the marriage vows. In many cases there has been an over-emphasis on status, social climbing, anxiety to be better than everybody else, and tension arises from delays in achieving success in life. Problems also arise in the case of the “workaholic”, the man who is under pressure from his firm but puts his career before his wife and children. No mother, no housewife, will be able to tolerate a man who works at his career 12 hours a day and who concentrates on his ambitions and success for the future. Every man must have time for the family.

Financial necessity often requires two incomes when one income is not sufficient for essentials. Many are living beyond their means and with living costs as they are that is almost unavoidable. All these problems should be examined. When the referendum is over and calmness returns to public life after the amendment has been rejected, as I prophesy it will be, the State will pledge itself to work for the family, to build it up, reinforce and reconstruct it, not to dismantle it and blow it out of existence. We have to consider housing, home-making, youth clubs, youth activities. We have no press council to modify anti-family programmes on television, radio and in the newspapers. No other country in the world needs a press council as urgently as we do. With all due respect to our high standard of journalism, a press council would be an asset to radio, television and the press, particularly in modifying the apparent inclination to deal unfavourably with family programmes. About a fortnight ago I watched an RTE programme dealing with this divorce question. It was so biased in favour of divorce that I do not know where they picked the people who took part in it, but they got them. I wrote a letter to the Director General about it. He may be a very busy man and I am still awaiting a reply to that letter. [1297] I think other Deputies wrote to him likewise. It was wrong, when we were debating this matter in this House and the people were preparing for a referendum, that RTE should televise a one-sided programme on the matter. I hope that RTE will be able to produce a more balanced television programme on this, in view of the programme I have just referred to which was in favour of divorce and the break-up of marriages.

In regard to outside influence on families, community radio could do a great deal to sponsor support for and strengthen the activities of families. After the referendum when we all get down to doing something for the family, I hope we can provide marriage renewal courses. So far no financial help has been forthcoming for this. We should deal with such matters in addition to the bread and butter issues. Some of the poorer families are those whose breadwinner has a job. Our children's allowances are the lowest in Europe and have fallen steadily in value since 1973. What are we doing about children's allowances if we claim to be protecting the family in accordance with the Constitution? I am sorry to learn that maternity grants and wife's and husband's insurance were abolished in 1983. That was a terrible mistake in regard to the family.

What will divorce do for the many deserted wives and families who receive no financial help from the absent partners? It will do nothing except perhaps deepen their despair and misery. Those husbands can gain respectability and a constitutional guarantee of protection in a second marriage whilst the stranded first wife and the children will be devalued in the eyes of the Constitution and the law, a most serious matter for these people. Why? Because the partner who opted out will be able to get a divorce, remarry and establish a second family and will then be regarded as a pillar of the community. It may be noted that the second family will be, in the words of the Constitution, “a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. The first family will be [1298] thrown at this stage on to the rocks, to the mercy of the Irish taxpayer who will be unable to meet the bill. I have quoted what the Constitution provides in regard to the family and it must apply to a second, third or fourth family after divorce. The rights of the original family will disappear. For example, the wife and children of the first marriage will have no succession rights once the marriage is broken up. There is no answer to that.

I have heard Deputies saying that they are dealing with this simply because marriages break down. Divorce will not improve matters in regard to marriage breakdown. On the contrary, the availability of divorce will inevitably discourage a couple from making constant efforts to ensure that their marriage will work. Thousands of people are struggling to make their marriages work. If the amendment is passed they will not struggle very much to that end. They will take the easy way out and avail of divorce.

The proposed amendment will make a mockery of the Constitution as it stands. The second family will automatically inherit the benefits of Article 41.1.2º, that is to say, the State will guarantee to protect the second family under the Constitution as the necessary basis of social order and as indispensable to the welfare of the nation and the State. The first family, who were indispensable to the welfare of the State and the nation, will be dissolved and replaced by another moral institution which will then become indispensable to the welfare of the nation and the State. This makes a complete farce of the Constitution. I hope and trust that the commonsense and intelligence of the voters in relation to this matter will save our nation from the disastrous consequences of the amendment being passed. People have said that it would be difficult to obtain a divorce; on the contrary, it will be the most liberal form of divorce in the world——

Mrs. Barnes: Nonsense.

Mr. O.J. Flanagan: On reflection, I hope that the voters will see that this is not for the common good of the majority. [1299] We can help the minority in the many ways to which I referred earlier and save ourselves from the disastrous effects of divorce, as has happened in every other country where it has been introduced. I hope that the voters will consider every aspect of the matter, that their judgment will be calm, reasoned and proper and that they will listen carefully to the sound advice which they will receive politically, economically and morally in relation to this grave decision which will affect generations to come. This could change the whole face of society as we know it. I support traditional, Christian values and I will help to save the country from the serious consequences of legislation which will enable divorce to smash family life and which will put many marriages on the rocks.

Mr. D. Andrews: I wish the last speaker will. It is evident that he is back to his full health, which is as it should be.

With the greatest respect, Deputy Flanagan's point that we will have the most liberal form of divorce in the world is contrary to the facts. It is one of the least liberal constitutional proposals compared to Catholic Spain or Italy where the proposals regarding divorce were far less restrictive and restricting. However, I do not intend to engage in badinage or argy-bargy with any individual, group of individuals or institutions on this issue. I intend to follow a consistent personal line in the matter. I am for the proposal and I made a speech on this matter last November during the debate of the report of the Joint Committee on Marriage Breakdown. I said then that, having said my piece in this regard, I would, for the benefit of the people, remain silent, and I am sure there will be loud rounds of applause on that account. I do not intend to get involved in the subsequent arguments for or against the measure. I will make my speech here this evening and contribute as best I can on Committee Stage in regard to improving, where possible, the wording of the proposed constitutional amendment. I want my constituents and others who may be [1300] concerned to know where I stand on this issue and, having done so, I will leave the matter to the people to decide. In 1986 the population are well able to make up their own minds without intrusion of political advice from any party. I do not intend this to be a carping point, but the less said by politicians after the conclusion of the passage of this proposal the better.

The confusion which I noticed in The Irish Times, Irish Independent and The Irish Press this morning in relation to Fianna Fáil's position on this matter is very understandable. For example, The Irish Times had a headline — “FF joins Church in opposition to divorce.” I understand how that arose and I am in no way critical of the headline, but it does not face up to the facts or to the historical position taken by Fianna Fáil on this issue. I heard my colleagues, in particular Deputy O'Hanlon, and my friend, Deputy Brian Lenihan, read into the record of the House the statement issued from the Fianna Fáil Parliamentary Party on 25 April 1986. Deputy Lenihan was paraphrasing the statement and Deputy O'Hanlon was reading an excerpt from, the statement. However, the statement should be recorded in full and I intend to quote it:

At a specially convened meeting today, the Fianna Fáil Parliamentary Party considered the proposal of the Coalition Government to seek the approval of the people for the alteration of Article 41 of the Constitution in order to allow for the dissolution of marriages in certain circumstances.

The party carefully considered all the many aspects and implications of this proposal and in particular its profound effect on the position of families and the nature and quality of our society. They also had regard to the many different but sincerely held views in the community on this issue and decided that the question should be left to the people as a whole to decide. Accordingly, the party will not oppose, in the Dáil or Seanad, the proposal to hold a referendum.

[1301] Fianna Fáil hope that this important issue will be fully and responsibly assessed by the people and a wise decision arrived at after an informed and balanced debate, free of rancour or prejudice. To ensure that the debate does not take place along party political lines, Fianna Fáil have decided that the party will not campaign politically in the referendum. Because, however, many members of the party feel deeply about the issue, individual Deputies and Senators will be free to participate personally in whatever way they wish in their individual capacities.

The family, under the Constitution, is the natural primary and fundamental unit of society, which the State guarantees to protect. The State is also pledged to guard with special care the institution of marriage, on which the family is founded. Fianna Fáil are convinced that the stability of our society and the welfare of the individual can best be protected by adhering to these principles in the Constitution and will press the Government to implement, as a matter of urgency, a comprehensive programme of measures to support and sustain marriage and the family as outlined in the report of the Joint Committee on Marital Breakdown.

In the circumstances, having regard to one statement made by a prominent member of the Fianna Fáil Party yesterday, it is understandable that the headlines in the newspaper suggests that Fianna Fáil join the Church in opposition to divorce. I assume the Church meant in the headline was the Catholic Church. However, that is not the position. The statement from the parliamentary party speaks for itself and I stand by that statement. I am not speaking on behalf of the Fianna Fáil Parliamentary Party. I am speaking on my own behalf and members of the Fianna Fáil Parliamentary Party who have spoken or will speak in this debate will not represent the Fianna Fáil Parliamentary Party. They will represent their own positions. As I understand the English language, and the interpretation [1302] of that statement issued by the parliamentary party, that is what that means and no individual, or individuals, will bind the party. I hope I have made my position and that of the party clear. I, and all other members who contribute on this matter, speak as individuals. The formula, “we in Fianna Fáil” does not apply. Individuals in Fianna Fáil who wish to contribute, speak for themselves but not for the party. I hope that point has been taken.

I welcome the sensitive approach which has been a feature of the discussion in recent weeks since the introduction of the Government's proposed legislation. I do not have any objection to the Church issuing pastorals or messages from the pulpit on the matter. The Bishops are entitled to do that. In fact, they may have been in dereliction of their spiritual duty if they did not do that. Let them issue their message. Let us hear from the Catholic Church on the one hand, the Protestant Churches on the other and from our Jewish citizens. I do not think there is any great objection to having the various Churches indicate their positions in relation to this divorce legislation. They have an obligation to guide their people but they must distinguish, as Bishop Cassidy did, between abuse and use of the pulpit. They must distinguish between guidance and intimidation. They must draw that important distinction.

The Catholic Church have issued pastorals in the past, will issue a pastoral on Sunday and will issue pastorals in the future. We look forward to the pastoral on Sunday and the pastorals the Bishops may have in mind for the future. The Bishops are entitled to issue pastorals and I do not think we should be critical of the Church on that account.

With regard to the anti-divorce lobby I should like to pay tribute to the sane and sound leadership of my friend and colleague, Senator Desmond Hanafin. I know he takes an opposite view to mine but I respect his views. I re-echo Senator Hanafin's hope that the debate will be conducted in a calm and dignified manner. I do not want to see this debate break down like the pro-life amendment [1303] debate. I do not want that to happen to the country any more and I hope that, arising out of the divisions and horror stories of how both sides acted during that campaign, we have matured enough since then to offer balanced arguments one way or the other.

On another occasion I said that as a Catholic legislator I would much prefer that the legislation enacted by the Dáil reflected in essence Catholic morality as I understand it. However, as I stated on that occasion, I was not elected to represent one religion but rather to represent all those of whatever different views, backgrounds or religions in this society who vote in Dáil elections. That is reasonable. I am not apologising for being a Roman Catholic. I am not pretending other than that I am a Catholic, but is anybody seriously suggesting to me, in particular, the Catholic Church, that this is a Catholic Parliament for a Catholic people? I do not think anybody can propose that or sustain the argument. I am not denying my Catholicity but I am rejecting the notion that I as a Catholic in this Legislature should be required to legislate for Catholics only. For that reason I endeavour to reflect in my approach to legislation the changing attitudes and beliefs amongst Irish people to moral and social issues.

While politicians may cast a jaundiced eye on opinion polls, nevertheless, I must not ignore the significant change to divorce reflected in those polls, particularly in the last 18 months. May I hurriedly say that my views on this, or on any other matter, are not swayed one way or another by opinion polls. When I reach a decision about an issue I generally stick to it unless I can be dissuaded otherwise. Opinion polls in recent months have been significantly in favour of the proposal before us. According to the latest opinion poll, published in The Sunday Press, a majority of 58 per cent of the people are in favour of the Government's referendum. According to that poll 60 per cent of voters would like the Catholic Church to play what could be described as a passive role in the divorce debate.

[1304] Politicians ought to adopt a similar approach. If ever there was a debate which should separate Church and State, politicians and individuals, this is such a debate. The issues that arise in this debate are intensely personal and in many cases heartbreaking for the individuals concerned. The last thing that should happen is that politicians should attempt to lay down general moral guidelines for the electorate at large. At the end of the day it will be the individual moral conscience of the voter which will decide his or her approach to the referendum. For Catholics that approach may well be guided by the theology of their own Church but would also take into account the reality of broken marriages in Ireland today. In not opposing the holding of the referendum Fianna Fáil are reflecting their sensitivity to the intensely personal nature of the issues which have to be debated in this House. I said, in the course of my contribution in the House in November last, that if all political parties in this House were to refrain from making this a political matter, allowing the debate to develop from outside the Dáil rather than from within, there would be a realistic chance of the referendum being passed. In that contribution I went on to appeal to the leaders of all political parties, including the Fianna Fáil Party, to encourage open and rational discussion of the matter rather than taking hard and fast positions for or against. In some small way I believe I had an influence on the attitude adopted by the Fianna Fáil Party in their approach to this proposal. I am glad that during the course of a lengthy parliamentary party meeting the party arrived at this consensus — each individual to speak on his or her own account and, having done that, to stand back and let the people decide. That is an utterly reasonable and principled position to take.

I would make the same plea to all the different pressure groups involved in the debate outside this House, to refrain from making this a major Church/State conflict or an issue which would divide sections of the population for many years to come. That is not to say that we should [1305] sit on the fence and say nothing. As a politician I would be abrogating my responsibility, as one who has taken a stance on this issue, were I not to continue my support for a change. I know there will be statistics bandied about, some seeking to show that the new family will have a stronger constitutional position than the old, as witnessed by the number of speakers who were against the provision. Others will seek to establish that the children of a marriage where the parents have been divorced can never be properly provided for, as has already been contended by the anti-divorce lobby in the House. Statistical arguments can be very convincing. My good friend and colleague, Deputy Faulkner, a committed anti-divorce Member of the House, gave a fulsome statistical outline of what he considered to be the facts and statistics against divorce.

The thrust of the argument against divorce is that it represents a threat to the stability of family life and, thereby, to the social fabric of the nation generally. The anti-divorce groups point to the rising incidence of divorce in other countries, tending to show that the institution of marriage is under greater threat than ever before. Our Constitution is committed to the institution of marriage, more so than constitutions, written or unwritten, in other jurisdictions. Article 41 of our Constitution pledges to guard with special care the institution of marriage. The rights of the family, recognised by the Constitution, are antecedent and superior to all positive law. In my view the introduction of divorce need not be inconsistent with that pledge. What will be necessary is that the extended or new family does not receive any greater protection or legal authority than the marriage or the children of the marriage which has been dissolved. To achieve that the courts will have to be vigilant and vigorous in ensuring that proper provision is made for the dependent spouse and any child who is dependent on either spouse. We could not allow a situation to arise in which any concept of illegitimacy by stealth or accident come to be attached to the first family of a divorced person by [1306] reason only of the fact that they are the first rather than the new family of such a person. It will be necessary for the Government to go ahead with the proposed legislation to abolish the distinction between legitimacy and illegitimacy so that the concept of legitimate or illegitimate has no validity or meaning within Irish law or family life. We will have to come to terms with the concept of an extended family in which the spouses of the new family have to accept a moral, social and financial relationship and commitment to the spouses and members of the first family. This may seem to be a novel concept but, if proper provision is to be made for dependent spouses and children, as is provided for in the proposed amendment, then the concept of the extended family may well be the most compassionate and psychologically sensible way of approaching the problem.

Many different propositions will be put in the course of this debate — that divorce casuses marital breakdown; divorce is merely a symptom of breakdown; divorce leads to a general lowering of moral standards and principles. All of these issues have been the subject of debate for many years in other countries where divorce is commonplace. From my reading of those debates there are no simple solutions or hard and fast answers. William Duncan in his recent publication The Case for Divorce in the Irish Republic states that the weight of international evidence favours the view that divorce is merely a symptom of marriage breakdown. He goes on to say that divorce bears the same relationship to marital breakdown as does a funeral to the fact of death, that divorce is the burial ceremony for a marriage which is dead, not the cause of its death. He says that to deny divorce in an attempt to prevent marriages breaking down, is like forbidding funerals in the hope of eradicating the problem of death.

We have already provided in our laws for decrees of separation, nullity, barring orders, maintenance orders, almost every other order which can be made in relation to a marriage, except divorce. In other words, whether we like it or not, [1307] we already accept the concept of irretrievable breakdown of marriage in Ireland and, to the extent to which it is possible, we should therefore provide in our laws. Why then should we not take the last step and accept that, where there is such an irretrievable breakdown of marriage, there should be divorce and the right to remarry for the spouses of broken marriages?

It is a cruel concept to consign a young couple, or not so young couple, whose marriage has broken down to a single state for the rest of their lives where such a single state is not desired. It is cruel, uncharitable and unfair to suggest that people cannot enter into a new relationship, the original one having broken down. The God to whom we all pray, whether we be Catholic, Protestant, Ba-hai, Seventh-Day Adventist, Jew, whatever, is a compassionate, forgiving, concerned God. He is a God whom I believe, in the final analysis, would forgive people whose first marriage has broken down for entering into a second one. That is the sort of God I believe in, a God of love, of compassion. I cannot envisage eternal damnation as the punishment for a second marriage, far from it, not from the God I believe in, the God I believe my Church asks me to believe in.

It is easy to contend that lives or homes are destroyed by marriage, just as it is easy to say that the breakdown of a marriage causes the disruption of the life of a spouse or child and of the home. We cannot avoid noticing that people form new relationships after broken marriages and have children by their new partners. Are we to condemn those people to a lifetime of illegal cohabitation and illegitimacy notwithstanding that, under our existing laws, we have fully accepted the fact that their previous marriage has irretrievably broken down? The estimated figure of broken marriages in Ireland at present is 35,000. That is not an insignificant number; it is a sufficiently large number to warrant attention. Taking that figure as being correct and assuming that there are at least two children to each [1308] such marriage, we arrive at a figure of 140,000 persons affected by the consequences of marriage breakdown. That is more than the population of Cork city or the combined population of, say, Galway, Waterford, Wexford and Dundalk. Therefore, it is manifestly absurd to suggest that a problem of national significance does not exist in the context of marital breakdown in Ireland today.

I have seen the weekly lists in the courts dealing with maintenance, barring orders, separation and all other facets which make up the marriage jurisdiction of the Irish courts. It would be a salutary lesson if politicians and members of the anti-divorce campaign were to take a look at what is happening in the area of marriage law here at the moment. They would only have to question the beleagured practitioners about their experiences with broken marriages to discover very quickly the extent of the demand for the right to remarry amongst very many members of these broken marriages.

There has been divorce in Northern Ireland for some years now, which has not led to a rampant abandonment of moral principles, or to a corruption of standards within the family. Traditional family life and family unity are strong in Ireland and will not be any less so in the years ahead because the inevitable victims of broken marriages have the right to form new and trusting relationships. To make comparisons between Ireland and California is absurd. The social and historical characteristics of our people are so different from those of the New World, the Western States of America that they will have little or no bearing on the way in which our moral standards will change or develop over the next generation.

During the course of the debate on contraception, we were told there would be large queues of young people outside every chemist shop where contraceptives were available. Here again that did not happen. The confusion which was predicted did not arise. The young people at that time were not given credit for their intelligence, their decency, their upbringing. In the circumstances of this proposal, [1309] those who are suggesting that young people will avail of divorce who are in strong and stable marriages at present are doing an injustice to that generation. They are being unfair.

In 1966 the Law Commission in England commenting on rising divorce figures stated:

These figures can reflect the fact that a growing segment of society is coming to regard divorce as more respectable than other outcomes of a broken marriage. They are therefore important figures for sociologists and people responsible for social policy, but they do not give cause for believing that morality is being corrupted in England, still less that it is the divorce law that is the corrupting agent.

By and large, there is a high moral climate for religious belief and observance in Ireland. To argue that in the final run, in an already extensive jurisdiction for the victims of broken marriage, divorce will lead to unlimate decay and disaster is unsustainable. We should support this proposed referendum and ensure by our actions and our laws, our examples and our history, that the strength rather that the weaknesses of human individuals in marriage are encouraged and maintained.

I am a practising Catholic and have been married for over 22 years. I believe very strongly in the strength of the family unit in society and my hope is that my marriage will continue until death do us part and that my children will themselves marry and have stable relationships with their partners in their turn, for life. Whilst a Catholic, nevertheless my role is as a legislator for the whole community, irrespective of the various religions. In my constituency of Dún Laoghaire, I have come into contact mainly with my co-religionists, having regard to their majority situation, but also with the various Protestant Churches and with my Jewish constituents. The Ba-hai religion adherents no later than two weeks ago made me a presentation of a tract. These are a group of people very severely and [1310] seriously persecuted by the Ayatollah in Iran. They are members of the community which I represent. I have met with the Seventh Day Adventists and with people of no religion or no religious beliefs. That is the type of Legislature which we should be seen to be.

My attitude to republicanism is that, whilst we in this political party, Fianna Fáil, bow to the shrine of a Protestant republican on the one hand, we should be seen to be representative of all classes and creeds. That is fundamental to my republicanism. I believe it is fundamental to the republicanism which was given to us by the founder of the Fianna Fáil Party, Mr. de Valera, by men like Mr. MacEntee, Mr. Lemass, Mr. Frank Aiken and so many others — great men all. That sort of republic is the type of Ireland that they would like to see.

My mother was a practising republican and so was my father, in the best sense. They brought us up in a tradition of possibly old fashioned liberalism. That old fashioned liberalism continues to be my consistent and sustained philosophy, based on the equality of man and woman, on the concept of equal opportunity and on the ideal of merit winning out, that people should be rewarded for their endeavours rather than penalised for doing well for themselves. In other words, the philosophy of the begrudger was never part of my upbringing or my philosophy. Envy did not enter into it but rather in our circumstances we were proud if any of our family succeeded, or our cousins, and where our friends and neighbours were successful, whatever their calling, we were proud of and glad for them. That is the sort of Ireland that I would like to leave for my children and grandchildren.

I have a very strong belief in the marriage bond. We are not talking about a proposal which is compelling people to divorce. As Deputy Flanagan has said, if his figure is correct, 94 per cent of marriages in this country are successful and I have no doubt that 94 per cent will continue to be successful, with or without divorce, with or without this proposal. Fundamentally, I believe in the family [1311] unit. It is “the family” against the rest. We all love our own children but we are not obliged to love other children. The family is the fundamental unit in our society. It is a tremendously important sustaining factor in any society, strong family unit.

Having been in Mainland China, I suggest that a people who believe very deeply in this concept are the Chinese, not only in the immediate family but the extended family. They have a wonderful concept of family life, despite the fact that they are Communists, have Communist beliefs and do not believe in any religion. They have this wonderful feeling for the family. Mao has done a lot for China since the warlords were driven out ahead of his marching armies in 1949.

Divorce is not compulsory. It is like censorship, which happily is not that great a burden on the Irish people anymore, but we can engage in self-censorship. If I do not want to listen to Mr. Gay Byrne in the morning, I can turn off the radio and if I do not want to look at the “Late Late Show” on a Friday night, I can turn it off. Equally I can leave them on. These are all decisions to be made by the individual concerned. We are all adults. There are those who say that marriage is not dissoluble. If that is so, can they tell me why it is annullable? On one hand, the Church can annul marriages and on the other hand the civil law of the State does not allow divorce. These are questions that must be answered. I believe that in a democracy divorce is a civil right, quite simply. You can accept it or you can reject it.

It is underestimating the intelligence of the people not to have the proposed amendment of the Constitution. If I were to be absolutely honest about it, it is a provision I would not have put into the Constitution in 1937, in which case, we would not be discussing this proposal now. I am certain that the Constitution of 1937 strengthened the fabric of our society and set standards for the society in which we are living today. Its advantages continue to be apparent. It would have made no difference whatever to the strong fabric of the society in which we [1312] are living today had the 1937 Constitution not have contained the divorce provision.

I happened to have been a member of the New Ireland Forum and a signatory to its report as were the following: Charles J. Haughey TD; Brian Lenihan TD; Gerry Collins TD; Eileen Lemass TD; Ray MacSharry TD; Rory O'Hanlon TD; Jim Tunney TD; John Wilson TD; Garret FitzGerald TD, Taoiseach; Peter Barry TD, Minister for Foreign Affairs; Myra Barry TD; Senator James Dooge; Paddy Harte TD; John Kelly TD; Enda Kenny TD; Maurice Manning TD; Dick Spring TD, Tánaiste and Minister for Energy; Frank Cluskey TD; Senator Stephen McGonagle; Frank Prendergast TD; Mervyn Taylor TD; John Hume MP, MEP; Séamus Mallon — now thankfully an MP; Austin Currie; Joe Hendron; E. K. McGrady with the various substitutes. All of these individuals of all different political persuasions put their names to this report. The report at page 27, paragraph 5.2 (6) states:

Civil and religious liberties and rights must be guaranteed and there can be no discrimination or preference in laws or administrative practices, on grounds of religious belief or affiliation; government and administration must be sensitive to minority beliefs and attitudes and seek consensus.

Surely, that is what we are about here today: we are seeking a consensus. That is what the New Ireland Forum calls for. That is what I along with these individuals who signed the report believe it means.

Chapter X of the Report of the Joint Committee on Marriage Breakdown in connection with divorce states:

The Committee is of the opinion that:

The referendum should be held in relation to the question whether the Oireachtas should be empowered to introduce divorce legislation.

Any such referendum should be in a positive format, replacing the present Article 41.3.2º of the Constitution with a provision, specifically authorising the [1313] Oireachtas to legislate for the dissolution of marriage.

Any such amendment should be drafted in such a way as to ensure that the basic emphasis of Article 41 is not altered, in that the Article should continue to place a duty on the State to protect the family and the institution of marriage and to recognise the family as the natural, primary and fundamental unit group of society.

If any such referendum should be held and should be passed:

—the referendum is going to be held and hopefully it will be passed——

(a) A situation of divorce on demand would not be appropriate in this country and would not be acceptable to the people.

(b) It is essential that adequate safeguards must be built into any divorce legislation to take account of the State interest in fostering and protecting marriage and the family.

(c) It is essential that any divorce legislation should make proper provision for the protection of the dependent spouses and the welfare of dependent children who might be affected by the grant of a decree of divorce.

(d) Any such divorce legislation should be based on the concept of marital breakdown.

(e) A decree of judicial separation should be a first step whereby a person could apply after a fixed period of time, from the granting of a Judicial Separation, for a decree of divorce.

We run straight across to the proposal before the Dáil. That reflects exactly the proposal under the heading of divorce in the Report of the Joint Committee on Marriage Breakdown. Who are the signatories to that report: Dáil Members: Myra Barry, Eileen Desmond, Dick Dowling, Pádraig Flynn, Máire Geoghegan-Quinn, Mary Harney, Willie O'Brien, Rory O'Hanlon, Alan Shatter, Madeline Taylor-Quinn, Michael Woods; Seanad [1314] Members: Katharine Bulbulia, Tras Honan, Thomas Hussey, Catherine I B McGuinness and Mary T W Robinson.

The constitutional proposal, therefore arises almost directly fully clothed from the proposal of the Joint Committee on Marriage Breakdown. I find very little wrong with the verbiage of the proposal, very little. I do not know whether we as a party can genuinely offer amendments when the Bill comes to be discussed in committee. If one examines the proposal — I shall not quote it as that would be wasting parliamentary time — there is only one area where I would imagine difficulty may arise. I have no doubt that that difficulty will be dealt with by the Minister concerned on Committee Stage. It is the question, what is the meaning of the word “failed”? How does the word “failure” present itself in this proposal? Apart from that the proposal as a whole could be submitted to the people and, in those circumstances, we as politicians should stand back from the debate. Obviously, the Government have taken the decision that they will involve themselves in the debate. Personally, I think it is the wrong decision. It is a decision that will raise more problems than it will solve. The Government are entering into a divisive situation, which is unfortunate. Fianna Fáil have taken the right decision in their attitude to this debate. It is a principle decision and the proper one.

Let me conclude by quoting from the 1967 Report of the Committee on the Constitution where the question of divorce was raised. I happened to be a member of that committee. I had the honour and the privilege of sitting with some great persons in the history of this House. Even at that time these individuals were discussing a proposal to do away with the religious bias against divorce and to allow the minority religions to practise in accordance with their religious views in the context of divorce. I quote from page 46, paragraph 129:

The opinion has been expressed that these provisions constitute discrimination on the grounds of religious profession or belief within the meaning of [1315] Article 44.2.3º and that at least the penal provisions of the existing code will be declared not to have been carried over under the Constitution. We recommend that this difficulty be removed by adding a suitable provision to this part of the Constitution to the effect that the prohibition on religious discrimination shall not prevent the enactment of different procedural rules relating to different kinds of marriage ceremonies with a view to ensuring that all legal rules are complied with by the parties concerned.

With respect to all of us at that time, the solution was, to say the least of it, impractical but it was a genuine effort on a very seriously considered topic and subject and a very seriously offered solution to a very serious problem.

It is interesting to note that, like the committee of the New Ireland Forum, the Committee on the Constitution sat for over a year. It was constituted in August 1966 when Mr. Lemass was Taoiseach. It reported on 14 December 1967. It is also interesting to look at the names on that committee. They included the late Don Davern, my friend and colleague, who served initially but who was happily promoted to Parliamentary Secretary to the Minister for Agriculture. He made way for Mr. Lemass, who ceased to be Taoiseach in September 1966. I attended the parliamentary party meeting which elected Mr. Jack Lynch as Taoiseach. The names on the constitutional review committee were: George Colley, Chairman, David Andrews, James Dooge, Seán Dunne, Denis F. Jones, Seán F. Lemass, Robert M. Molloy, Michael O'Kennedy, Thomas F. O'Higgins, Eoin Ryan, Gerard Sweetman and James Tully. It cannot be gainsaid that these people who were in some instances the founders of our nation, seriously considered and tackled the problem which is now confronting us. I commend to anybody the chapter in their report dealing with marriage. It is worth reading, evaluating and translating from that period, [1316] 1967 to 1986. It would be a valuable piece of research.

I will conclude by repeating that I will give the benefit of my silence to the Irish people. When the debate is concluded in this House and in the Seanad I will wait for referendum day, go to my local polling booth in Blackrock and vote for the constitutional amendment.

Minister for Health (Mr. B. Desmond): It is a source of particular satisfaction to me, and I am sure to many Members of the House, that this debate is taking place. After a great deal of debate and soul-searching the Government have published their Bill to amend the Constitution and to remove the prohibition on divorce. They have simultaneously announced our proposals for dealing with the dissolution of marriage. Though I welcome the contribution of my colleague, Deputy David Andrews, and though I was very pleased with his support for the measure, I would not necessarily go the whole road with him in his suggestion that we should depoliticise this whole debate, that we should pacify it, simply state our views and then go to our beds and await the result. It was a deliberate political decision of this House in 1937 that enshrined in the Constitution a particular aspect of Catholic social policy what was then perceived to be Irish national aspirations. Those who voted for the 1937 Constitution in this House were expressing a view of Irish life and the way they wanted Irish life to be at the time. It meant to Deputies something extraordinarily deep and personal. It was that political dedication which gave us divorce prohibition in our Constitution.

I am 51 years of age today. When my parents got married in 1932 they came to Dublin to the Eucharistic Congress. My father was a founder member of Fianna Fáil. As a Cork man he had a particular affection for Michael Collins but he was still opposed to the Treaty generally. He always had a great respect for the 1922 Constitution. Being a member of the Republican Movement at the time he had been banned from the sacraments. He went to the sacraments in 1932 when [1317] he attended the Eucharistic Congress. There was no divorce at that time. He often said to me, and he was very adamant about it, that Michael Collins had a much more liberal view of Irish society and that Michael Collins did not claim to enshrine in the Constitution a positive lordship over Northern Ireland which was enshrined in the 1937 Constitution. Therefore, I come to the conclusion that we, the politicians, enshrined the divorce prohibition in the Constitution. We cannot now say that we want to change it and leave it to the people and walk away saying that is our day's work done. We have to explain to the Irish people why we want that change. To that extent we have to campaign in a rational and a reasonable way and give our views in that regard. I have no desire overly to politicise the issue. If we truly believe that there is a real need for change we must go to the people in the next five or six weeks and explain the depth of our approach for change.

Equally it is very wrong to say that it is not a Church versus State versus Oireachtas versus political conflict. Unfortunately it is. There is a serious clash of views. Just as the Irish Constitution in 1937 reflected the finite ultimate viewpoint of Irish Catholic sociology, today we are trying to draw back from that global enshrinement. The proposal is being vigorously and trenchantly opposed in a very definite way by the Catholic Church. To that extent there is a conflict as to what kind of society we want to shape in Ireland for the year 2000 and for decades thereafter.

I do not think there is anything wrong with a conflict of that kind, but to shy away from such a conflict is the age old Irish capacity to look at things and all problems from 55 different directions and in the end become so bemused that we do not know where we are. To some degree, that is endemic in this House. Last evening I met a fellow Deputy, an esteemed colleague, and I said to him: “What way do you think it is going?” He said to me: “It will be very tight, very narrow. I do not believe in those opinion polls at all.” I said: “What way do you [1318] feel about it yourself?” He said: “I am supporting it. I am definitely in favour of the change.” I said: “What do you think the result will be in your own constituency?” He said: “I think it will work out two to one against.” He said: “I am sorry to say that, but I think that is the way it will work out.” I said: “Are you going to send out an old circular or a letter to the members of your own organisation?” “No,” he said, “I do not think so.” I asked him why and he replied: “It would be as good as my seat might be worth in the next election, but I want to tell you I am in favour of the change.” I said: “Are you going to campaign?” He said he would not.

If that is the measure of commitment to change given by those who have a commitment to change I am afraid it is not a commitment that will bring acceptance in the referendum. I am in favour of it and I suggest to colleagues in the House who are in favour of the change that they have a democratic parliamentary responsibility, by virtue of their election to the House, to go out, to meet their constituents and explain to them why they have this personal viewpoint. Therefore, I find it extraordinary that on the Second Stage of the Bill when general principles are being debated the Leader of the Opposition should give himself a Strasbourgian and a Parisian silence, an exemption from stating his views.

Mr. Kelly: Think what would be said about it if it were the Taoiseach who had gone to America during this debate.

Mr. B. Desmond: I share the Deputy's views. I find it extraordinary and unique in the history of Dáil Éireann that the Leader of Fianna Fáil has refused to state his position on the general principle of this historic Bill.

Mr. Kelly: Perhaps he has a touch of the modesty epidemic that is sweeping the Continent.

Mr. B. Desmond: This self-imposed silence speaks volumes. It is all the more extraordinary considering the propensity [1319] of Deputy Haughey to pronounce on almost all national and international issues of the day in this House, but when it comes to the fundamental issue of divorce we have this ignorance.

Mr. Kelly: There is a very sacred precedent for that in his party.

Mr. B. Desmond: I do not profess to be a constitutional lawyer or historian.

Mr. Kelly: Certain persons lay low when certain decisions were being made at a certain time.

Mr. B. Desmond: The Deputy's words are impinging on the back of my neck, but I am grateful for them. Here we see a political hand washing which I find disturbing and which does not show much regard for this House. It is incumbent on the leaders of the main parties to state their views. In any other Parliament, on issues of capital punishment or major questions of the day, the leaders would state their personal views without hesitation. By doing so they would not impose their views on their party membership.

Mrs. Barnes: Deputy Haughey believes this is not relevant.

Mr. B. Desmond: Political power and electoral popularity in Ireland become an all consuming objective in Dáil Éireann. I will leave it at that.

The Government have decided to give the people an opportunity to vote on whether or not to remove the constitutional prohibition on divorce. The people will decide whether or not they want divorce as a final resort for spouses in broken marriages. They will also be voting on the wider issue of what kind of society they wish to see develop on this island. The Irish people will have an historic opportunity to shape the social and political development of this country for perhaps a generation. The manner in which we as a people respond to this opportunity will say a great deal about [1320] our ability to face reality, our true concern about the rights of people in both parts of this island and our maturity as a political democracy.

Building a consensus that something must be done to reform marriage law in Ireland has been a long and difficult process. The Labour Party have been in the forefront of the struggle. In the lifetime of this Dáil alone, there have been four attempts to initiate action to deal with the problem of marital breakdown. The Labour Party were responsible for three of the four Bills tabled. Although the Bills did not succeed, they served the purpose of concentrating the mind of the Dáil on the problem and of educating public opinion about the need for change.

We spent much time in Government in recent months framing the complementary proposals to put before the people and in this connection the work of the Joint Committee on Marriage Breakdown was of enormous assistance. In addition, the contribution of the Attorney General was outstanding. Acting entirely as a law adviser to the Government and not in a political capacity, his advice and guidance have been of enormous help and I wish to put that on record.

Those who support the introduction of divorce risk the accusation of being anti-family and anti-marriage. That glib, facile smear is all pervasive against those who wish to see change. I find it disturbing because it is far from being the truth. It is from a profound sympathy with those families who are trapped in broken marriages and of those families who are forced to exist outside of marriage that I advocate divorce. I do not go for the hypocrisy of annulments, giving a cloak of sanctity to further liaisons. That is theological hypocrisy that I as a Catholic, a legislator and, more particularly as a married person, find patronising, repulsive and unacceptable. Above all else, the annulment process, the criteria used and the ultimate agreement to granting the annulment are, in my view, destructive of marriage. It is the kind of divorce I do not want to see here.

[1321] All of us would prefer to live in a society in which every family was happy and every marriage a success but we know that, despite good intentions, marriage vows and the force of legal and social sanctions, marriages break down. No amount of theological analyses, the application of social principles or a veneer of compassion can eliminate the fact that marriages break down, irretrievably, irrevocably and in totality. I find it difficult to understand how people cannot accept that simple human reality. Needless to remark, in this House we are so anxious to save our seats we are afraid to admit that fact publicly and to say that something should be done. That is political hypocrisy.

Marriages have always broken down. They broke down before 1937 and they have broken down since then but in the past economic and social pressures kept the parties in a failed marriage under the same roof. There are people today in psychiatric hospitals who are in a state of perpetual trauma and who have suffered as a result of broken marriages. There are people in hospitals today who are the children of such marriages, who have never known a shred of happiness and who are not capable of responding to any human relationship.

There is an increasing willingness of parties in a failed marriage to split up, to form second relationships in some cases and to have second families. There is no need for divorce in a society in which the partners in a failed marriage stay together through thick and thin but there is need for divorce in a society where the parties in unhappy marriages break up and form new unions not recognised by law. At present these informal unions and families are outside the scope and protection of the law and Members of this House know only too well the appalling lack of protection afforded them. As the Joint Committee on Marriage Breakdown pointed out, not only is the law being brought into disrepute, but the situation is “harsh, unnecessary and unjust” to the parties in such relationships.

In the view of the committee, simple legislative reforms cannot adequately [1322] solve the problems at present experienced by parties in such relationships, one or both of whom may still be legally married to another person. For example, let us consider the question of illegitimacy. I am very pleased we published the Bill relating to illegitimacy but I am deeply disturbed that Members of this House, and one Member in particular, should find even that Bill objectionable. However, it has wide support and it will remove as far as possible the discrimination suffered by illegitimate children. Short of abolishing the concept of marriage itself, children born out of wedlock cannot be equal in all respects to children born in marriage. There is one way to allow the majority of children affected to have the status of legitimate children and that is to allow their parents to remarry. The current prohibition on divorce prevents many such parents from regularising their own, and their children's status.

The choice is clear. We can continue to do nothing on the basis that the legal concept of indissolubility of marriage is more important than giving formal legal protection to an increasing number of families, or we can face the reality of marriage breakdown in our society and provide a mechanism whereby the parties in a failed marriage and involved in second unions can have redress and protection at law. Of course, there are risks associated with the introduction of divorce. An examination of the wording shows how difficult it is to frame a proposition to put before the House but we must not underestimate the risks of doing nothing. Just as banning funerals will not abolish death, a “no” vote in the referendum will not abolish marriage breakdown. If the Government's proposals are rejected, legislators and citizens will continue to be asked to respect laws that are incapable of dealing adequately with marriage breakdown and the formation of families outside marriage.

The proposed referendum will give the majority of Irish people an opportunity to vote on the kind of political democracy they wish to see develop in this island. The present prohibition on divorce in the [1323] Constitution conflicts with what a significant minority of people on this island consider to be a civil right. The Oireachtas joint committee pointed out that representatives of most of the minority religions sincerely believe that the current constitutional position discriminates against members of their Churches and religion. The minority Churches believe in the indissolubility of marriage but yet see no contradiction in allowing divorce as a civil right. Is the legal concept of the indissolubility of marriage more important than the principle of respecting the rights of minorities?

I ask this question in the context of the whole island because it raises the issue of what kind of society we want to see develop North and South. Is it a society in which each community stands behind its principles and shouts “no surrender” or is it a society in which each community accommodates the viewpoint of the other and the legal system guarantees the civil rights of each? The choice for Irish people is a difficult one. God knows we are not known for our ability to compromise. Yet the very survival of civilised living on this island depends on all parties agreeing to disagree and simultaneously respecting the rights of others.

John Hume has rightly argued that divorce should not be introduced in the Republic simply because it exists in the North. The people of the Republic he argues must decide for themselves whether or not to permit divorce. Few are naive enough to believe that the introduction of divorce in the Republic would persuade the Unionists to look with more favour on their Catholic neighbours.

However, in the proposed referendum we cannot ignore the implications of a decision to maintain the constitutional prohibition on divorce for our aspiration to bring peace and stability to this island. A “no” vote will re-affirm the traditional view of southern society that one moral principle of one Church, the indissolubility of marriage, is more important than the moral principle of fundamental respect for the rights of others. A “yes” vote will, on the other hand, be a vote in [1324] favour of a new Ireland with which all traditions may identify. The stakes are much higher in the referendum than simply tackling the problems caused by marital breakdown. They are fundamental and long term.

The Tenth Amendment of the Constitution Bill tackles the problem of marital breakdown, in the Government's view, in a highly responsible and practical way. The Bill will include in the Constitution certain minimum provisions which must be complied with before a dissolution of marriage can be granted.

Thank God, there is a contrast between the Minister for Justice and the Fianna Fáil spokesperson on Justice because the Irish are anti-intellectual. We detest people with clarity of mind. We would like a degree of mutual confusion. That was epitomised by our colleague, Deputy Woods. Deputy Dukes, whether as Minister for Justice, Minister for Finance or an esteemed colleague in Government, has spelled out with clarity of mind what this Bill means and does not mean. He is not suffering in any way from the monumental incompetent analysis given by the Fianna Fáil spokesman on Justice. I preferred to listen on the monitor rather than stay in the House because I could fortify myself with miscellaneous language while confusion mounted on confusion during such contributions. I say that with respect to a colleague——

Mr. Kelly: He does not have to satisfy all sides.

Mr. B. Desmond: I stand corrected by my master at my back. Thank God, we do not have corporal punishment any longer.

Mr. Cowen: A Government of all talents. A collection of arrogants.

Mr. B. Desmond: The dissolution can only be granted by a court of law. The court must be satisfied that the marriage has failed, the failure must have continued for a period of at least five years, all reasonable possibility of reconciliation [1325] must have been tried and the court must be satisfied that adequate and proper provision has been made for any dependent spouse and child. If passed, the parameters for divorce legislation will be established in the Constitution and can only be changed by a referendum. All secondary legislation on marriage dissolution must comply with the parameters laid down in the Constitution and while it may be more restrictive, it cannot be more liberal.

While the concept of dissolution of marriage will be new to the Irish legal system, the procedures which the Government have proposed for deciding on applications builds closely on existing legal provisions for separation.

The Government's proposals for divorce proceedings incorporate the best practice in other countries regarding divorce. As far as I am aware, the proposals for State supported reconciliation and conciliation services are far in advance of those available in most other countries.

Some have criticised the restrictive nature of the conditions to be included in the Constitution. Five years of separation is a long time for a couple to wait. However, what is five years compared to the present life sentence? It is also appropriate that the minimum conditions for granting a divorce should be enshrined in the Constitution given the reservations which most Irish people have about divorce.

I do not believe that the minimum conditions for divorce set out in the Bill are overly restrictive. I believe that the Bill and the Government's proposals for subsequent divorce legislation strike the right note between the need for legislation to regularise the consequences of marriage breakdown and the justifiable fear of many Irish people of divorce on demand. In the words of the Taoiseach and the Minister for Justice, the proposals represent “the balance of social good”.

More serious criticism has come from those who believe that the Bill and the Government's proposals are too liberal. In particular, it is suggested that the grounds on which divorce will be allowed [1326] are amongst the most advanced and unrestricted in the world. The implication is that the Government are proposing divorce on demand. That is not so.

The proposed grounds for divorce are advanced in the sense of enlightened but that does not mean that divorce will be unrestricted. The grounds are advanced because Ireland, coming so late in the day to divorce, is able to learn from the experience of other countries and to avoid their mistakes. The Government could have opted for a system in which a divorce could only be granted where one spouse proved that the other spouse had destroyed the marriage. We could have gone down that road. Such proceedings, in the experience of other countries, are acrimonious, degrading and, as we all know from reading those appalling English newspapers when growing up, an invasion of marital privacy. It is for this reason that in the past 20 years the divorce legislation of many countries has been reformed to recognise that most marriages fail, not because of a fault by one or other of the couple, but usually through the actions or inactions of both.

That is why we use the word “failure” which is of critical importance in this Bill rather than the concept of breakdown, and I have no doubt that that will be elaborated on and analysed in great depth on Committee Stage. The concept of marriage failure or irretrievable marriage breakdown has, therefore, become an increasingly common feature of the divorce jurisdictions of many countries. Few would disagree that irretrievable breakdown as grounds for divorce is an advance in many respects of those associated with earlier divorce law. To argue, therefore, that the proposed grounds for divorce in this country are advanced is not to say that divorce will be unrestricted.

On the contrary, the constitutional provisions will ensure that we will have one of the most restrictive divorce regimes of any country. We have been told that it will be easier to divorce a spouse than to dismiss an employee. This is nonsense. Our labour laws provide considerable protection for employees but so far no one has proposed that, before an [1327] employer dismisses any worker, he should seek a formal separation from a court for a minimum of five years, that he engage in reconciliation and conciliation procedures and that he make adequate provision for the dependent spouse and children of the worker. It is hard to see how any more restrictive parameters for divorce could be included in the Constitution.

It is argued that if divorce is introduced, the legal concept of a permanent, indissoluble marriage and family home will be revoked and marriage will become a temporary arrangement at the mercy of one partner. I suggest that these arguments are more concerned with legal niceties than the reality of marriage in Ireland today. Despite the legal concept of the indissolubility of marriage, marriages are breaking down and increasingly informal families are being formed outside marriage. The reality is that growing numbers of people do not consider the legal concept of the indissolubility of marriage as an overriding consideration in their private lives. The legal concept of a permanent marriage is not preventing marriage breakdown. The prohibition on divorce is preventing informal families from benefiting from the legal protection which our society affords to families based on marriage.

I am Minister for Health and within the Department of Health resides the office of the Registrar of Births, Deaths and Marriages and one of the things which deeply disturbs me in the context of family social support in this country is the increasing number of young people who could not care less what we are talking about in this House and who could not care less what Church or what registrar is involved or what a marriage or birth certificate even consists of. I suggest that all of those who are now wringing their pious hands about the alleged dissolution of Irish society should examine the number of ordinary returns of marriages being enacted in our Churches and in our civil registry offices and they will notice that there is a decline. It is visible; it is evidential; it is documented.

[1328] There are also the several thousand additional liaisons every year where there is no regard for the law, where there is general disenchantment and disengagement, an informal marriage setup — and it is a marriage by whatever definition; people have a marital relationship. I am gravely concerned that the social emissions from that situation and the impact on children of such families — because they are families, informal as they may be — will be such that our health services, our social support systems, our legal system will not be able to cope with the major problems of succession in the future and will face such difficulty that we will all be regarded in the relatively short term as being somewhat irrelevant by those families, and the impact on society will be entirely destructive.

That is one very valid argument and I strongly hold that divorce for such families, and the bringing in of an updated process and body of law, will give fundamental protection to those children and to those individuals who, for one reason or another, with the changing attitude in society and particularly with the emancipation of women in society, now have an opportunity in the eighties to make up their own mind on very many issues rather than having social norms and legislative processes imposed on them. This is something which, of course, is extremely difficult to argue but I suggest it is something which we must bear in mind when we talk about divorce in our society.

As the Minister for Justice has pointed out, the introduction of divorce will not define all marriages as dissoluble. Under the Government's proposals marriages may be dissolved in law only in very restricted circumstances. I trust that the Irish people in the year 2000 will not regard us as being enormously restrictive on their personal liberties. But at this point in time it is the best constitutional protection we can afford to such families in the State itself. Accordingly, I reject — and this is a personal view which I do not propose to impose on everybody — the assertion that divorce will have a devastating effect on the constitutional rights [1329] and the protection of every married family in the State.

In particular it has been suggested that, if divorce were permitted, the focus of the constitutional guarantees for families based on marriage would switch to the second marriage. I am no lawyer but this argument seems strange to me. The Constitution obliges the State to protect families based on marriage. If divorce is introduced, the State would surely be obliged to protect equally the interests of all families founded on marriage, whether first or second.

Divorce, unlike annulment, does not have the effect of establishing that a marriage never existed. A marriage which ends in divorce was a valid marriage. It does not go through the hypocrisy of annulment which says that the marriage never existed. That is a piece of theological hair-splitting I have never been able to understand. A marriage which ends in divorce was a valid marriage for the period it lasted and therefore is entitled to the continuous protection of the State where necessary.

It is also argued that divorced wives would lose rights under the Succession Acts. Less attention has been paid to the rights of divorced husbands under the Acts. The Government realise that dependent spouses and children have special needs in relation to maintenance, financial and otherwise. For this reason, the amendment Bill proposes to write into the Constitution that a condition for the granting of any divorce is that the dependent spouse and children are protected.

If during divorce procedures property is divided in such a manner that is fair and leaves the dependent spouse and children in reasonable comfort, there is no need for any succession rights on death because the claims would have been made at the time of the divorce proceedings. As the Minister for Justice pointed out yesterday, a normal feature of existing separation agreements is a renunciation by each spouse of his or her succession rights on the death of the other. The Government's proposals contain no departure from existing practice [1330] in this respect. On the contrary, changes outlined by the Minister for Justice will strengthen the hand of the Family Court to protect the interest of a dependent spouse.

Of great concern to me and to many other Deputies, is the effect divorce will have on the children of the divorcing parents. There is little doubt that the decision of parents to separate is a traumatic one for children. It is, however, the fact of separation not divorce itself which upsets children — separation itself is the real impacting point. Research findings on the effect of separation by parents on children is complicated by the fact that the research has been carried out in countries in which separation and divorce are synonymous. We have not carried out extensive research in this country on the effect on children of parents separating. As Minister for Health I know there is no reason to believe that the trauma is any different for children whose parents separate in acrimonious circumstances. Allowing separated couples to dissolve formally their marriages is unlikely to increase the shock of separation for their children. Nor does a comparison between the estimated number of broken marriages and the experience of divorce in Northern Ireland suggest that the introduction of divorce in this jurisdiction will increase the number of children affected by broken marriages. The granting of a right to remarry will, however, give a greater sense of stability to the many informal families which now exist and particularly to their children. The right to remarry will increase the sense of security for many children born into informal families, as well as removing the stigma of illegitimacy.

It has been suggested that we would be unwise to introduce divorce to this country because we do not know the effect it will have for good or evil in our society. I have no doubt that there will be unforeseen consequences of a decision to remove the constitutional prohibition on divorce. However, we cannot ignore the consequences of doing absolutely nothing.

[1331] We would not have arrived at our debate today if there was not a growing recognition that the present situation was no longer tolerable and that the good of society demanded reform. We must face up to the problem of marital breakdown in our society, to the need to reform our marriage laws and to the challenge of creating a society which reflects the shared values of all civilised people. This sense that something must be done is, to judge from the two most recent opinion polls, shared by a significant majority of Irish people. They are rightly concerned that there should be no divorce on demand and that divorce be granted only under the kind of restrictions which the Government propose to include in the Constitution.

I am not foolish enough to predict the good or evil consequences of any change in legislation. According to my assessment and my conscience, I can only take that decision of giving support here today. I urge Deputies to speak to their constituents on this matter in the weeks ahead. The public are no longer prepared to tolerate the evils of the present situation and I believe that on mature reflection there will be majority support for the Government's proposals on referendum day. Those who favour the change should not assume that there will necessarily be a majority on polling day. We will have to explain ourselves to the people, campaign for the positive referendum vote. We will have to do so unremittingly between now and referendum day because to do less would be to deny our fundamental responsibility as Members of this House.

Mr. Cowen: This legislation proposes to change the Constitution by removing the absolute ban on divorce and inserting in its place the provisions set out in the Bill. The Minister spoke about people outside beginning to think that this House was a bit of an irrelevancy and that politicians were irrelevant. He made that remark when he was speaking about people who formed liaisons and who have no intention of marrying. The point he [1332] was making was totally irrelevant to the Bill under discussion which involves the right to remarry. If people are not interested in getting married at all, I do not see why the Minister should be so concerned about them in the context of this Bill.

I listened with interest to the Minister's contribution, abetted by interjections from Deputy Kelly. By his presence here this evening it appears he has changed his mind because in a radio interview he said he hoped this type of Bill would not be brought before the House this side of a general election. Presumably he has changed his mind because of electoral consequence. I look forward to his contribution as an eminent constitutional lawyer under whom I studied.

This Bill is the result of the extensive work of the Oireachtas Joint Committee which was set up to consider marriage and family life, to examine the problems which followed the breakdown of marriage and to report to the Houses of the Oireachtas thereon. In the debate on that report last November, December and January, it became clear that there were many points of consensus. As it was an all-party committee, one would have expected it to get immediate priority from the Government in implementing reforms which sought the protection of marriage and of family life. One of the points discussed in that report was divorce. This Bill is a result of the deliberations of that committee and the discussions which have taken place since then with interested parties.

As I have said, there are many points of consensus in that report. The Government claim — and I am sure they believe — they are upholding the status of marriage in our society but they have not seen fit at this time in bringing forward this Bill, which forms only part of their deliberations, to implement many positive proposals decided upon unanimously by that committee. They have spoken about the need to ensure the recognition in our educational system of the importance of relationships and personal development, something which could be implemented by a positive decision by the [1333] Government in that regard. They have spoken of the importance of pre-marriage counselling. Deputy Shatter, in his contribution on that report in this House, spoke about the hope that the State would encourage pre-marriage counselling, would fund it and provide whatever resources were available to ensure that it would continue to do its work on a basis even more widespread than at present. It would serve to help existing marriages which have not yet reached the stage we are speaking about here tonight, failure for a period of five years. Therefore, many things can be done to help existing marriages. I hope that the Government, being sincere about the matter, will not just emphasise this aspect, which I do not wish to diminish, but will assure us that they will give equal attention to helping and supporting the vast majority of marriages which have their everyday ups and downs but are sources of happiness to the partners in them.

Some work is now to be done on other points of consensus. The statement of intent of the Government resulting from the publication of this Bill concerns legislation to raise the age of marriage, and I welcome that. I welcome also the fact that mediation and conciliation services will be available in a new family court structure to deal with this problem, which is difficult and traumatic for the people involved, to try to diminish the adversarial, confrontational approach that exists at the moment for those prepared to go through the cumbersome procedure of obtaining judicial separations or to go through the detailed discussions involved in drawing up separation agreements. I welcome that also.

However, I am a little disappointed that the mediation and conciliation services being provided by the Government will apply only to those marriages which have failed. They will not be available to existing marriages which are undergoing difficulties, and perhaps the partners to those marriages would like to avail of the services, the professional advice, that will be available from both the Church counselling services and any services with the [1334] State might endeavour to set up to complement that work. That is what I understand from the statement of intent of the Government. If that is not the case, if we are to have a marriage counselling service funded and encouraged by the State available for all marriages which are not the subject of this legislation, perhaps someone from the Government, perhaps the next speaker, will clarify that for me and I will be quite happy to accept what he says about it.

I welcome the introduction of the family court system which is long awaited by the public and, indeed, members of the legal profession, who have to use the courts for the purposes of trying to regularise in some way the maintenance, guardianship and custody provisions. The joint committee raised other points in their report which they believed were factors contributing to the breakdown of marriage. They spoke about the abuse of alcohol, personality defects and many factors which obviously are difficult to quantify and on which statistical evidence was not available to enable any sort of informed decision to be made. All those factors identified should mean that the Government, who are sincere in their attempts to bring a balance and ensure that an informed policy will be implemented in this area, will act in those areas which the committee have identified as contributing to the type of situations which will be the subject of the divorce legislation if enacted.

Many cases are put forward for divorce. There is the case that relationships have ended. There is the fallacy of the existence of other relationships. It is claimed that divorce will help to uphold the dignity of the individuals whose marriages have collapsed. There is the opinion that the retention of marriage in such cases effectively undermines the institution of marriage and brings it into disrepute. We are told of many legal anomalies, of people who get foreign divorces or Church annulments and cannot get similar civil annulments because the grounds for civil annulments are much more strict than those for Church annulments. Therefore, there is [1335] an implied argument that legal consistency can be brought about by the introduction of divorce. Of course, that is not true. Some situations will not be covered by the introduction of divorce because, as is clear to anyone involved in the area, both Church and State claim to have a jurisdiction in the family and marriage areas. Therefore, it does not matter whether the State permits dissolution on grounds either consistent or inconsistent with the religious tenets of the parties seeking the dissolution. Irrespective of the grounds on which a decree is granted, the marriage will be regarded as unaffected in the religious sphere. It is only the civil contract of marriage over which the State has jurisdiction and for which it may legislate. Obviously, if we have divorce here as a result of the passage of this amendment and, for example, Catholics obtain a civil decree of divorce, rather than a legal anomaly there will be another anomaly in that the Church will not recognise the dissolution. Really, you do not clear the decks, as it were, by the introduction of divorce.

It is important to discard the stereotype idea of the Church's position, which seemed to be gaining ground. The Church have a right to state their position and they will do so in a mature way. Whatever the result of this referendum, one should not regard it as a victory or defeat for either Church or State. It is simply that the Church feel, and all reasonable people accept, that they have a right to make their position clear to the members of their faith and it is for people of that faith to inform their consciences and vote accordingly. In informing their consciences they may in good conscience decide to vote for the divorce legislation, and they are quite entitled to do that.

I should like to state the position of the Church in relation to Church-State relations as outlined by Dr. Daly and Dr. Cassidy in the New Ireland Forum and their attitude to marriage legislation. Dr. Daly said in relation to Church-State relations:

[1336] The Catholic Church in Ireland totally rejects the concept of a confessional state. We have not sought and we do not seek a Catholic State for a Catholic people. We believe that the alliance of Church and State is harmful for the Church and harmful for the State. We rejoiced when that ambiguous formula regarding the special position of the Catholic Church was struck out of the Constitution by the electorate of the Republic. The Catholic Church in Ireland has no power and seeks no power except the power of the gospel it preaches....

So far as the Catholic Church and questions of public morality are concerned the position of the Church over recent decades has been clear and consistent. We have repeatedly declared that we in no way seek to have the moral teaching of the Catholic Church become the criterion of constitutional change or to have the principles of Catholic faith enshrined in civil law. What we have claimed, and what we must claim, is the right to fulfil our pastoral duty and our pastoral duty is to alert the consciences of Catholics to the moral consequences of any proposed piece of legislation and to the impact of that legislation on the moral quality of life in society while leaving to the legislators and to the electorate their freedom to act in accordance with their consciences.

Mrs. Mary McAleese, who was an adviser to the Irish Episcopal Conference at the New Ireland Forum put it well when she said:

The Church believes in marriage as a sacrament, as an indissoluble union, a contract for life. It is quite entitled to hold that view and to preach that view to its flock. Its sole jurisdiction is in relation to its flock. It does not seek to have any jurisdiction beyond that. It is not entitled to, nor does it seek to, tell any Government that the Catholic view of marriage should be enshrined in legislation because it is the Catholic view but it does reserve the right — the same right accorded to any group, [1337] any individual in a democracy which holds freedom of speech as a central element, as a matter of public interest — to comment in relation to issues of public morality.

Those are reasonable sentiments expressed by a modern Irish Church whose flock is the majority of people in this country. During the week Dr. Caird, the Church of Ireland Archbishop of Dublin, said we are dealing with the competition between two different social philosophies. There are people who legitimately and sincerely hold the view that it is time for change and to allow the right to remarry to be part of the Constitution. They are quite entitled to their views and they put forward many good reasons for change. There are others who wish to preserve what we have and who are convinced that would be in the interest of society and the common good. I hope the debate in and outside the House when the Bill is passed and before the people vote will try to keep that in mind because there should be mutual respect for the strongly held views on both sides.

As a backbencher, who was not a member of the Joint Committee on Marriage Breakdown, but trying to make an informed contribution in this matter, I am amazed at the Government's refusal to wait for the results of the census to see the size of the problem before they hold a referendum. The last official report in this regard was the Labour survey of 1983 which said that something in the region of 1.4 per cent of marriages had broken down. I do not know if that figure is accurate. I do not suggest that the figure is more or less. I just do not know. We hear about thousands of people being divorced and hundreds getting annulments, it is all very imprecise. While I agree that many people in filling up the census forms were not prepared to divulge their marital status, when putting a constitutional amendment to the people, it would have been better to wait for these results to ensure that the people could make an informed and mature decision.

We are dealing with human misery and [1338] relationships which have turned sour. No responsible person or party would deny that many marriages have broken down. However, what is at issue between the competing social philosophies to which I referred earlier is whether divorce would be for the common good. Would it have a detrimental effect on other marriages? I do not know the answer but both sides hold strong views diametrically opposed in that respect. That is another flashpoint which I hope will not generate rancour or bad feeling which, unfortunately, was evident in the pro-life amendment debate. Deputy Andrews said we had learned from that debate and that it augurs well for the coming referendum. While all parties hold strong and sincere views, they are putting them in a way which ensures that the man in the street can decipher the point they are trying to make and come to a reasoned judgment as a result of listening to constructive debate.

I wish to refer to the text and what will be involved if the referendum is passed. My comments are being made on the assumption that the amendment will be passed. I am trying to visualise the type of arrangements that will have to be made in the event of the amendment being passed. There is great concern among many people about the property rights of the first family. The point of view in regard to this as expressed by Deputy Woods should be discussed. The whole idea of the debate is to tease out precisely the implications of the amendment. It is not for us to score points against each other. We must put forward our views to help the general public come to their own conclusion. We must remember that all constitutional amendments are at some stage subject to judicial review. Legislation may be amended in the House but the courts have to interpret the Constitution.

According to the Succession Act where a testator dies wholly or partly testate the wife has explicit rights. Where there are no children she is entitled to half of the estate and where there are children she is entitled to one-third of the estate. However, in those testacy provisions in [1339] the Succession Act there are no corresponding explicit fractions for the children apart from the terms of a will. I accept that section 117 protects children. Under it an application may be made on behalf of a child of a testator to ensure that the testator lived up to his moral duty to adequately provide for him or her and to ensure that child gets a fair share of the testator's estate.

It is my opinion that because the words in the section are, “child of a testator”, the children of the first marriage will be protected in the event of the constitutional amendment being passed and the testator forming a second union and having children. That is my view on the issue and it may be added to by people who are more qualified legally than I am. However, the public would like to know if that is the case.

Mrs. Fennell: Non-marital children will have a right.

Mr. Cowen: I am aware of that and I will deal with that issue in a few moments. I will not forget the Minister's Status of Children Bill.

Mrs. Fennell: It is not relevant to that.

Mr. Cowen: What point is the Minister making?

Mrs. Fennell: All children will have a right under section 117, as the Minister said in the course of his speech.

Mr. Cowen: I am aware of that. The Status of Children Bill will rid us of the legal disabilities which attach to illegitimate children. They will be able to obtain redress under that provision. In that context we can say the children of the first union will be protected in the event of a divorce in regard to property rights of one of their parents who subsequently forms a second union. The position is different in regard to spouses. When a testator who forms a second union after a divorce dies, the wife of the second union will be entitled to the [1340] explicit rights as set out in the Succession Act. If he dies testate she will be entitled to half, where there are children she will be entitled to one-third. If he dies intestate she will be entitled to two-thirds of the estate and the children will be entitled to one-third.

I must point out that the rights of the children of the first marriage will by definition be diluted because if there are two children of the first marriage they will be entitled to one-third between them on an intestacy but if there is a second union and two more children of that union there will be four children to divide one-third of the estate between them. I am not saying there is anything wrong with that or that the children of the first union should in some way get priority because they were born before the children of the second union. However, people should be made aware that that is what will happen. People can work out the mathematics for themselves but, obviously, the children of both unions have rights to equal shares. It is obvious that when there is a second union the share of the children of the first union automatically diminishes.

Mrs. Barnes: Our traditional values are all about large families.

Mr. Cowen: I am not running that down or saying there is anything wrong with that. I do not see the relevance of that interjection. I welcome the statement that family courts will be established and that they will be able to make provisions in regard to the family home, the custody of children and so on. They are not within the jurisdiction of the courts in regard to judicial separations. The proposed reform of the judicial separation procedure to make it less cumbersome and widen its ambit is something we should welcome. However, in the event of a divorce a decision will have to be made on the property rights of the first wife, I understand the court will have a right to provide for a lump sum payment to the wife. I welcome that because up to now the court could not do that. That becomes relevant where a person who [1341] has a house worth £100,000 is divorcing his wife. In that case a lump sum payment may be made to the wife to enable her to purchase a house. At the moment under the judicial separation procedure it is only necessary to provide alternative accommodation and that need not be permanent accommodation. It is important that such a provision is contained in any legislation introduced in the House in the event of the amendment being passed.

I hope the proposed legislation will include a provision to deal with the pension rights of a husband who is divorcing his wife. I hope it will be necessary for him to give an assurance to the court that a certain portion of those pension rights will be made available to the first wife in the event of his death subsequent to his forming a second union. It is my view that the procedure will be that when a divorce decree is given and a lump sum payment is made to help the wife get a house, there will also be monthly alimony payments depending on the financial circumstances in each case. People should be aware that it would be possible for the wife subsequently to revert to the court, in the event of a change of financial circumstances of her former husband, and have her alimony payments increased. There is the mistaken belief that, once divorce occurs, that is it, that the first wife has no possibility of having her alimony increased. I do not think that will be the case but I await clarification by Government speakers who will know better the type of legislation to be introduced. I think that is the position obtaining in the United Kingdom and that more than likely it will be the case here also. However, people tend to think that, once divorce occurs and property rights are decided, that is the end of the matter. I do not think that will be the case and I hope I am right in that assumption. It is important that a wife have some redress subsequently, just as it is important in the event of a separation, when a spouse can revert to the court to have her maintenance order varied in the event of her former husband having an increased income. There should be that facility in divorce proceedings also, or even to have [1342] alimony payments reduced if a former husband's financial circumstances deteriorate.

With regard to the special provision being made for families or spouses where a couple may have been separated for more than five years at the date of implementation of this proposed divorce legislation — if and when it is passed by this House — there is a slight anomaly. The proposal put forward by the Government in relation to the requisite two-year period after a judicial separation having been granted, or a separation agreement having been made a rule of court, is to enable the new family court to assess properly the effectiveness of the provisions made under those arrangements, to ascertain whether they are sufficient for the spouse and children who have been separated from the former spouse. From my reading of the Government statement those provisions will not obtain in relation to those people who apply for a divorce under the special provisions outlined. I wonder why that is the case. For example, in those circumstances, how will a family court properly assess how effective are those arrangements? I take the point that, before applying for a divorce, a person must make adequate provision for the spouse but there does not appear to be a two-year waiting period required from the time the separation arrangements are decided.

The Minister, in introducing this Bill, placed some emphasis on divorces which arise from marriages which begin to founder from the date of implementation of the divorce legislation, emphasising that it is important there be this two-year waiting period in order to ascertain that the rights of the spouse and children are safeguarded. In the special provisions outlined in paragraph 17 of the Government's statement that two-year period is not required, something which might well be teased out on Committee Stage.

Various points have been raised in the course of the debate to date. One that must be discussed more fully is that period of reflection. In the course of his remarks the Minister said:

[1343] People who have already been separated for five years at the time the legislation to provide for divorce comes into force will be able to apply for a divorce once they have proved that fact and also that proper provision has been made for dependants. As regards people who are not separated for five years at the date of enactment of the legislation, it will be an additional condition to the general requirement of five years separation that they will first have to obtain a decree of judicial separation or enter into a separation agreement which is then approved by the court. If they so desire, they may then present a petition for divorce when two further years have elapsed. The purpose of requiring a decree of judicial separation or court order approving a separation agreement is twofold.

Perhaps I am reading that incorrectly but I am not at all clear on that point. When one tries to envisage circumstances that might arise in that respect, one becomes confused. Perhaps that point could be clarified also.

It is to the credit of the members of the Joint Committee on Marriage Breakdown and the positions adopted by the political parties in this very sensitive area of family law that the debate is proceeding in the manner it is. Regardless of how small the number of people experiencing marital problems or difficulties it is good that the issue be put to the people to decide. We are demonstrating some compassion and political will in allowing this matter to go before the people. However, it is important that all of the views to be expressed be expressed in a tolerant manner. It should be remembered also that the arguments against allowing this legislation be enacted — whilst difficult to express or back-up with statistics — constitute strongly held views. We must remember that we are dealing with many people who take their religion very seriously and view this proposal as undermining [1344] their way of life. However trenchantly the articulate members of the pro-divorce lobby wish to put their case it is to be hoped they will respect that other deeply held view widespread throughout the country. There are many people holding that view who would find it difficult to give it expression but it is held.

If we conduct the debate in that manner then, whether or not the proposal is passed, there should not be any traumatic consequences. It is my hope that the acceptance or rejection of the proposal to be put in the referendum will not be seen as victory or defeat for Church or State. In some of the speeches yesterday I detected an attitude that it is important for us to demonstrate that we are a democracy not to be interfered with by the Church, demonstrating our independence as a State. I do not think that is necessarily true at all. I believe that the Church has a role to play in this country and will continue to play that role. I know the churches will put their case well and sympathetically in the difficult circumstances obtaining. I do hope that nobody will try to emerge as a victor on this issue. I would hope there would be no triumphalism on the part of people who are anti-divorce in the event of the proposal being rejected. The problems obtain and must be dealt with as best we can in the circumstances. I hope the electorate will be fully informed as to all of the implications and that their decision will be respected afterwards by the legislators.

Mr. Kelly: I listened with interest and respect to a very sober and objective speech by Deputy Cowen. I almost felt myself in a position in which his situation and mine were transposed, where instead of he having been a relatively recent student of mine, he was the professor and, standing somewhat aside from the dust of the area, the untidy pit of the lecture hall, was presenting both sides of the question impartially. I hope he will not take it as meant offensively to him because I genuinely and unfeignedly want to compliment him on an extremely [1345] objective and well presented speech. But he is, after all, in politics; and politics has something to do with leadership. Perhaps it is a bug that gets at us, or something a little better than that or perhaps a little worse. Perhaps because our mothers left us too long unattended on our potties, when we were small, we have a compelling desire to be taken notice of and feel obliged to spend the rest of our lives telling others how to run theirs. For whatever reason, however deeply buried our motives, we are in this House to offer some kind of leadership. I am sorry that Deputy Cowen should have spoken immediately before me; if another Deputy had presented a speech with the same thrust, or lack of thrust, I should have said the same thing — but of course without being able to add in that other Deputy's case what I can sincerely add in his, that his was a very objective, sober and in the deepest sense respectable contribution in every other way.

However, the way in which it falls short of deserving respect is in its lack of offering direction to the people. Surely that is what we are paid for. Surely that is what we foam at the mouth about on porter barrels outside church gates. That is what we demand people's votes for — that they shall entrust and confide their futures to us because we know best what is right and good for them. I think that is a hellish presumption on the part of politicians. I do not think I am unique in this, but I have long periods of dejection and lack of confidence, asking myself what gives me the right to be haranguing the people about how they should do this and that, lecturing them when I am not even able to keep this or that aspect of my life or thought in order. What gives me the right? Ought I not to close down, get out of the business? However, so long as I am there, I try to say what I think and believe, not perhaps what others should do but I certainly do not draw a salary and run for election without at least telling the people what I am going to do.

Deputy Cowen is one of the youngest members of his party and I say sincerely that everybody in the House knew and respected his father. Although he is in a [1346] different party from me and I regret that he is not in mine, and although his victory in the by-elections about two years ago was a defeat for us, I was glad to see him getting a chance. I do not believe that anybody on this side was so begrudging as to speak otherwise about him. I hope that he will have a successful and brilliant career here. The sobriety and objectivity with which he presented his material this evening makes me think that he will.

But so far as leadership is concerned, anything that he said here might have been compared with sealed orders given to a general by the mad King Ludwig of Bavaria. The general might have led an army 500 miles across the Alps and become hunted by the Russians and the Kalmuks on the one side and the resurgent Italians on the other. He might have been told not to open those orders until he reached the town of Tremezzo, for example. All these people are slavering after his blood. He opens the orders and they tell him that he is to maintain close formation, to deploy his artillery in such a way as to cover his infantry, he is not to expend his cavalry reserves too early — but they fail to tell him who he is to fight.

I do not mean to wound Deputy Cowen. He spent some years watching me and knows that I speak harshly and bitterly from time to time — none of us is free from that, or very few. He knows me, I hope, well enough to know that I have really no animus against any Member of this House. It is only an accident that I happen to be speaking immediately after him. Had Deputies Barrett, Treacy or Leyden spoken immediately before me and had the same general lack of thrust, I should have said the same thing. I certainly would not have expected to hear a speech along these lines from Deputy Leyden whose main concern in here, from listening to him previously, appears to be the unmarried bachelors in his constituency who are prevented by the Government's parsimony from engaging in the matrimony which this House is trying to make possible the dissolution of. I would not have expected such a speech from Deputy Leyden but [1347] perhaps from Deputies Treacy or Barrett.

The Deputy said, when he saw me here with my reading glasses, papers and wounding clippings from the paper which I intend to read out to hurt and annoy people, that I had all the signs of being set to make a speech but that it appeared that I had changed my mind about the subject because when he last heard me on the subject on the radio I had said that I thought it was a bad idea to go ahead with this divorce referendum. He is quite right. I did say that on the radio and still think it. It is a debate which has been thrust upon some members of my party — I have not counted them and do not collogue with them and I hope everybody here knows that I do not intrigue or whisper behind peoples' backs — but I suspect that I am not the only member of this or the other party who would have preferred this issue to have been deferred for a little longer. That is not so that we might shelter behind a screen and conceal our opinions — and I have not concealed my opinion about this, unconfident and faltering though it may be.

This is the last year of this Government before an election, give or take a few months. They have many serious problems on their plate. I am personally unwilling that they should be defeated but do not mean to wound anybody on the far side by saying so. I am not unwilling for any prospect of gain or lack of office on my own part but my honest judgment is that the country would be better served by keeping the other party — at least under their existing leadership structure — away from these benches. If things change, if there is a thunderclap and the clouds roll away and the sun smiles on the hillsides and a different row of faces appear over the parapet over there from me, things will be different.

Mr. Leyden: Things will be different, anyway. That is definite.

Mr. Kelly: I may perhaps come to the conclusion that the country's interest would be better served by our vacating [1348] these benches. Although everybody knows the reservations which I have about the Coalition agreement between the two parties which support this Government — which explains why I am standing here at the back — I still believe that, with all their indecision and their frustrations in some regards because of different ideologies, it is infinitely better that they should continue in office than that they should be replaced by the kind of Government that we had in 1982, or between the years 1979 and 1981. I am therefore very anxious that the Government should concentrate, between now and the next election, on issues which I am not saying are necessarily more important, and certainly will not be more urgent for people caught up in a broken marriage, but which are nationally of deeper and more permanent interest. Success in those issues will be crucial to our success in the election. I think we should have been forgiven, but perhaps not by many groups — and I do not mean to diminish or belittle this aspect — who have a very anxious and urgent interest in reform in this area. I intend to support and vote for this amendment, in case anybody did not know that before. I do not think that there will be a vote here, but I am going to support it here and I am going to support it in the ballot box. However, I think that it would have been better had the debate and amendment process been left until after the next election, for the reasons that I have given.

Anybody called on to speak on this or any related issue or on anything to do with morality in areas which are as highly personal as marriage and anything in the entire sexual sphere, or near or related to that, or caused or conditioned by it, unless the speaker is a buffoon or a hypocrite, must be something less than totally confident. He has to be reluctant to speak on it. I hate laying down the law. I no doubt do it on other matters, but have always tried to avoid doing so on matters connected with this area, because I feel there is far too much imperfection in my own life, attitudes and mind to be a safe guide for anybody else. I would imagine that many Deputies of both sexes and of [1349] all ages would be honestly willing to say “me too” in that regard. I hope they would. I hope I am not alone in that and I do not believe I am alone in that lack of confidence.

Laying down the law on moral issues or on issues of a social kind which are conditioned by moral considerations is peculiarly suspect and to many people peculiarly hateful in a politician. Politicians are a hissing and a byword to many people, wrongly so, no doubt. Perhaps the public do not understand the motives which drive people into it, the bug which gets into them, or the psychological deficiencies which force them to try to make up in this arena what they lack in others. They may not have enough sympathy. All they see are a lot of fat cats or people who ride along enjoying a high profile and getting a lot of coverage and publicity on what they think is a lot of unearned money. That is undoubtedly a false and unfair criticism. I would say that no matter who was in office. If there were a crowd of Marxists or Balubas in office and forced to go through the hoops which everybody here on both sides has to go through every week of the year, I would still say it.

Rightly or wrongly, the public perception and regard for politicians are not very high. The last straw to the ordinary member of the public is to be pontificated to about his marriage, or about how he should run his sexual existence, by a crowd of fellows who do not mind robbing the State blind, because that is how he sees it, who do not mind running us into war if they could, because that is how he sees it, who makes excuses for murderers, because that is how he sees it, who palliate crimes for which he would be sent to prison a hundred times over, because that is how many citizens see it.

The last straw to him is to be lectured, to be whinged and whined at by someone in this House about how he should run his marriage, about whether he should control fertility by an artificial or mechanical means, whether he should as I heard — I do not think it would be right to name him but anybody who looks back over the record will recall him — a Fianna [1350] Fáil frontbencher who spoke here today say when we were debating one of the very minimal extensions of the contraception law in 1979, resort to a urine dipstick as a means of calculating the fertile cycle of a woman in matrimony. Matrimony, relations between man and a woman. He really thought we might reach the day when technology would allow us to decide matters of this kind and run a marriage with a urine dipstick. That was not very long ago, Sir. You were in the House. I do not think any other Deputy here was. I think, Sir, it is only you and I who are left out of that vintage.

Mrs. Barnes: There are more recent examples.

Mr. Kelly: It was only in 1979 or thereabouts I heard that said.

Mr. N. Treacy: That is a very telling contribution.

Mr. Kelly: That stinks to ordinary people. Anyone expressing his or her views here on a matter like this is running the risk of incurring the contempt of many of the people who elected them. No one here should be arrogant or positive about matters of this kind. I have said how I am going to vote in my own ballot box even if I am not required to vote here, but I am not going to campaign to get anyone else to do so. I feel too unsure about what I am going to do. I hope I am not making a mistake and I hope I am not doing more harm than good. I will not ask anybody else to vote that way, nor will I knock on doors, nor will I ballyrag or arm-twist anybody to follow my example. I feel I am discharging my duty, and it is a hell of a sight more than some Deputies in this House will have done by the time the debate ends, by saying what I propose to do.

I agree with Deputy Cowen and some other Deputies on both sides who spoke in pleading that the next six weeks should not be an acrimonious period. I must say that one of the reasons why I was very much against holding this at all on this [1351] side of the election was that I dreaded the stinking cat-fight which we had here in 1983 on the abortion referendum. I felt we were going to get a repetition of that. I must frankly tell the House I am agreeably surprised that has not turned out to be the case. So far has it not been the case — I say it although it involves admitting I was wrong in my prediction — that I have not had one single letter, one single telephone call or one single urgent visit from a constituent or anybody else pressing me to join the Minister for Education, Deputy Glenn, Deputy Flanagan, or whatever other Deputy who may speak here taking the same line as they have taken. Not one. Maybe that is an exaggeration. I have had one or two letters along those lines but I certainly have not had the stinking cataract of propaganda and written material from both sides which I and every other Deputy had on this side of the House in 1983.

I am delighted that if this campaign has to be fought it will be fought in a more civilised atmosphere than what we then saw. Something of the 1983 atmosphere survived into the following year, or it may have been early 1985, when we extended the contraception law further with Deputy Desmond's Bill. I am very agreeably surprised and grateful that nothing of that kind so far as my experience goes has been seen on this occasion. I hope when the debate has ended, that will mean when the referendum is over, I will not have any reason to withdraw that tribute.

In that connection I want to say one other thing in regard to lobbying and sending of post and circulars and letters threatening electorate disaster unless I vote this way or that way. We all have to live dangerously or if we do not, we are not earning our keep. If anyone is not willing to say what he thinks in here, he is not earning his salary. We have to live dangerously and take the risk of electoral disfavour by this or that route. I know that many people who have voted for me are going to vote “no” in this referendum. I am sorry to offend them and I hope I will not lose their support. I have to take [1352] the risk that I will. I want to say this. The Government's outside allies on this matter are not going to advance the Government's position very far — I am speaking about the Government as a whole — if they say things of the kind which the Divorce Action Group were reported as saying this morning. The Divorce Action Group consist I presume — I do not want to appear by using the word “presume” to be putting a disdainful distance between myself and them; what I mean by “presume” is that I do not know them personally — or take it for granted are people who either have in their own lives or are near enough or feel strongly and concerned enough about marital problems to form such a group. That group are not a church. They do not have a universal mission of any kind or conceive themselves as having that.

Once a divorce jurisdiction has been attained that group will presumably regard themselves as functus officio and dissolve. They are here for one purpose and one purpose only and once that purpose is achieved they will have no other purpose. That group are making a serious tactical mistake — if I may presume to lecture them on tactics — in saying as they did, as they were reported as saying this morning, that the Catholic Bishops had no business launching a campaign or issuing pastorals on this theme. I am not going to have time to get to the end of what I want to say before I report progress, but it is important for them to understand that tactical damage is done to what the Government are trying to do — I would have, as I said, preferred had they diverted it for a year — by that kind of thing. Of course, the Bishops, even though they are giving advice which I do not feel able to take, are entitled to issue pastorals. That is what they are there for. If they did not act as pastors, because that is their only pretention in the world, they too would not be earning their keep. They too would be subject to the reproach that they were swanking around, getting a high profile, their pictures in the paper with everyone bowing and scraping but that they were not doing [1353] their job. It is only in issuing pastorals and giving guidance that they are doing their job. The Divorce Action Group should get that into their heads now.

Cuireadh an dióspóireacht ar athló.

[1354] Debate adjourned.

The Dáil adjourned at 11 p.m. until 10.30 a.m. on Friday, 16 May 1986.