Seanad Éireann - Volume 144 - 12 October, 1995

An Bille um an gCúigiú Leasú Déag ar an mBunreacht (Uimh. 2), 1995: An Dara Céim. Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Second Stage.

Tairgeadh an cheist: “Go léifear an Bille don Dara hUair.”

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

Minister for Equality and Law Reform (Mr. Taylor): Today, this House has an opportunity to discuss the Fifteenth Amendment of the Constitution (No. 2) Bill which will have the effect of allowing the people to decide whether the Constitution should be amended to include a provision which [1413] would allow for the dissolution of marriage in limited circumstances and which would carry with it the right to remarry.

The existing prohibition in the Constitution on the enactment of legislation to provide for the grant of a dissolution of marriage is so absolute that it does not, no matter what the circumstances may be, allow the courts to dissolve a marriage. Persons who have been separated for a long time, many of them deserted, cannot divorce and go on to remarry if they so wish. The referendum that is proposed gives us an opportunity to change that situation.

Irish courts have never had a divorce jurisdiction and, with the exception of those divorces obtained abroad which are recognised here, Ireland has been, since attaining independence, divorce free. Nonetheless, the sad reality is that a society which is free from divorce is not a society which is free from the problems associated with marriage breakdown. As part of the process of confronting that reality the Government has brought forward this Bill.

It may be salutary to look briefly at the litany of statistics which point to the reality of marriage breakdown in this country. The first five years of the operation of the Judicial Separation and Family Law Reform Act have seen just over 9,500 applications for judicial separation. Applications for civil decrees of annulment, although small, continue to grow steadily. In the court year 1993-94, over 4,400 applications for barring orders were sought at District Court level alone.

These figures, when coupled with the 1993 Labour Force Survey statistics which suggest that the marriages of some 75,400 individuals had effectively broken down at that time, do not paint a picture of a society which can congratulate itself on having a divorce free culture. We already have in place laws which aim to regulate the financial and property arrangements of a couple whose marriage has broken down and which aim to secure the welfare of any children which they may have. These provisions are generally on a par with [1414] those prevailing in countries which do have the jurisdiction to grant divorce. The essential element missing here is the right of separated couples to remarry.

As I said in the other House, the publication of this Bill is the latest stage of a careful and detailed programme of family law reform which has been pursued by successive Administrations. Each and every Government over the past decade, including Governments involving both Fianna Fáil and the Progressive Democrats as well as the three parties now in Government, have carefully and methodically constructed a package of legal reform which has meant that all of the issues arising on marriage breakdown have received attention — except the issue which this Bill is designed to address, the right to remarry.

As a further illustration of this carefully crafted approach, this Bill is accompanied by a Government Paper, entitled The Right to Remarry, which sets out the detailed implications of divorce in relation to financial and legal issues such as maintenance, succession and pensions. That paper also contains the full text of a 39 section draft Bill, the Family Law (Divorce) Bill, which would be introduced by the Government following a “Yes” vote.

Indeed, just as the White Paper on Marriage Breakdown published by the then Minister for Justice, Padraig Flynn, in September 1992, set out the 1992 status of the work in progress on family law reform, The Right to Remarry paper sets out the 1995 position. I believe that it represents a comprehensive survey of all the issues of interest to people in connection with divorce. I have arranged to send copies of the paper to every public library in the State and every citizen's information bureau in the NSSB network where it will be available for consultation.

Before looking in more detail at the text of the amendment Bill, I want to deal in a general way with the philosophy which informs the approach the Government is taking.

[1415] There has been critical comment concerning the proposal to insert additional provisions in the Constitution on the basis that it would be more appropriate to opt for a simple deletion of the existing divorce ban. It is revealing, however, that a majority of people appear to endorse the approach which the Government is taking and I believe there is strong support for writing the conditions on which a divorce will be obtained into the Constitution.

There are genuine apprehensions about the impact which divorce of a kind which would be obtainable on easy terms might have on our society. For this reason, there is appreciation of the fact that the Government is not seeking to take to itself the power to change, without further consultation, the course which any divorce regime that may be introduced into this jurisdiction will follow. Instead, the Government is inviting the electorate to support a form of wording which cannot be changed unless a future referendum endorses such a change. This is an inherently democratic approach to what is, for many, a difficult social problem. It is also an approach which the Government is confident will result in a limited form of divorce being introduced into this country following a “Yes” vote in the forthcoming referendum.

In proposing the introduction of a divorce jurisdiction here, the Government is not, in any sense, seeking to diminish the value of marriage as an institution which is pivotal to our society. However, the idea of marriage which we respect is not one where the spouses are locked together in misery and unhappiness; where the relationship has the form of marriage but the cherishing and the communication which make the relationship real have long since vanished.

An 18th century judge once expressed the view that—

When people understand that they must live together, except for a very few reasons known to the law, they [1416] learn to soften by mutual accommodation that yoke which they know they cannot shake off. They become good husbands and good wives from the necessity of remaining husbands and wives....

I imagine there are few today who would endorse the coercion of spirit which this quotation represents.

We question the social utility of preserving outward forms where inner reality is absent. The overwhelming majority of people who enter into marriage do so with idealism, hope and a determination to make it work and, for the overwhelming majority, the original partnership survives intact. For some, however, the marriage has not worked and, for a variety of reasons, they have been left to live with the reality of marriage breakdown. Second relationships have been formed and children have been born within those relationships. Despite the fact that these relationships may be loving and stable, it is undeniable that both children and adults do not have the dignity and status which comes with being formally and legally recognised as a family within the community. This referendum proposal, if it is approved by the people, will give them that recognition for the future.

The Bill proposes that Article 41 of the Constitution be amended so that a court may grant a dissolution of marriage where, but only where, it is satisfied that each of a number of specific conditions has been fulfilled. The first of these is that, at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years.

The term “living apart” has given rise to some controversy but, in essence, it is quite straightforward. The concept is used in the Judicial Separation and Family Law Reform Act, 1989, and it is also one which is familiar in other jurisdictions. In such jurisdictions, it has been held that, while the phrase will typically cover the situation where the [1417] parties have physically separated and are living in different places, it may also be possible to prove separation even where they continue to live under the same roof. What is crucial to this determination is the idea of a household since the general view is that, where there is no sharing of domestic life, it is possible for there to be two households under the one roof. There is every reason to be confident that the courts here will follow this line of judicial reasoning.

The reason for allowing the four year period of separation to be cumulated over a five year period is to allow a couple to make a reasonable attempt at reconciliation secure in the knowledge that, if the attempt does not work out, they will not have put their chance of getting a divorce at risk. Such reconciliation will be facilitated by the substantially increased financial support which the State has made available to counselling organisations in the last two years.

The four year period itself is a guarantee that spouses will not enter into a divorce without giving the matter considerable reflection. It may also be conducive to the spouses reaching agreement on the terms of their separation in a way which will ensure that, if the divorce petition does come before a court, many of the key elements relating to children, finance and property will already have been settled between the spouses. In this way, the hearing itself may well be less acrimonious than it otherwise might be. The absence of acrimony would clearly be beneficial to any children of the marriage concerned since it is a matter both of research and of common sense that minimal conflict means minimal trauma for such children.

With a view to maximising the chances for such agreed settlements, the Government has already made increased funding available to the family mediation service. In addition, a development plan has been drawn up which will see a more extensive [1418] mediation service becoming available throughout the country.

The terms upon which individuals may obtain a divorce will be seen by some as restrictive. However, while compassion demands that we alleviate the plight of those individuals whose marriages are long since dead, it does not, I believe, require that we introduce a divorce regime into this country which will be easy and quick. Our society must deal with the problem which arises for those people in second relationships who cannot remarry because there is no divorce here. The Government proposal which is designed to meet that problem is balanced and measured. It recognises that people deserve a second chance at securing their happiness within the confines of a stable marriage while, at the same time, it seeks to ensure that marriage itself is not devalued.

The second condition of which a court must be satisfied before a divorce will be granted concerns the absence of any reasonable prospect of a reconciliation between the spouses. Clearly, if such a possibility exists, it would be inappropriate for a divorce to be granted. That is also the reason legislation will specify that the divorce proceedings may be adjourned at any time to enable the spouses, if they both so wish, to effect a reconciliation.

The third condition is designed to ensure that vulnerable spouses and dependent family members are provided for. It ensures that the court must be satisfied that proper provision, having regard to the circumstances, exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law. The latter phrase is designed to cover a child where a spouse is in loco parentis, for example.

The draft Family Law (Divorce) Bill assigns to the court extensive powers, which mirror those already available to it in the context of judicial separation, to make financial and property adjustment orders in a way that is designed to do justice to both parties and to any dependent members of the family.

[1419] These powers include the ability to make a maintenance order which might be periodical in nature, or a lump sum payment. Orders for the direct deduction of maintenance out of the paying spouse's earnings may be made. A property adjustment order, whereby property may be transferred either to a spouse or to a dependent member of the family, is also possible. Detailed provisions will govern the position relating to occupational pensions so that, for example, a court may “earmark” a portion of the retirement benefit of the spouse who is a member of a pension scheme. In this way, when that person dies, the benefit will be paid direct to the former spouse. It will also be open to a former spouse to “split” the pension benefit so as to create an entitlement to an independent and separate benefit. The position with regard to succession rights is also dealt with comprehensively.

The draft divorce Bill also provides, as does the current legislation which allows for judicial separation, that in the making of all financial and property orders the court must have regard to a very broad range of matters. This ensures that the circumstances of both spouses can be evaluated in full. In particular the vital contribution of a spouse who has chosen to look after the home and care for the family must be given the appropriate weight when it comes to the overall adjustment of property.

The fourth condition in the amendment is that a court must be satisfied that any further conditions prescribed by law are complied with. In the draft divorce Bill, it is provided that the courts may only exercise jurisdiction where either of the spouses is domiciled in the State at the time of the institution of the proceedings or, alternatively, is ordinarily resident in the State throughout the period of one year ending on that date. That is a potential statutory example of such a condition.

The proposal contained in the Fifteenth Amendment of the Constitution (No. 2) Bill is buttressed by a decade [1420] of legislation in the family area which is designed to support the family, both materially and otherwise. It is accompanied by a draft Bill which clearly spells out the detailed provisions which would apply if divorce is introduced here. The structures which allow for counselling and mediation are in place which will assist those couples who wish to obtain guidance in resolving differences in their marriages or who are willing to negotiate separation agreements on an amicable basis.

Legal aid will be available to individuals seeking a divorce in the same way as it is now available to persons seeking a judicial separation. The Social Welfare (No. 2) Act, 1995, ensures that a divorced person will not be at a loss in terms of his or her social welfare entitlements. Detailed taxation provisions have been devised which, in essence, mean that divorced couples will be treated the same way for income tax purposes as separated couples. Similarly, property transfers between former spouses on foot of a court order governing a divorce settlement will be exempted from all capital taxes. These provisions must be seen as a package geared towards ensuring that divorce, if introduced here, will have the legal and administrative context that is necessary to underpin its working.

The position of children under our laws has always been of special importance. That importance is signalled by a considerable body of law which has been initiated by this Government and successive Governments in recent times. Support services also continue to be improved. The Government is committed to reform in this area and the Family Law Act, 1995, and the Domestic Violence Bill are part of that process. The amendment Bill is framed to ensure that the welfare of children on dissolution of a marriage is protected and the divorce Bill contains a series of measures which allow the courts to make orders in support of those children. These measures already exist in the context of judicial separations.

[1421] It has been suggested that the introduction of divorce will undermine the welfare of children but this takes no account of the obvious harm to children that must in reason follow from being in an irredeemably unhappy home. The deepest hurt to children comes from the conflict that is present in families that are the victims of marriage breakdown and, where abuse and violence have been a problem, remarriage must have the benefit of restoring the children to more harmonious family households.

It has been suggested that the property rights of divorced spouses will be unfairly compromised. This ignores the vigorous and, I believe, successful work of the Oireachtas in putting in place a comprehensive regime to ensure precisely that this does not happen.

Most fundamentally, it has been suggested that the reform proposed here would undermine the very concept of marriage and the family as a permanent partnership fundamental to our society. This is an objection which I reject completely. The State has pledged itself to guard with special care the institution of marriage on which the family is founded and that is an honourable pledge which is being fulfilled through positive and affirmative action. It is not to be satisfied in a negative way by imprisoning individuals in relationships which have long since died, thereby condemning them to misery and an uncertain future. That is not a foundation for the basic social institution of the family on which our State can comfortably rest.

However much we might regret it, it is a fact that individuals are fallible and relationships, however hard they may be worked at, will sometimes break down. Our society cannot be so uncertain about its own inherent strength that it needs to deny to individuals in such relationships a further chance at married happiness. We surely have greater belief and trust in our own capabilities than this denial would suggest.

The Government's proposal recognises that we are a society and a people with deep attachment to the family. It also recognises that the common good is [1422] not necessarily threatened by allowing persons another chance to remarry, albeit in limited circumstances. It will be a matter for deep reflection by many voters as to whether the type of good fortune they have gained in marriage might be allowed to fall to others less fortunate. No one who forms an intention to marry can ever be said to enter that most important of institutions with anything other than the expectation that the love and happiness which they share at the beginning will endure for a lifetime. Indeed, the fact that so many marriages remain life long unions, notwithstanding the pressures of modern life, is something of which we as a society can be proud.

I believe that we can continue to be confident in ourselves and in our ability to sustain marriage as a valuable and esteemed institution. I also believe that this is a confidence which will allow us in the referendum to respond with compassion and understanding in so far as the plight of so many of our citizens is concerned. I look forward to hearing the views of Members of the House in this important debate. I commend this Bill to the House.

Mrs. McGennis: I welcome the Minister to the House. As I said to the Minister when discussing some of the necessary legislation initiated in and passed by this House, I was among the 63 per cent who voted against the proposal to remove the constitutional ban on divorce in 1986. I made that decision at that time because I believed that divorce would not enhance the quality of life in Ireland and also in the mistaken belief that a prohibition on divorce would protect marriages. This again seems to be the message from the anti-divorce campaign. I was not swayed by the property arguments in 1986 or indeed the inference that divorce would lead to the impoverishment of women. I have a much higher respect for women and I do not accept that any elements in this campaign should use women as subjects or depict them as a gender which cannot defend itself and must be protected.

[1423] Nine years later the people of Ireland are again being asked to decide if they wish to allow people whose marriages have broken down the right to remarry. The Minister made this point in his speech. The Government must emphasise in its information campaign that the issue is essentially to decide whether people whose marriages have broken down should be allowed the right to remarry. As the Minister stated, the Bill does not seek, and I do not know how any legislation could be seen to seek, to damage good, intact and loving marriages.

I now honestly fail to understand how the anti-divorce group can maintain that the introduction of a restrictive divorce regime can threaten sound and loving marriages. I use the word “now” because in 1986 I believed, probably in common with many other people, that the prohibition on divorce would strengthen marriages. As we have seen that certainly is not the case. However, I wish to refer to a section of the Minister's speech where I have seen a positive aspect, even though he pointed out its negative connotations. The Minister mentioned that an 18th century judge expressed the view that:

When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off. They become good husbands and good wives from the necessity of remaining husbands and wives...

The Minister said that this is a coercive statement but there is a positive aspect to it and I believe there is also a positive element to the removal of the prohibition on divorce.

If the prohibition is removed both parties to a marriage will know that unless they work at their marriage, it can end in separation and remarriage. The permission to divorce and remarry, which is viewed negatively in terms of the damage it does to marriage, should [1424] therefore also be seen in a positive light. Both parties to a marriage, particularly an Irish marriage, may feel it is necessary to work harder at that marriage to ensure it survives and does not end in divorce. We should probably take that on board.

In 1986 I believed that the absence of divorce and my vote against divorce would give marriage the protection I sought at that stage. I had been married for nine or ten years and my own parents had separated. I wanted to ensure we did everything possible to strengthen marriages. The reality is that the vote I cast in 1986 did nothing to strengthen, protect or enhance the quality of marriages in Ireland. Sadly, marriages are breaking down in Ireland and the rate of marriage breakdown has risen dramatically since the 1986 referendum. Marital breakdown is a thriving phenomenon in Irish society and every person in both Chambers knows a relative or friend whose marriage has failed.

I had a very open mind on this issue, even when we were in Government. As the Minister said, every party has given a commitment at some stage in the last number of years to hold a referendum on the removal of the constitutional ban on divorce. All of the parties in both Houses have either voted through or agreed legislation which was inevitably moving us towards a constitutional referendum. It is extraordinary that some of the people, notably one person in my own party, who spoke so vociferously against allowing a referendum must have sat in the Houses and voted through legislation which allows couples to separate. To now refuse the democratic right of the people to decide whether they want to go a step further seems not only contradictory but also seems to say that we will allow judges decide whether a person's spouse can leave them but we will not allow that person the democratic right to decide whether, having suffered marital breakdown, he or she will be allowed to remarry.

When I was fortunate enough to be appointed by the Taoiseach to the [1425] Seanad and when part of the programme for Government between Fianna Fáil and the Labour Party gave a firm commitment to holding a referendum, I had not decided whether I favoured removing the ban on divorce. Up to recently I had a very open mind and decided to listen to the arguments on both sides. Some of the arguments put forward have certainly not convinced me that I should vote against divorce and I sought someone who would put the argument which would convince me that this was not in the best interests of my family or, indeed, of any families in Ireland.

I found that some of the anti-divorce activists were inflexible but, more importantly, they were insensitive to people's feelings. I will cite some of the arguments which were made at a Fianna Fáil meeting which I chaired recently in a north Dublin constituency. It was a good meeting. There were two anti-divorce spokespersons and two pro-divorce spokespersons making the case for voting for or against removing the constitutional ban. More importantly, I listened to the comments of the people in the room. One particular speaker not only showed a great insensitivity towards the audience but went on to dismiss the responses of people in the audience who had been hurt by comments, such as those to which the Minister referred. The children of divorced couples were referred to as psychologically damaged. The speaker in question is a parent, as are other speakers whom I have heard speak in the same mode. I suggest the children of people who might be described as fundamentalist are also in danger of being psychologically damaged. When you see a 72 year old Fianna Fáil man stand up and say he was deeply hurt by the suggestion that his grandchildren would be any less citizens because they happen to have come from a situation of marital breakdown, it puts into perspective the reality of failed marriages not only in Ireland but throughout the world.

These are the better cases. The worst cases are marriages which are brutal, [1426] damaging and violent. I do not think this legislation — and I do not think this is legislation as it is only a vehicle to allow the people to decide on legislation — and the case of this Government or, indeed, the previous Government puts the argument on the basis of the hard cases. I do not think that any speaker I have heard in favour of removing the constitutional ban has made their argument on the basis of the bad cases, the brutalised partners and the damaged cases. They have made a rational case for the right to remarry. If anything, maybe that is their downfall. Maybe they need to go for the sound bytes.

Another argument, which I understand but find insulting, is the property issue. It is relevant and equally important to both spouses in a broken marriage and is a basic issue. When you hear somebody describe the right to remarry or divorce in terms of the division of the family farm, which has been accumulated over a number of years and may be taken over the husband's head, I find it insulting. It not only ignores the fact that this can happen anyway but is insulting to the woman, the sons and daughters who have not only contributed but who are responsible for the fact that the family farm is still intact at that point. I have heard again and again that property rights of the husband, in the main, are being called into question and that the contribution of the children and wife are to be ignored completely.

The other argument which will be made, and is being made loudly, involves money. Divorce is a drain on society, the Exchequer and the taxpayer; so if it costs money, the right to remarry should be denied. Anybody would agree that this is not a compassionate response to a problem but it is also an unchristain response. Certainly, Jesus Christ would have taught that if it costs those who have to give to those who have not, then we should refuse it. I find that difficult, particularly in the context of the orientation of the anti-divorce group.

[1427] As somebody who would have come in from a neutral position, I think the pro-divorce campaign's message is being lost because they are not going for the hard hit and are not showing the pictures of the brutalised spouse, normally the wife. They are not making their argument on that basis. I honestly believe they are weary at this stage and are hoping for the best. I do not know whether they have a tremendous amount of fight left in them.

The Minister must highlight again and again that the effect of the passing of this referendum is to allow couples whose marriages have broken down the right to remarry. There seems to be a view — and it was said at the meeting which I chaired and it is being voiced on television and radio — that this piece of legislation will allow my husband to divorce me against my will. That is a great fear for people whose marriages are not in trouble. They feel that if they vote for this piece of legislation and the referendum is carried, they will be divorced against their will. That is not the position and the Minister is going to have to say it again and again.

The position already exists whereby if my spouse can prove in a court of law that we do not have a marriage after what I think is a period of one year, then he can get a legal separation without my consent and permission. Is there any difference between that and divorce? I think there is not. The only point at which it changes is where that spouse goes off to remarry and that may have another traumatic effect on relations.

The Minister and Government must explain to people that the raft of legislation to which he referred, the Judicial Separation and Family Law Reform Act, 1989, the Family Law Bill, 1994, and the Maintenance Act, 1994, which had the support of all the parties in the Houses of the Oireachtas, who either voted them through or did not vote on them, have allowed for the issues which the anti-divorce group are scaremongering about. They already exist. The family property and, indeed, the [1428] family farm can be divided out by a judge in a court. My husband can leave me legally against my will. These things can happen. Deciding to vote “no” will not give the kind of protection which ordinary people, who are frightened about the effects of this legislation, think it will. It no longer applies because we have put all the other pieces of legislation in place.

The anti-divorce group's campaign centres on the effects of marital breakdown again and again. It is these effects which are being discussed by them, but these are being couched in terms of and disguised as the effects of divorce. The Minister referred to this in his speech. The worst part of the trauma, the psychological upset and the hurt of children, happens during the difficult period of marital breakdown.

I know from the experience of a close friend whose marriage broke up over a period of eight years that the child was confused. When the parents eventually separated and went their separate ways, the relationship between both parents and the child was superb and there are no difficulties now. There was a confusion in the child's mind, as would be the case with any child, because the situation in his family home was different to that which might be perceived as the norm. After you get past that stage and if you can get to the stage — and I suppose “civilised” is not the way to describe it — where the hurt and the hate is gone and you can reach the point where you try to work in the best interests of the children, the children also benefit from that.

Professor Anthony Clare made a point at an early stage — and I am probably quoting him out of context — that the Government should only allow a dissolution of marriage to couples whose children have grown up or are over a certain age. I understand the reasoning behind that. In the 1970s when I married the supreme insult was that people stayed together for the sake of the children but that should no longer be perceived as an insulting comment. Some couples whose marriages have [1429] died and lack love do stay together for the children and decide that when their offspring reach a particular age they will separate. The Minister stated in his speech and Fianna Fáil has stated in its document that children should be protected; that is the concern of most people in Irish society. Whatever these Houses do in the future, we should ensure that legislation protects children, not only if the referendum is carried but regardless of that.

Some people who have yet to make up their minds perceive that divorce will be compulsory and the Minister should stress that is not so, although judicial separation without the right to remarry may be compulsory. Both the liberal side of the debate and the anti-divorce group believe the Constitution is the wrong place to put the terms for divorce. That was also my view. I felt the Government was wrong and we would be revisited by the problems surrounding the abortion referendum. That may yet happen but it is being done because the anti-divorce group would say that, as the terms for divorce were not in the Constitution and the Bill had not been published, the Government and the Minister would introduce a liberal divorce regime with quick divorces easily available.

I still have misgivings about the wording of the amendment; it would have been better to have asked the people whether the constitutional ban on divorce should be deleted. It sends a sad message to Members of the Oireachtas because it suggests we are not to be trusted to draft, bring forward and pass legislation to reflect the views of the public. That is wrong; the so-called “liberal agenda” which has been passed by both Houses reflects the people's views.

I also reject the suggestion that the 40 per cent against divorce are not represented in these Houses. I imagine at least 40 per cent of Members of both Houses may vote against divorce but they are democrats and so far all but one Member agrees that we should put a referendum before the people to allow [1430] them decide whether to remove the constitutional ban. That is the essence of democracy. I wonder how a Member from any party could decide to vote against a Bill providing for a referendum, the purest form of democracy, which allows people to decide the outcome. To abstain or vote against is to refuse to allow the people to decide and it is anti-democratic.

The media are concentrating hugely on the anti-divorce campaign, whose message is being put forward loudly and clearly, although the media do not always support it. The pro-divorce campaign had its day in 1986; it received huge media coverage then but its message is not coming across at present, nor is the Government's. However, although the pro-divorce lobby hogged the limelight in 1986, the result went against it. When the referendum campaign is over and the votes are cast, I think we will see a similar pattern in that the result will favour the pro-divorce lobby. The final outcome will be close so people who have strong feelings on either side should clarify the issues for those who have not made up their minds so that misrepresentations do not happen and scaremongering and uncompassionate views are not allowed to persist.

It is wrong to suggest the Catholic Church should withdraw from the argument and neither the Government nor any party in the Oireachtas suggests that. The Church has a moral right to make its views known and so far it has made its case in a rational manner. Perhaps it is relying on the lay groups to make the other part of the case. The criticism of the Catholic Church now, which is similar to that levelled at it and at my party in 1986, may be unfounded and unwarranted on this occasion.

I have no hesitation in commending this Bill to the House and to the people.

Mr. Neville: I, too, welcome the Minister and compliment him for bringing the legislation before us. I congratulate the current and previous Governments for putting in place adequate back-up [1431] legislation in the family law and social welfare areas which will ensure that any concerns about the implementation of divorce are removed from the agenda. I hope the debate throughout the country will be conducted in a calm, unemotional, caring and compassionate way.

It is regrettable that the level of marriage breakdown has escalated over the last ten years but we must recognise this is a fact of late 20th century Irish life. Everything possible must be done to support marriage and assist those in difficulties. We must not sit in judgment on those whose marriages have irretrievably broken down; we must try to ease the pain and make children central in our approach. We must deal with such traumatic life problems in a caring and compassionate way. We purport to be such a society and our Constitution and laws must reflect this.

We must be clear about what this Bill proposes, which is that where a marriage has broken down for a period of four years, the parties should have a right to remarry. This right is the only issue dealt with in the Bill; all other areas of legislation dealing with marriage breakdown have been covered by legislation on judicial separation. If the referendum is passed it will be possible to obtain a divorce if, but only if, parties have lived apart for four of the preceding five years and there is no reasonable prospect of reconciliation. Before granting a divorce the court must be satisfied that provision has been made for the spouses and children. The referendum is concerned with the right to remarry if a marriage has irretrievably broken down and the spouses have been effectively separated for a long period of time.

It is cruel and unjust to permit people to separate and deny them the opportunity to remarry. There are thousands of people in Ireland who have been separated from their spouses for many years and who have entered into second unions, very often with children. These people are denied the right to remarry [1432] under present law even though they have been living as man and wife for many years. In order to provide people with maximum assurance, it is necessary that the terms on which divorce is granted cannot be changed without their consent. I share Senator McGennis' views on this issue. I believe that a minimalist approach is required but I recognise the difficulties experienced by the Minister and the Government on this issue. The proposal guards against any risk of a divorce culture developing in Ireland. The wording is simple and has been kept to a minimum. There are ten fewer words than in the 1986 referendum.

Statistics from the UK and the United States, in particular, have been quoted with regard to levels of divorce. When predicting the likely future divorce rate in Ireland it is best to examine experiences in countries such as Spain and Italy which have similar social structures to our own. We might also consider Northern Ireland which has the lowest divorce rate in the United Kingdom. Divorce was first introduced to Spain which, like Ireland, has a large Catholic population, in 1981. There has only been a gradual increase in the number of divorce applications there during the past decade. That increase is proportionately less than the increase in marital breakdown in Ireland during the same period. Italy, which is similar to Ireland in having a predominantly Catholic, rural population and conservative political culture, has one of the lowest divorce rates in the world. Only one out of every 11 marriages in Italy ends in divorce.

It bears repeating that an Irish court will only be permitted to grant a divorce where it is satisfied that the spouses have been living apart for four of the preceding five years and there is no reasonable prospect for a reconciliation. Under present law, it is possible that one spouse might be separated from the other against his or her will. Similarly, it is possible that a divorce might be obtained against the wishes of one party. However, it is important to [1433] remember that the court will not grant a divorce if there is any prospect for a reconciliation. The court must also ensure that proper provision is made for the spouse and any children. The granting of a divorce will simply be a recognition of the current social reality. The divorced spouse will have all the same financial and property protection as separated spouses.

Research indicates that marriage breakdown can damage some children. However, there is no evidence that children of divorced parents do any better, or worse, than children whose parents are separated. When a marriage breaks down under present law, matters such as custody, visiting rights and arrangements for the education of the children are often agreed between the parents. In such cases the courts will not normally disturb that agreement, provided it adequately provides for and protects the welfare of the children. If there is a dispute about these matters the court will decide how it may be resolved. Under Irish law, the paramount consideration is the welfare of the children. These arrangements will continue after the introduction of divorce.

There is no evidence that the availability of divorce leads people to take their marriage obligations less seriously. People are free to separate under present law if they so choose. Many people who separate subsequently enter into second unions and very often have children within those unions. Many would argue that it is far preferable for society that these people be allowed to marry than being forced to live within a legally anomalous situation.

The family is the rock upon which Irish society is founded. Divorce is not, as has been suggested, anti-family. All that divorce legislation does is to allow people to remarry. The issue is one of marriage breakdown and whether governments can act to reduce the rate of marriage breakdown. I welcome the fact that the Government is taking a number of immediate steps which are intended to protect the family. A sum of £750,000 has been provided for marriage [1434] counselling organisations in the current year. A further £300,000 will be provided for family mediation services. The budget for the Legal Aid Board has been dramatically increased, which will facilitate the processing of cases in the area of family law.

The rights of both parents and their children are taken into account under existing separation legislation. Senator McGennis raised the issue of property and the family farm during her contribution. Under existing separation law, the courts can make an order with regard to property, such as the family farm. Divorce will not change this in any respect. The law correctly ensures that adequate provision is made for spouses and children in cases of marital breakdown and will not discriminate between divorced and non-divorced, separated persons in this respect.

There is evidence that some fathers lose contact with their children following a marriage breakdown. In practice, the problem usually arises because fathers do not wish to make adequate and continued provision for their children and also because their spouses create difficulty in their maintaining ongoing contact with, or access to, the children. The courts are being given the powers to ensure that fathers — and mothers, in cases where they are the financial providers — will meet their financial obligations. Provision is made for them to be involved in the children's upbringing, if they so wish. Where a dispute arises relating to parental involvement with the children, the courts must give priority to the welfare of the children.

The majority of children of divorced families are as normal as the majority of children of intact families. The major factors which affect a child's adjustment following marital breakdown include conflict or co-operation between parents. The more conflict that exists after marriage breakdown, the more stress on those involved; the more co-operation the less stress. Ongoing parental conflict, rather than separation or divorce, is linked to problems among children in [1435] intact and separated families. A conflict-laden relationship between parents has very serious consequences for a child's wellbeing. Constant conflict, rows and physical violence severely damage a child's physical and mental health. This is manifested in behavioural problems on the part of the child. Parents who remain in such marriages do continuous damage to their children, much more than parents who, under such circumstances, separate or divorce.

Children undergo stress during the separation or divorce, but it is much less than the continuous agony of being involved in a miserable family where mental and physical violence exist on an ongoing basis. The child's stress has been shown to decrease during the first year after divorce. It is important that parents separating and divorcing have a child-centred approach afterwards. Mediation services must ensure that parents understand the impact of conflict on their children. The arrangements must ensure that there is proper parental involvement with the children. The Government's position on mediation in the divorce procedure will facilitate this.

The Government is also proposing a no-fault divorce to ensure that the divorce process is child-centred. Members should be aware of the conflict which a fault-based divorce, if introduced, would create between parents and the effects it would have on the children. It would be horrendous. It would be impossible for a child centred mediation service to involve itself in such a process. Accusations and counter accusations would be hurled across the divorce court and the person who shouted loudest and hurled the most dirt would succeed. What would this do to the children? How could proper arrangements, which need co-operation, understanding and communication, operate with such conflict?

It is difficult to understand statements that no-fault based divorce is less acceptable than fault based divorce [1436] which say at the same time that the effects on the child must be of prime concern. Potential stress affects the quality of the parenting role. Therefore, the divorce process must endeavour to reduce the level of stress for the parents, especially for the custodial parent.

It is important that custody and visiting patterns preserve the relationship between both parents and the child. Legislation in the family law area introduced by the Minister enables courts to provide more involvement by both parents in the child's development. A fault based divorce would destroy any opportunity for such co-operation. In one study nine out of ten parents reported that their approach and understanding of each other improved in the year after divorce. They achieved an amicable relationship with each other and had a civilised businesslike relationship which benefited both child and parents.

The debate is taking place against a background in which 75,000 marriages have ended; 2,300 people are dependent on deserted wife's benefit or single parent's allowance; where the incidence of domestic violence is increasing at an alarming rate; the number of children born outside of marriage is increasing rapidly and the number of couples cohabiting outside of marriage is increasing. These are distressing and distasteful facts. We do not have a perfect society. In a perfect society there would be no need for judicial separation and divorce. Divorce is not a welcome development but a necessary regulatory development.

The Constitution must deal with realities of life, not what we wish society to be. One of the realities is that people whose marriages have ended wish to remarry. Can we deny them a second chance? In many cases they are living the essence of a marriage but their union does not have legal status. Ignoring these relationships does not mean they will go away.

Those who have the blessing of a happy marriage cannot fully understand the sense of disappointment, hurt and failure of those whose marriages fail. If [1437] a couple is incompatible it does not mean the individuals might not be compatible with others. Where there is intolerable physical or psychological violence against one of the spouses it does not mean the suffering partner cannot have happiness elsewhere. Must we continue to allow one chance only or are we to be compassionate, caring and understanding, and, within the rules of the Constitution, allow people to enter into a second, happy and fulfilling union?

Dr. Henry: I welcome the introduction of this Bill. Earlier this morning we talked about the Seanad sending its congratulations to Séamus Heaney on being made a Nobel Laureate in Literature. It reminded me of a conversation he had with David Hanly in an interview on “Morning Ireland” last week. In the course of the interview Mr. Hanly and Mr. Heaney discussed our changing society and Mr. Heaney's views on it. In his usual eloquent way Mr. Heaney said that we in this country had felt we were in “a warm communal hug”, but that society was changing and we would have to address and cope with those changes.

The idea of a warm communal hug described the best in Irish society, but for those who were outside its embrace life has been hard and we have begun to recognise their woes only recently. Part of our national pride has been in a sort of moral superiority making it much easier to pretend there was nobody outside the hug. They had to exist without a helping hand to aid them with their problems.

In recent years we have begun to realise more that we, like all societies, have our own social problems and we have begun to take some notice of them. The legislation we are to put into place will help deal with some of the sad facts members of society have to face about marriage breakdown. I fully support the Minister's proposal. Those who, having had a failed marriage, are optimistic enough to try again should have the legal right to do so.

[1438] Once married most people stay married. I have been married for 29 years and I find it distinctly unflattering to be told the only reason I am still married is because there is no divorce. Ten years ago those opposed to the introduction of divorce said there would be a great increase in the level of marriage breakdown if the right to remarry was allowed. As Senators have pointed out, without that right there has been a great increase in the numbers claiming deserted wife's allowance — it has almost doubled from 9,500 to 16,500 between 1985 and this year. There are many separated couples who live apart and have made private arrangements regarding finance. There are some women who do not claim deserted wife's allowance or maintenance because their marriages hurt them so much they prefer to be as distant as possible from their spouse.

Whatever the cause of marital breakdown in this country it cannot be said to be the presence or absence of divorce. Most people make great efforts to keep their marriages intact, particularly, as Senator McGennis said, if they have children. A growing number of couples are less prepared to endure a marriage they feel has failed.

This week the ESRI published a study on marital breakdown and family law in Ireland by Tony Fahey and Maureen Lyons. They deduced a legally registered marriage breakdown rate of 0.95 per thousand of population which compares with a divorce rate of between 0.06 and 0.12 in countries with low divorce rates in southern Europe, for example, and 2.2 and 4.7 for high divorce rate countries in northern Europe and the US. These figures show that without divorce our level of marriage breakdown is much the same as countries which have a low divorce rate.

There are many reasons why marriages fail — desertion, violence, infidelity, non-consummation and non-compatibility. Unemployment and alcoholism are also important factors. We have talked about marriages that have failed and what can be done about [1439] those that are failing. However, we need to do an enormous amount of research into why marriages fail in this country because every society has different reasons and social norms as to why marriages fail. We lack data in that regard because we have pretended for so long the problem did not exist.

How important is violence in the failure of marriages in this country? Domestic violence is one of our most secret and hidden problems. It has been recognised only recently. A pilot study on the identification and treatment of women admitted to an accident and emergency department as a result of assault by spouses or partners carried out jointly by Women's Aid and the St. James' Hospital accident and emergency centre in 1993 makes horrific reading. Some women delayed as long as ten days before attending hospital with fractures inflicted by spouses or partners. Weapons such as knives, knuckledusters, hammers, iron bars and broken windows were used. Many of them had a long history of physical abuse and were reluctant to attend for treatment from shame or embarrassment or, more often, because of threats of further physical abuse. Some were pregnant and were often beaten and kicked in the abdomen.

Another recent study on the extent of domestic violence carried out in the Rotunda showed that pregnancy was no protection from violence. This is not a new phenomenon because I remember a heavily pregnant woman telling me a long time ago that her arm had been broken because her husband lay on it when they were asleep. I did not see a 17 stone husband beside this small woman. Excuses were made long ago and domestic violence is not a new phenomenon in this country.

Women are very vulnerable in violent situations. One of the more disturbing aspects of the report from St. James' Hospital was that many women left the emergency and accident department early to go home because they were fearful of what was happening to their [1440] children who were also being physically abused.

In these circumstances it is very difficult to see how a marriage can be sustained and why so many women try to get barring orders. This was another feature of the Fahey and Lyons report. In 1993-94 almost 4,500 barring orders were sought and almost half were granted. However, when the year's barring order is over the woman has to start again.

It appears that violence outnumbers all other causes of marital breakdown in this country by about two to one. These women want their spouses permanently excluded from the home. Thankfully, not all men are like that and if the woman wishes to remarry at a later stage it is hard to see how she could be denied some form of a normal marital life. It is suggested that those men who continue to be violent will cohabit with another woman. However, whether married or not, such men are likely to be violent and women would be well advised to avoid them.

Lack of maintenance, either from a present or absent spouse, is another serious cause of marital breakdown, as is the effect of unemployment. Many men desert when they are on welfare and pursuing them through the courts may cost the State more than it will gain. The last time I brought up this topic the Minister, Deputy Taylor, told me that it is not possible to get blood out of a stone.

Another factor we need to look at is why the rate of marriage is declining so rapidly. It has almost halved in one generation, despite our youthful population. There is very little social stigma attached to people living together nowadays and an increasing number of children are born to non-marital unions. However, surely, there is some onus on society to do all we can to ensure that citizens can live within the law and encourage that.

Over the past ten years, as other speakers have said, all Governments have set up structures and legislation to help those whose marriages fail and the [1441] children of such unions. It has been suggested that children are in no way disadvantaged now if their parents are unmarried. This is not strictly true because guardianship provisions differ. Also, while the social norms of some countries term this quite acceptable, we have quite a conservative attitude in this country and it is probably easier for children, psychologically, to know that they are within what is described as a legal union within the State. It is rather depressing to hear, as one young woman said to me: “Why bother to have this referendum as no one minds what anyone does nowadays”.

It is interesting that those who oppose the introduction of this amendment do not see that, psychologically, the effect of an annulment of a marriage might be more traumatic for children than a divorce. If an annulment takes place it says that the marriage never existed, whereas if there is a divorce the children know that the marriage existed but failed. I cannot understand the logic which says that annulment is less traumatic for children than divorce.

We should all be as tolerant as possible of each other's views in this debate. but some astonishing things have been said. One was at a meeting on divorce held in Thurles, County Tipperary, which was reported in The Irish Times on 30 September, where a well known person in the area said that “Divorce is of no advantage to anyone except randy men with loads of money”. His source of information is not mentioned, but almost 80 per cent of petitions in other jurisdictions are filed by women. The ESRI report just published stated that in this country 75 per cent of those who initiated judicial separation orders were women and a further 7 per cent were joint applications.

One of the most serious criticisms of those who oppose the amendment to the Constitution is their use of doubtful sociological arguments. All surveys and experiments in the social sciences are much more difficult to interpret with accuracy than those in the field of the [1442] natural sciences. Without doubt, those involved — adults and children — are affected by marital breakdown. However, it is very difficult to say whether the impact is by the discord in the marriage before it broke down or because of the break up itself. I am indebted to Dr. Sheila Greene of the Department of Psychology in Trinity College, Dublin, for helping me to study these reports. However, to be honest, I think they can be interpreted in whatever way one wants to look at them.

I strongly object to the vision of all women as being discarded by erring husbands. Many women actively seek to rid themselves of their spouses, as the figures I quoted earlier indicate. While there is great grief and trauma, it is amazing how so many manage to rebuild their lives, often being far more fulfilled as individuals than they were in marriages where they were denigrated or abused. Dr. Marese Cheasty and Professor Anthony Clare recently presented a paper on the serious effects social problems have on women's health in Ireland, particularly depression. They found that marital problems were reported as present in 58 per cent of cases of women with depression, compared with 7 per cent of women from a matched control group.

According to a study in Scotland, which was reported in The Irish Times on 28 August, children in step families are seven times more likely to be victims of child sex abuse. Incest is a very private and vile crime and we know that child sexual abuse is most easily carried out by those in a position of trust with easy access to children. In looking at studies on child sexual abuse in the past, I have been cautioned by those who work in this field to remember that delayed reporting is very common in some groups, and fathers fall into that category. There are cases in today's newspaper of delayed reporting of incest and this goes on all the time. It is much easier for a child to report the transgressions of a stepfather than of a natural father — perhaps she is Daddy's little girl and there has been no violence [1443] in the rape or sexual assault of the child. We should be very careful in our interpretation of statistics in this area.

Many other assertions were made in that article about the adverse effects on children if their parents remarry. It would be far better for those who grew up in what Séamus Heaney describes as the “warm, communal hug” to see how we could help the children of broken marriages rather than stigmatising them further.

Health dangers, which is more my field, were also pointed out in the article. It stated that divorced people are prone to eating and sleeping disorders and experience a great sense of loss, stress, anger and pain. I am sure they do — it would be far more worrying if they did not, as the breakdown of a marriage is a very serious business.

Marriage is very good for a man's health. The 1992 UK statistics for death rates within marriage are very interesting because, without a shadow of a doubt, most men would be well advised to get a wife and be nice to her. The nicer they are, the longer they stay married and the longer they are likely to live.

Mr. Sherlock: And vice versa.

Mrs. McGennis: That is a doctor's prescription.

Dr. Henry: What is interesting is that although divorced men die at a younger age than married men, so do single and widowed men. In view of this, men would be well advised to find a nice wife and be nice to her. Married women also do well nowadays. They live longer. There is very little difference in the death rates between married and single women, but years ago single women did better because of the hazard of childbirth. However, with the great decline in maternal mortality, the position is now almost equal between the two categories.

The decline in maternal mortality has been due more to women who are at [1444] high risk in pregnancies not getting pregnant than to any great interventions from my own profession. It is interesting to see that many of those who are opposed to this amendment are the same people who, 20 years ago, were opposed to the introduction of contraception. My message from all of this is that divorce is not good for one's health, nor is being single. What is required is to get a nice wife and be nice to her.

I looked up the other Oireachtas debates on divorce and I am sure many Members have read the speech made here in June 1925 by another Nobel laureate, Dr. Yeats, when he pointed out that the introduction of a law barring divorce would create difficulties in attempting to reunite the country. It is a most eloquent speech, as one would expect from a Nobel Laureate in Literature. I will not quote from it, apart from the words he used when he told the legislators that they “...would put a wedge in the midst of this nation...” He urged the House to remember that the committee which was established to draw up the Constitution of the Free State had refused, despite pressure, to incorporate the indissolubility of marriage into the Constitution. Legislation was subsequently enacted to this effect. The speech by Dr. Yeats is splendid and we should bear his remarks in mind.

In the debate on the Constitution in Dáil Éireann in June 1937, several Deputies — of whom my father's cousin, Dr. Rowlette, was one — argued against including a constitutional ban on divorce or even on the remarriage of those divorced outside the State. All the Christian Churches preach on the indissolubility of marriage. Indeed, most of the Protestant Churches do not allow for annulment. It has been suggested that if the other Churches allowed for annulment this would solve the problem. However, they are not in favour of it, the main reason being that once one is married within these churches, they are only willing to countenance civil divorce. During this debate, Dr. Rowlette pointed out that what was being done was making those who willingly submit [1445] to the discipline of one Church, entitled to enforce their will on others who were not.

This referendum should be passed for our own sake, but it would be disingenuous to pretend that what we do will go unnoticed in Northern Ireland. Strait-laced as they may be, they believe in the separation of civil and church law in this case. It is also important to remember that in the Downing Street Declaration, we promised to remove obstacles to reconciliation here — I am a member of the committee in the Forum for Peace and Reconciliation which is looking at this matter — and this is one of those obstacles.

I agree with the Minister and those who have spoken that the way we are proceeding in having what has been described as a no-fault debate is the best. There are those of us who are old enough to remember the appalling cases we used to read about in England, with attempts to get evidence, often under false pretences, for divorce cases. That is most undesirable.

With regard to the four to five year delay in granting a divorce, which it is proposed should be written into the Constitution, I believe, like many others, that it would be better if legislation provided for this. However, there are many things in the Constitution that I wish to see looked at in a new light. If this effort will satisfy people that it will prevent quickie divorces, which would be unacceptable to everybody in the country, then so be it. I commend the Minister for what he is trying to do and hope the referendum is carried.

Ms Gallagher: By the end of the day, we will have heard many of the same points made repeatedly. I have already listened to many valuable points. The debate about divorce in Ireland is very emotive. When one mentions divorce, people have a rush of feeling. They think of marital breakdown, religion, poverty, injustice, the slippery slope to moral decline, property rights, the suffering of children and second chances. You name it, it is in there.

[1446] Many of these matters are perceived in some way to be connected to divorce, but they are no more connected to divorce than they would be to unemployment, lone parents or other issues. When many people talk of divorce they put on their blinkers and close themselves against the issues raised. Some reply that they are against divorce, as if that automatically places them on a moral pedestal. Others might quickly reply that they are all for it, in a way that would give the impression that they would be in favour of any proposal put before them.

I often wonder how many people have properly examined the divorce issue. Do they really know what divorce means? Is their decision based on personal experience and/or fact or is it made from ignorance? Even worse, is it based on misleading information and scaremongering? This is something I fear and resent.

I feel strongly about people's rights generally. These days people are very attuned to their rights. They demand them in many spheres of life, and rightly so, but with those rights come responsibilities. The Constitution has given every voter the right to have his or her say on the subject, but this imposes a responsibility also. The voter's responsibility is to inform himself or herself fully on the issue, to take off the blinkers and examine the real issue, the facts. It is for us as politicians to help them do this. The Government's leaflet to every household is, therefore, vital in explaining both the legal and social impact of divorce. I hope our debate today will also clarify many issues for people and help them focus on what divorce really means.

Rather than regurgitate what has been said by previous speakers, it may be more helpful to look at the subject from another angle by tackling and addressing the points raised by the anti-divorce lobby generally, because they are all worthy of note and consideration. I have heard people on local radio ask who are these politicians, and who gave them the right to bring divorce [1447] before us again? They say that we voted on it in 1986 and it should be left at that. They appear to resent the fact that the issue is being brought before them at all, that decent Irish people are having the issue shoved down their throats by these immoral politicians.

However, we are only doing what is expected of us. As elected representatives, we are putting the matter before the people, which is what we are here to do. We are elected to legislate for matters concerning the running of the State. The fact that many thousands of people want divorce and that marital breakdown is a reality makes it incumbent upon us as politicians to tackle this issue.

It should also be made clear that we are simply putting forward legislation to facilitate the issue being put before the people themselves, for them to decide on. What could be fairer than that? The recent polls have vindicated our collective work in this regard. They show that a majority in all political parties support divorce. We are, therefore, not leading the people on this issue, but following them.

The anti-divorce lobby often alleges that divorce would destroy family life; we have heard this repeatedly in various forms and guises. This all embracing statement is grossly misleading. Divorce will not and does not destroy family life. Marital breakdown does, and this is happening. In 1993 over 75,000 people described themselves officially as separated. These people have suffered from a less than happy family life and we must, therefore, offer them some options for their future.

As for family life, to be honest, I believe that it has taken a battering in recent decades and this has nothing to do with divorce. Television has brought many changes in recent decades. The opening of the world, the fact that we now have everything brought into our living rooms and the fact that we could for many years watch “Dallas” and the Californian lifestyles have opened up a wider horizon for people who did not [1448] otherwise have that opportunity of experience previously. Society has changed, regardless of what we as individuals or Irish people can do about it, because we live in an international world that is moving whether we want to go with it or not.

When one is talking about family life, divorce is neither here nor there. Family life is what we make of it. It is what the family members decide to do in their own company within the four walls of their home — whether they want to talk or not, the problems of making ends meet, their worries about unemployment, their children's' safety and their future. The stresses and pressures of life today unfortunately ruin family life for many people. Again, divorce has nothing to do with that. The statement that divorce will destroy family life makes one almighty big assumption — that life within families is blissfully happy and a bed of roses. Unfortunately, many people have not had that experience, for many reasons. Poverty, unemployment, alcoholism, drugs, incest, child abuse, violence and fear are among the reasons why so many people cannot smile and glow with happiness when walking in their front doors.

The second big statement from the anti-divorce lobby blandly states that children suffer from divorce. They do. Children undergo much trauma — as said by Senator Henry — in seeing their parents making this final step, but they suffer more from the initial break-up of that marriage and seeing their parents argue and quarrel for years. There are two sides to this. The children of those who have separated have already come to terms with or faced the fact that their parents, whom they love equally, have decided to separate. Children put into a situation where they see one parent at the weekend and the other parent during the week — or whatever the arrangement may be — have already suffered. The fact that their parents then take the final step towards divorce does not entail any additional suffering. In many cases it can put the final stamp, [1449] seal and resolve on the issue and allow the family to get on with their own lives.

There are those who have not separated — the families that live behind closed doors and seem to think it more important to put forward a good appearance within their own communities, where everything seems to be OK to the public outside and yet those children witness the daily rows, the violence and all that goes with that. How can a child benefit from the absence of divorce? He cannot. Children can only benefit from happy homes with happy parents, but life is not always that easy. In this case statistics have been unable to back up the arguments of the anti-divorce lobby on this issue. I was lucky — I was a happy child — and because I was not affected by poor life does not mean that I would not reach out to help those who are. That is important for people who have cosily decided to vote against divorce. They have the happy experience of a happy family and they say “tough” to those who do not.

A third reason offered by those against divorce is that marriage is a lifelong commitment. There is no guarantee about that anywhere for anybody. This argument seems to take the approach: “You have made your bed, lie in it”. Let us look at all those people who walk up the aisle, the picture of “Love is .....”. They genuinely love each other at that time. They want their marriages to work. Life's concerns then take over and they get caught up in the routine of work or the lack of it, children, financial strains, mortgages, making ends meet, and the routine that goes with that, and it can ruin a marriage. I am not speaking from experience but I have, as a politician and a solicitor, come across many people who will always say that they were happy at the start of their marriages. But life is not always so easy for these people and it brings many problems for many people that cannot be foreseen.

When talking about a lifelong commitment, does that mean that, regardless of what happens, people are meant to stick in there, turn the other cheek, [1450] suffer and allow their children to suffer? Does our society really want that? After all, the Catholic Church itself says that some marriages are not lifelong or meant to be: it allows annulments. That is something that must be addressed, because they allow people who have married validly to get out of marriage. It is allowed on a technicality, because in this day and age those who get annulments get them because they have good contacts, a lot of money and it is their way out. In many ways the Church is hypocritical on this issue, because it tells people it is a lifelong commitment and yet, within its own dogma and doctrine, allows people out of that same lifelong commitment. This argument ignores reality. The fact that many thousands of people are saying that they have had enough, are getting out and are leading separate lives must be addressed. Our laws must recognise that and deal with it in all fairness.

Many Irish people will say “no” to divorce because they are Catholic and Catholic teaching says that divorce is morally wrong. Coming from a rural constituency and having a background that is very Catholic in essence, I feel this is a difficult decision for people to make. Unlike many countries, we as a State do not have a clear or proper separation of Church and State. People genuinely find it hard to distinguish the fact that Governments make laws and religion teaches morality. They fear that, in giving in to divorce by making that sudden change in the polling booth and voting “yes”, they are somehow letting the side down and being less religious than they ought to be. I understand their concerns and it is important, therefore, to address them and make the following points.

Not all people in this State are Catholic and it is not proper that we should legislate for one religion only. While other religions may not like divorce or may not actually support it or favour it, they do allow the individual conscience to decide. The law should ensure that this separation of Church and State exists. It makes me laugh at times to [1451] think that Catholics, if divorce is available, feel they are automatically obliged to run and get a divorce. If one is a good Catholic, one will say that his or her marriage is for life, wants to follow his or her religion and are sticking with the situation. Nobody is going to force them to do otherwise. It is down to the individual conscience and it is that person who must decide. The fact that the law is on the Statute Book is neither here nor there for the good Catholic. After all, our religion, if it is worth anything, should allow us to offer some sympathy and compassion to those who are less fortunate than ourselves. It is important in teaching any religion that we learn to live with each other, tolerate, accept and recognise that, while we are all right, maybe some other person needs help. Our laws should cater for that, as should our religion.

Many people will also say that they are against divorce because they feel that a greater effort should be made with marriage; that people are jumping into marriage too quickly and then jumping out of marriage too quickly. It is possible that a greater effort should be made with marriage. Many people, having gone through a breakdown would look back and say that they were never compatible and should never have married, but one learns with hindsight and does not know that at the time. People marry with the best of intentions and maybe our society should do more to support marriages as we have them. People enter marriage thinking it is a rose garden and that they are going to live happily ever after. The reality is that no matter to whom one is married, one is going to have problems and no matter whether one is married or not one is going to have those same problems. That is life and we should accept it and not get out so quickly when the going gets rough.

That being said, the Government and the Legislature have done their bit in supporting marriage. It is important to point that out to people who are afraid of it. We have raised to 18 the age at [1452] which people can get married and we have imposed a statutory notice period of three months. We have also put money into services that offer reconciliation and support for existing marriages. These are all very important facts. However, some marriages will fail, for varying reasons, despite all the efforts on both sides. In the long run that has very little to do with divorce which, after all, is simply a legal process which occurs long after a marriage has failed.

Another argument used against divorce is that it could be an easy option and, as such, would be open to abuse. I cannot see how that could ever be the case. First of all, as it is in our Constitution it is up to the people to decide and there is no greater democratic process than that. The people are being asked to decide that a couple whose marriage is a sham and has not existed for those four years of separation, can begin the legal process of obtaining a divorce which could possibly take another two years. Before a couple separates they have gone through hell anyway, for many years in some cases. It is all over at that stage before they ever leave the family home.

I am speaking from experience, having dealt with many women in this situation. I recently got a phone call to visit the house of a mother who called me in desperation having heard me on the radio. She did not know me from Adam but she said I sounded as if I had sympathy for her situation. I found the woman lying overdosed on the floor with her small children crying around her. That woman was married and had stuck with the relationship for 21 years, but I could not even talk her into going to see a solicitor to deal with the problem. People like that woman suffer so much humiliation over so many years. She was a battered wife and was bruised from head to to, yet such people are expected to wait four years before they can get out.

In all fairness and compassion, this proposal requires four years of separation before one can seek a divorce and surely that is long enough. It is not an [1453] easy option. It is a very sad and difficult situation for people who eventually reach the stage where divorce is their final option. It is like the final chapter of a long book on a breakdown which has already happened. It is the last step.

Where marriage and divorce already exist, it can be argued that people in difficult marriages will work that bit harder at it because they know that the other spouse can get out. It may help marriages by keeping individual partners on their toes.

I do not believe that what is proposed by the Government is open to abuse as an easy option. The constitutional element of the amendment ensures that people will always have their say if the time scale is to be changed again. People should be happy with that because it is an option and an entitlement that people do not have in many other countries which depend totally upon the legislature for the detail of divorce provisions.

It is also argued that divorce somehow creates poverty because there is not enough money to support the second family. That argument is being used a lot by people in the anti-divorce lobby even though it is neither fair nor representative of the whole story. We all know separated couples because it is so common nowadays. When a couple has separated, the partners on both sides eventually — not always but often — set up a new relationship. In so doing they regain some happiness, comfort and support and start a second family. The money has to be divided between them from the breadwinner whoever that may be, and the parents must always accept responsibility for their children of whatever marriage. I firmly support that.

The fact is, however, that society does not seem to accept that partners of unmarried mothers have responsibilities too, yet nobody is making a big fuss about them. Nobody is saying that we should chase such people and make sure they support their children, which the unfortunate unmarried mothers are, literally, left holding.

[1454] There is a certain amount of hypocrisy in the situation because the two family situation has already started with legal separations or separations without any recourse to law. In that sense divorce does not introduce an extra element of cost or poverty, so it is a false and misleading argument for people to use.

The argument about how divorce affects women has been made before. It strikes a chord with many women, especially older ones, who have given up their jobs and so depend completely on their husbands for support. Such women are aware that they have rights as the law stands. The law protects them and ensures that the house cannot be sold without their consent. It also ensures that they have rights following the death of their spouse.

Some of the comments about this which I have heard are very unfair. One such comment was made by a well known professor in the anti-divorce lobby who, speaking on my local radio station, told women that the first wife in a divorce scenario would lose her husband's pension rights. He did not, however, go on to say that the first wife — and the only wife in a separation scenario — could and did lose those rights in the past because the law did not protect her.

It is thanks to the Minister, Deputy Taylor, and the Family Law Act we passed recently, that pension rights can now be dealt with fairly and squarely. Pensions can no longer be used as a stowaway for well off men who want to put their money aside and make sure that their unfortunate, dependent spouses cannot get their hands on it. That measure allows separating couples — and will subsequently allow divorced couples — to divide the spoils fairly. That point should have been made on the radio programme.

It would help if the Minister could highlight what has been done to legally protect women's entitlements. Ignorance of the law, basic fear and a dependency culture will force many women to go out and blandly vote “no” to divorce [1455] because they feel it is the safer option for them, just in case. We have to take that consideration into account. The facts speak for themselves. If divorce affects women it seems strange and ironic that it should be women who mostly apply for divorce. Statistics bear that out. In many ways that argument is futile and grossly misleading.

Property is always used as an argument against the introduction of divorce. I have to laugh, however, at the people who raise that as an issue because they obviously could not care less about their spouses and families. If their only reason for being against divorce is the potential loss and division of property, then I would not like to have such a person as my spouse.

The law has dealt with that issue in the past few years. Property rights are now enshrined in law under the Judicial Separation and Family Law Reform Act, 1989. When a couple separate, unfortunate as that may be, they know the law is there to deal with how the property should be divided. In many cases it favours the women in a marriage because if they bear the responsibility of raising children they invariably get the family home. That is a sore point for many men, but the reality is that property laws are there to deal with the matter as fairly as possible. When a marriage has ended the property will be divided anyway — that is life — so it should not be an issue in the divorce referendum.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Mr. Lanigan: The majority of people would prefer if this debate did not take place. However, divorce is a complex issue and it is important to give it a fair airing. This referendum will give the people the chance to decide if they want to introduce divorce into this country. Ten or 15 years ago 99 per cent of people would not have wanted divorce in this country. However, circumstances have changed in Ireland as they have [1456] elsewhere. Marriages have broken down and people's attitudes to marriage have changed. There are as many stable unions between people who are not married or who are separated as there are between people who are married.

Those involved in local government have seen the changes in the type of applicants for local authority houses. Over the years 85 per cent of applicants were married couples, while 15 per cent were single people who had been married but were widowed. However, that balance has changed dramatically. Some 65 per cent of people who apply for housing to the local authority or to a body which is supported by the State are not married to their original spouse, are not married but have children, or are separated. A number of these people are in stable second relationships, while a number will not look for divorce.

Divorce is a middle and upper income phenomenon. People who do not have property are not interested in divorce. There has been no discussion on the morality of marriage, divorce and stable relationships. Some 90 per cent of the arguments against divorce relate to property, but property has nothing to do with marriage, its dissolution or with remarriage.

Society has changed. There is a decrease in the number of people getting married in Ireland because young people realise that they should not get involved in marriage unless they believe it will last for life. This has nothing to do with the Church or the law. Many people are now cohabiting. Young people are not being given the credit for what they are doing. Their attitudes to marriage are more serious than those of people ten, 15 or 20 years ago. No one can say that they do not know anyone whose marriage has broken up or who has not experienced the difficulties and problems associated with such a break-up.

There has been too much focus on the problems which women face in the dissolution of a marriage and not enough on the problems which men face. Two [1457] people who live together experience many stresses and strains. However, no one has discussed the problems faced by men in a difficult marriage. Many men want to make the marriage work, but they cannot do so because the female has problems. We should concentrate on the two sides of the argument when we discuss the break-up of a marriage or any union and not only on the battered wife syndrome. Sometimes it is not politically correct to talk about the fact that men are as harassed in a marriage as women are.

The Church has lost its grip on teaching people about the sacred aspect of marriage. The State is attempting to follow a trend by concentrating on the practical problems. We are trying to legislate for marriage break-up. People will say that the State should not be involved. However, it must be involved because of the social aspect of marriage which must be addressed and which is not always monetary related. Fifteen or 20 years ago, I knew nobody who would go into a church to a wedding with their new partner and meet their former spouse and new partner in the same church, but this is happening today. The State does not have to reflect society, but it has to legislate for what is happening in society and we have to make certain that we do not exclude people by not reflecting the de facto situation in society.

I did not read the draft Bill that may come before us because it is a draft Bill and there may be changes to it, but unfortunately some people are using the draft Bill as if it were already in its final form. We are talking about a very simple matter here. Should we give the people of Ireland the right to decide for themselves whether or not they should have divorce? In arguing this point, people are leaking what might be in the Bill which would be presented if the referendum goes through. The draft Bill is complex and it takes into account very many things, but here we are debating a very simple issue. I totally support the concept of giving the people the right to choose. If this referendum goes through [1458] and if I do not agree with the Bill, I might hold a different view.

I do not like some of the language that has been used on both sides of this campaign because, even though they are not as extreme as the arguments that were being used in the run up to the last referendum, we have to be careful that each side of the argument is presented in a cohesive way. This is not to suggest that I am correct in wanting to give the people this right, but if somebody else comes up with an argument to suggest that the people should not be given the right, they should be given the right to put their argument without any animosity and let the people decide in the end.

I do not like the suggestion that we are pandering to the wishes of a small non-Catholic minority in this country. I do not see any great lobby from the non-Catholic community in Ireland either in favour of divorce or against it. There are as many stable marriages non-Catholic marriages as there are stable Catholic marriages. People seem to think that if you are not a Christian, you are not in favour of a stable relationship. People think that if you do not have any religion at all that you are not in favour of a stable relationship. That is not true. People of all religions and none enter stable relationships and stay in them. There are others whose marriages or relationships fail and we have to deal with those relationships.

It is suggested that young people want divorce. There are as many young people in this country against divorce as there in favour of it. There are as many people on one side of the argument as there are on the other in every sector of society and this is borne out by of the 60:40 ratio we are hearing about. The final result may be 60:40 or 55:45 one way or the other. There is no great difference between the attitudes of younger people and those of older people on this issue.

Younger people have a better grasp of the meaning of permanence. They have a better grasp of what relationships mean. They enter their relationships [1459] from the point of view not of what the catechism or the law tells them, but because they want to enter these relationships and they realise that society is in certain ways against the continuing of the relationship. That is why a huge number of young people will enter relationships without going to the civil or religious authorities to formalise them. The relationship may break down before it is formalised, but if they do decide to get married there is a better chance of permanency than if they do so without knowing what the implications are, what their relationship is like, where their differences of opinions are and what the personal habits of their partner might or might not be.

The State has put a lot of support in place over the last number of years for families who have broken up, and this is correct. There would be no difference in the status of somebody in the family farm situation after divorce than there would be at present. Divorce will not make any great difference to what would happen in that area.

When we discuss the dissolubility or indissolubility of marriage, unfortunately the Church's teaching is not being listened to because of other problems which have arisen within the Church and I am not happy with this. The weight given to what is said from the altar to explain morality according to the tenets of the various Churches has diminished recently because of certain happenings and certain failings of members of the Church. We should not throw out the Church because there are people within the Church who have problems and whose problems have created major problems for many other people.

Everybody who decides to get married wants to get married for life, but unfortunately that is not possible for some people. People change after they enter relationships. Suddenly they find themselves in a binding contract out of which they cannot get, so they live a lie. They live in relationships which are [1460] untenable and believe their children are better off if they stay together. Children realise early on if there is a problem in a house. In many cases a separation or a divorce might be better for the children. There is no point bringing in the monetary aspect of this, which has been brought in too often, particularly when land is mentioned.

The latest argument concerns pensions. When I started work a person looked for a job which was permanent and pensionable. A person did not care whether they got £10, £5 or £4 per week less than in an other job — they took it if it was pensionable and permanent. The permanent and pensionable aspects of employment have changed dramatically and so too has the situation as regards marriage.

It is an insult to people who are non-Catholic to suggest that we are pandering to them by bringing in divorce. The majority of non-Catholics are as supportive of marriage as Catholics — in fact, they are probably more supportive. I do not believe society will change dramatically if divorce is introduced. Obviously, there will be changes and certain people will get married knowing they can get out of it. Many young people were forced into marriage in the past because of a pregnancy or a social attitude in an area. Many were forced to get married by parents, relations and the Church. These marriages were false from the start, but the Church would not annul them. It would only annul a marriage if a person could pay. There is no doubt that the majority who have had their marriages annulled by the Church could afford to pay. I would prefer the dignity of divorce rather than the nonsense which the Church perpetrates on people — the suggestion that they were never married. There are children who are sons and daughters of parents whose marriage was annulled. The Church has said that their parents were never married and that it was never consummated. These people are the issue of marriages which have not been consummated. The Church has always had divorce. I do not believe society will [1461] change if we bring in divorce, nor will there be an increase in the number of people going to the altar to take vows and deciding after their reception and honeymoon whether the marriage will work out. That is not how things happen.

If a relationship in a house is broken, children suffer more if parents stay together for their sake. Children grow up very quickly and they will not thank parents who stay together for their sakes. A child's life is short and they soon become adolescents and then adults. I do not believe parents stay together during the period before adolescence or through adulthood.

A commissioner for children has been mentioned. Who will address the curriculum vitae of the commissioner for children who will be responsible for highlighting to parents the needs of children in marriage breakdown and divorce? If parents or other people in the community cannot decide on the needs of children, who will decide on the qualifications of a commissioner for children? It is nonsense and is not operable. It is also stated that it would be helpful if parents had to go through an information session on the short term and long term effects on the children of marital breakdown. This should not take place after marriage, but before. I remember when certain parishes decided that a person had to give three, four or six months' notice of marriage. It started in my diocese at six months but was then reduced to three, which is the norm. In those days if a parent wanted their daughter to get married quickly, the six month notice was discarded because she would have had the child before the waiting period was up.

We cannot legislate for human relationships, but we must ensure some redress if they break down. If somebody wants to get into a second relationship, there should be a legal means to do so without hassle or a taint of immorality. If the Church says a person cannot remarry but the State allows it, they have a choice to make between their affinity to the State or the Church. If a [1462] person decides to remarry, it is up to them to decide on what their attitude will be to the Church and how it will deal with that. If a person gets the chance to remarry, the State should allow it without consultation with the Church.

For many years people have had to sign the civil register after getting married. After the church ceremony the couple signed a marriage contract by signing the civil register, but it was treated as if it did not matter and it gave the cameramen time to get their cameras ready.

People should have the right to decide whether to allow remarriage. The people will make the decision after a reasonable debate in which all the points are articulated. At the end of the day the best expertise in the world will not resolve human problems. Marriage breakdown and the enormous trauma experienced in the ending of any human relationship will continue whether divorce is introduced or not. People have the right to decide whether they want legislation to introduce divorce and I support the Bill on that basis.

Mr. Sherlock: I wish to share my time with Senator Doyle.

An Cathaoirleach: Is that agreed? Agreed.

Mr. Sherlock: In proposing the constitutional amendment which will be put before the Irish people on 24 November, the Government of which my party, Democratic Left, is a part is attempting to throw open the shutters on the reality of marital breakdown. The amendment, if passed, will enable an estimated 75,000 separated people to finally end their marriages. It will enable those who wish to remarry and it will enable those in second unions to regularise their situations and that of their families.

Up to now, as with so many other social issues, we have simply exported the problem. The fact that there is a constitutional ban on divorce does not [1463] mean that there are no divorced persons in Ireland. Divorces obtained abroad are not uncommon but they can be extremely expensive and do not safeguard the social welfare and other entitlements of the individuals concerned in Ireland.

One may ban divorce but one cannot ban marriage breakdown. It is estimated that up to 75,000 people are currently living apart from their spouses, many of them for a considerable period of time. The unpalatable reality is that the number of marriage breakdowns is increasing at an unprecedented rate and yet, as in so many areas of society, constitutional reform has lagged behind social change. In 1993 there were just 15,000 marriages. But in the same year there were 3,000 applications for barring orders and 1,000 separation applications. That means that a minimum of 4,000 marriages had broken down in that year alone, many of them irrevocably. The official figures do not include the unknown numbers who simply go their own ways without recourse to the courts.

I believe that many on the anti-divorce side hanker for a past which can never return and which probably never existed. Social nostalgia is understandable but it ignores modern reality. Governments cannot prevent marriages breaking up but they can support families in an effort to ensure that the social and economic foundations for stable, long-lasting relationships are in place. Poverty, unemployment, bad housing and no housing are all factors which can militate against families and they are all factors which this Government is determined to address, not just in the interest of families but in the interest of society as a whole.

At the end of the day people must make their own decisions and after due consideration some reach the painful decision to separate. Governments cannot influence individuals in the direction either of separation or reconciliation. However, Governments can help alleviate some of the practical difficulties [1464] which accompany marriage breakdown. We can ensure that individuals' financial entitlements are protected, as was done in the Social Welfare (No. 2) Bill, and we can ensure that children — the most vulnerable members of any family — are protected to the best of our ability as was done in the Family Law Bill. The legislative framework now in place ensures that no individual receiving social welfare benefits will be worse off as a result of divorce.

As well as ensuring that divorce will not entail unnecessary financial hardship, we can ensure that families are supported and nurtured to the best of our ability and I hope that the commission on the family, which my colleague, Deputy De Rossa, the Minister for Social Welfare, is in the process of establishing, will achieve that goal. No one will be financially worse off as a result of a “yes” vote on 24 November. However, thousands of individuals will be enabled to draw a line of finality under a failed marriage and get on with the rest of their lives. Those who wish to do so will be enabled to remarry. That is essentially what this referendum is about — indeed, that is what it is all about.

Many of the concerns surrounding divorce relate to effects on families and I have no doubt that those concerns are in the main sincerely held. Our society is built on the family and this Government is determined that family structures will be protected, maintained and strengthened. However, there is no evidence that the absence of divorce has of itself strengthened families. Indeed, it would be a sad reflection on the state of Irish families if the only glue holding them together was a constitutional prohibition on divorce.

Due in part to the absence of divorce in this jurisdiction we have recently witnessed an increase in the number of extralegal family units. These families are not recognised by the tax or social welfare codes nor do they enjoy equal access to financial and other services. The absence of divorce has created a growing tier of second class families. In [1465] practice the constitutional ban on divorce has militated against another constitutional provision, that is, the injunction on the State to protect the family.

We all agree that the most vulnerable members of any family are the children. However, it is marital breakdown rather than divorce which can harm children. The effects of parental strife and insecurity on children are well documented and have been used as arguments against divorce. It is regrettable that children and their welfare have become pawns in the arguments advanced against divorce. Let us make it quite clear that divorce of itself is not somehow anti-child. There is no doubt that children suffer greatly in the event of marital breakdown. They suffer from the circumstances that cause marital breakdown and they suffer from the unremitting strife which accompanies it. They suffer from the insecurity of a marriage in permanent crisis and they suffer from the lack of communication caused by marital breakdown. There is no evidence to show that they suffer from divorce itself, the final resolution of marital breakdown.

In framing the constitutional amendment the Government was conscious of the need to address the needs of children and to ensure that separation and divorce are dealt with sympathetically and in a way which, as far as possible, avoids acrimony. It is not only the separating partners who must be allowed to get on with the rest of their lives. Children too deserve the chance to continue their lives free of the strife and insecurity which is a hallmark of marital breakdown.

Those who wish us to continue in the never-never land of the 1937 Constitution argue that the introduction of divorce will encourage marital breakdown. The availability of the remedy, or so we are told, will encourage the spread of the disease. I find that view both baffling and offensive. I do not believe that the mere presence of divorce legislation will prompt contented couples to seek a dissolution any more than the absence of such legislation has [1466] prevented troubled marriages from breaking down.

There is no evidence that the introduction of divorce will increase the rate of marital breakdown. Indeed, marital breakdown rates in the republic and in Northern Ireland — the most culturally and socially comparable jurisdiction — are similar, despite the fact that divorce has been available in Northern Ireland for some considerable time. The mere availability of divorce will not cause people to separate but it will enable those who have separated, or who currently find themselves trapped in an intolerable marital situation, to regularise their position.

When framing the amendment to be put before the people on 24 November, the Government was conscious of the need to avoid the pitfalls into which other jurisdictions have fallen when legislating for divorce while still providing an effective and accessible remedy for those whose marriages have broken down.

The provision that a divorce may be granted to individuals who have been living apart for four out of the previous five years is a sensitive one which recognises the reality of marital breakdown. It will enable those who have tried a short period of reconciliation during the past five years to obtain divorce and will also cater for those who, for financial or other reasons, have been forced to share the same accommodation while living apart in all other respects.

Marriage breakdown is a reality in Irish society and I believe that on 24 November the Irish people will recognise that reality and will vote to accept the amendment put before them.

Mr. Doyle: I wish to make a brief statement in relation to the proposed legislation before the House. Indeed, I spoke in support of this issue before the referendum in 1986 and my views have not changed since then.

First, as a practising Catholic, I am committed to the permanency of marriage. As a politician, I wish to state that publicly and to endeavour to bring as [1467] many people with me as possible. In saying that, I believe I speak for the majority of the people in the State.

The majority of the people are happily married. It is best for society and the family that we have permanency in marriage. Unfortunately, there are a number of people in society who, for one reason or another, do not adhere to that ideal. Sometimes they are living in first or second relationships and the offspring of these unions have no protection whatsoever under the law. I believe that if this is allowed to continue, it weakens the very concept of the permanency of marriage which I uphold. It is my believe that the State has an obligation to give an opportunity to the public in order that a civil remedy can be found to regularise these situations.

The Irish people understand the principle of no fault divorce which has swept across north America and western Europe. In some jurisdictions there is almost divorce on demand. The Irish people are not prepared to accept that kind of legislation but they are prepared to accept a limited form of divorce. The legislation which we are putting before the people is very limited to the extent that one must be separated for four years and that if it has to be changed at a future date, it cannot be changed without the consent of the people.

In the near future the Irish people will have an opportunity to vote on this matter. I want to refer to people who are happily married, because if this referendum is to succeed it will not succeed with the votes of those who are unhappily married, separated or in second or third relationships. It will only succeed with the votes of people who are happily married. They must ask themselves have they the generosity to give to others a relief which they do not require themselves. I hope that on 24 November the generosity of the Irish people will not be found wanting.

Mr. Dardis: I welcome the Minister of State, Deputy O'Sullivan, to the House.

[1468] Tairgim leasú 1:

Go scriosfar na focail go léir i ndiaidh “Go” agus go gcuirfear an méid seo a leanas ina n-ionad:

“ndéanann Seanad Éireann

(i) ós eol di mian iliomad daoine an Bunreacht a leasú tríd an gcosc iomlán ar an gcolscaradh a aisghairm, agus

(ii) ós í a tuairim go mbeadh sé neamhiomchuí coinníollacha mionchruinne sonracha chun colscaradh a thabhairt a chur isteach sa Bhunreacht,

diúltú anois an Bille a léamh an Dara hUair.”.

I move amendment No. 1:

To delete all words after “That” and substitute the following:

“Seanad Éireann

(i) conscious of the desire of many people to amend the Constitution by repealing the absolute ban on divorce, and

(ii) being of the opinion that it would be inappropriate to insert in the Constitution detailed and specific conditions for the granting of divorce,

declines now to read the Bill a Second Time.”.

My party, the Progressive Democrats, supports divorce. We have done so since our foundation and our position on it is consistent. We do so out of a belief, which I know is shared by many Members of all parties in each House of the Oireachtas, that we should not require people to live in misery, that the breakdown of marriage is a characteristic of modern society which cannot be ignored and should be treated with understanding and compassion and because we believe the State must respect the views of those who do not share the denominational view of the majority within the State. They are [1469] ideas which lie at the heart of the concept of what a republic is all about.

I endorse my party's view but I also believe, and I would believe this even if I were never a Progressive Democrat, that the way in which the Government proposes to deal with this matter is defective. This happens to be my party's view also. By writing detail of this nature into the Constitution, a matter which should be the subject of legislation rather than the Constitution, we are storing up problems. I believe that profoundly to the extent that I would have to seriously consider whether to vote “no” when the question is put in the referendum, even though I support the idea of divorce. There is every possibility that the same sort of catastrophe will be visited upon us as occurred due to the flawed 1983 so-called “pro-life” amendment except that in this particular case there is even more potential for court proceedings and having cases adjudicated by the Supreme Court. At the end of the day, the main beneficiaries will be the people in the Law Library rather than those who are suffering the pain and trauma of broken marriages.

There is also a very central question involved here, one which I am sure will be one of those which will become the subject of court proceedings. It is the contradiction which exists between the wording of the 15th amendment which is before us and several existing articles of the Constitution. Specifically, Article 41.1 of the Constitution states:

1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

[1470] Article 41.3, the article which contains the prohibition on divorce, states

1. The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

What are we to take from that? We will have positions which are fundamentally contradictory within the Constitution, the courts will be asked to decide which of them takes precedence and we will be faced with a difficult decision. As a solution to this particular problem, I would support the proposition which was put forward by Deputy O'Malley when he spoke on this matter in the Dáil. He suggested it could be dealt with by way of an amendment which would state that “Notwithstanding any provision of this Constitution,...” a court designated by law may grant a dissolution of marriage where it is satisfied that the conditions prescribed by law are complied with. The important phase in this particular context is “Notwithstanding any provision”. Otherwise, it seems to me — and I am not a lawyer — that we have provisions which are contradictory and of equal standing within the Constitution and I do not know which one of them can take precedence. I think that, again, is a recipe for disaster. It strikes me also that the Government in its collective wisdom asked itself how it would obtain a “yes” vote on the divorce referendum and adjusted the wording so that it was palatable. That is a poor and timid way to proceed and demonstrates a lack of confidence in the people. I would prefer the question to be put fairly and that we would then abide by the wishes of the people as expressed in the referendum.

We also diminish ourselves as a Legislature by trying to write social legislation into our Constitution. We should have enough confidence in ourselves as an institution ultimately answerable to the people, to make the constitutional amendment simple and to do the rest of the work through legislation. Why do [1471] we not have the courage to ask a simple question and accept the verdict?

This leads to the broader question of the value and relevance of the Constitution to modern society. There have been several reviews of the Constitution, one of which was produced by my party, and there are reasonable grounds for saying the entire document, which was drafted from a social ethos of the time, needs to be examined and overhauled. A document as fundamental as the Constitution should not reflect a particular social or denominational ethos. It should be like the US Constitution, which has survived for 200 years by stating the broad principles for the order of society under which we should live, rather than going into detail. Further, if legislation is defective or society moves on and it is decreed that matters of this nature need to be changed, it is easy to do so through legislation but extremely complicated to do it through the Constitution. These are my reasons for opposing the way the Government is proceeding on the matter.

As to the wording, I can see the potential for someone to apply to the court to define what living “apart from one another for a period of... at least four years during the previous five years” means. Several sections of that phrase could be subject to challenge and the court will be asked to adjudicate on them. It could also be asked to define “no reasonable prospect of a reconciliation”.

I am apprehensive about where this amendment may lead us. While I believe divorce is a fundamental civil right this is not the way to introduce it. My party and I are not alone in that belief; the Church of Ireland feels it is inappropriate to deal with complex social legislation within the Constitution, as does the lawyers' divorce campaign. The Minister said the majority of the people wish to deal with this matter in the way suggested by the Government but not all the opinion polls have shown that and I am interested to know [1472] on what that statement is based. In one opinion poll the single largest group favoured dealing with the matter through legislation and simple constitutional amendment.

The lawyers' divorce campaign also highlighted court delay. The Minister dealt with the matter at some length in both Houses but the campaign's submission states it might take eight years to secure a divorce. It currently takes two years to obtain a judicial separation; such people will then have to wait a further four years before applying for a divorce, which could take two years to come to court. That is a total of eight years at present levels of delay.

Vague assurances have been given about this matter, one of which was in the closing speech on Second Stage in the Dáil. It is interesting that the Government Information Service did not deign to say which Minister closed the debate; it states he replied in the absence of his colleague, the Minister for Equality and Law Reform, Deputy Taylor, but it does not say who did so. One would have thought it a fundamental exercise in public relations to include the name of the Minister involved.

This Minister stated that to speak about long periods such as six or eight years implies little faith in the determination of this Government to effect a speedy reduction in these waiting lists. To my certain recollection every Government has committed itself to speedy reductions in waiting lists but I do not see them getting any shorter. While we welcome the Government's determination we will withhold judgment on it until we see specific evidence that the commitment is being met. Extra judges are being appointed to the District Court and Circuit Court, which is welcome, but that will not shorten the queue to prevent delays for people trying to sort out the matter through the courts.

I support the concept of divorce but to suggest that opposing the way the matter is being handled in the amendment will lead to “quickie” divorces is wide of the mark. I also oppose [1473] “quickie” divorces but that matter can be handled more effectively through legislation than through the Constitution. It is a tragedy that people should have to seek divorces. No one enters marriage or seeks a divorce lightly and it is wrong to suggest otherwise. Even people involved in helping marriages through the Catholic Church, in bodies such as the Catholic Marriage Advisory Council, would agree there are cases where there is no way forward and the only solution in the interests of the couple and the children is divorce. That does not imply that one is in favour of “quickie” divorces in any circumstances.

Public representatives know from our constituencies the degree of marriage breakdown in society. In some housing estates it is difficult to know who is living with whom or, in some cases, from what union the children have derived. I do not defend such things but they are realities and we must accept them, legislate for them and amend the Constitution to take account of them.

There is a presumption that rural Ireland is different from urban Ireland and these problems do not exist there but they occur equally in both areas. There is an additional trauma in rural areas in that such problems are hidden for social reasons, for appearances, etc. I can say with absolute certainty that people are living apart under the same roof in rural Ireland because they will not seek divorce. To all intents and purposes these people are living apart. The statistics which the Minister presented — they are part of the labour force survey — are quite compelling, particularly the figure of 75,400 people whose marriages have broken down.

Suggestions have been made that civilisation as we know it will collapse with the introduction of divorce. The ESRI figures, published earlier this week in the booklet written by Fahey and Lyons, make very disturbing and interesting reading. One of the figures which struck me from their analysis was [1474] that 0.95 from every 1,000 legally registered marriages in this country break down. That is on the basis of the existing legislation. The figure for countries in southern Europe with low divorce rates is between 0.6 and 1.2, while in northern European countries and the USA, which have high divorce rates, it is between 2.2 and 4.7. When those figures are considered, it is reasonable to state our society is not much different from other societies in Europe.

Disturbing figures are also given which show a kind of two-tier approach to solving marital problems. The Minister will correct me if I am wrong, but close to 4,500 barring orders were sought from the District Court in the year 1993/1994, whereas 2,806 applications were made, under the Judicial Separation and Family Law Reform Act, to the Circuit Court. It seems that one stratum of society has adopted a particular approach while another stratum has adopted a different one. I do not believe that anyone enters a relationship, which they hope will be a lifelong one, very lightly. People give due consideration to their commitments before they marry and in those circumstances they will give due consideration before the marriage breaks down.

The effect of divorce on the children has been referred to by those opposed to divorce. I believe that the effect on the children is far more damaging in circumstances where a couple are continually fighting and shouting at each other rather than in circumstances where they are living apart. There is evidence which supports that point of view. The State has a responsibility to try to assist people to pursue happiness. We should assist people who wish to remarry because if this leads to their happiness then the State should be supportive of it. I support divorce but I do not believe that it is being dealt with in the most effective way.

I was very taken by remarks made by Sister Margaret MacCurtain, a Dominican nun, in support of divorce on Gay Byrne's radio show this morning. She spoke about forgiveness, which is central [1475] to the Christian message. This is something we should not forget. I was educated by the Dominicans myself which is why, perhaps, I find myself in agreement with her.

In moving the amendment before the House I do not intend to go through the same procedure that occurred in the Dáil whereby a division was sought and Members were obliged to pass through the lobbies. The outcome of that would be quite predictable. It is apparent, from the Dáil division, that Fianna Fáil support the Government. A very small number would support the amendment in this House and I do not believe it would be a beneficial to challenge a division. It is evident that the Government has support for this legislation and we would merely achieve the same verdict arrived at in the Dáil. I am aware that certain Independent Senators would be prepared to test the matter by division and I thank them for that. However, I do not believe it necessary to proceed with the charade of passing through the lobbies to voice our disapproval of the legislation before the House.

An Leas-Chathaoirleach: Is the amendment being seconded?

Professor Lee: I second the amendment as a procedural courtesy and reserve my right to speak later.

An Leas-Chathaoirleach: The amendment is being seconded by Senator Lee.

Mr. Ross: I would like to share time with my friend and colleague in coalition, Senator Magner.

An Leas-Chathaoirleach: Is that agreed? Agreed.

Mr. Magner: Absolutely. It is agreed.

Mr. Roche: I thought Senator Ross was talking to me.

Mr. Ross: I ask Senator Magner, as a favour, not to interrupt me for the first [1476] time since this House sat, as a reciprocal gesture. Otherwise I presume I can withdraw that particular favour also.

Mr. Dardis: The House has to agree to it.

Mr. Ross: I thank Senator Dardis, who put down this amendment, for not forcing Members to pass through the lobbies to show whether they are for or against it. I, and I am sure other Members, would find it extremely difficult to vote against the amendment. The more Senator Dardis spoke, the more I agreed with what he had to say.

I speak as a Member of the Government parties. However, I must speak honestly and say that I feel this piece of legislation is among the worst placed before this House by the Government since it came to power. On the back benches of the Seanad we are used to voting for particular pieces of legislation and amendments of which we do not approve. Hypocrisy is part of the nature of government and is certainly part of the nature of backbench politics.

This legislation is possibly one of the worst pieces of cowardice I have come across since last December. I feel great disappointment because, whatever other flaws it has, I had come to believe that this particular coalition could be trusted on this one issue. I suppose I believed too much in the ability of the Labour Party to kick the other parties in Government around. I believed that, with a Minister who has a great reputation for reform in charge, this would be radical legislation and the nettle of divorce would be grasped, once and for all. It seems that this legislation could not have been worse had it been introduced by the Labour Party and Fianna Fáil had they remained in office a year ago. It would not have been any worse than this because it could not have been any worse.

I cannot understand why the Government suddenly decided to introduce this type of legislation to deal with divorce. I suspect that there are two very simple reasons. First, the Government took [1477] fright at the results of an opinion in May or June. The second reason, which is worse, is that the Government decided that the legislation could not be passed without the support of Fianna Fáil. In both cases this is a terrible indictment of an administration in power. If there is one thing expected of a Government which came to power on the basis of idealism, ideological commitment, reform and honesty, it is to go down fighting on an issue of this sort rather than to fudge it. Everybody in the Cabinet, the Labour Party, Fianna Fáil, Fine Gael is aware that this is a fudge. This is funking the issue of divorce.

When the Minister replies to this debate I would be interested, not to hear the statistics which have been thrown at us for many years and are interpreted differently by different people, but to hear what influenced him, late in the day, to put this legislation into the Constitution.

Why could he not simply propose to delete the Article that prohibits divorce? If it was of a fear of defeat, it is a bad reason; if it was a fear of Fianna Fáil, that is even worse. I suspect it is a combination of the two and that is not an honourable decision by the Government. It is insulting not only to the Legislature but to the people because it suggests they cannot make such a progressive decision.

Nobody knows what the result of this referendum will be nor what the result would have been if it had been put in the more simple form of removing the ban from the Constitution. I suggest the results would be similar because, as the Minister says, all the necessary legislation has been put in place over the years and, in real terms, the right to remarry is probably not as important an issue as some of the legislation that has been put in place. We will never know the answer to that; we will only know the answer to the proposed referendum at the end of November.

This is a short term decision to get the Government over an immediate problem, and it will probably succeed. However, it will create problems, of [1478] which it has been aware, for many years to come. Let there be no doubt that divorce will not be tackled in any form in the Constitution for many years to come if this measure is passed. This will be written in stone in order to save the skin of the present Government so that it will not be seen to have been defeated. It does not really matter how difficult it will be for subsequent Administrations; because this matter is in the Constitution it will not be amended for many years to come. The Minister knows that as well as anyone else.

Let us consider the referendum on abortion held over ten years ago. It was an unholy mess to insert that into the Constitution and everybody knows it. This Government, which is, after all, committed to tackle the substantive issue of abortion, has allowed the issue to disappear to the bottom of the legislative timetable. I gather the legislative timetable was announced today; it was sent to TDs although I do not think Senators received it. I doubt if the issue of abortion which lies in limbo is on that list. It has been buried because it is too difficult to tackle and another X case will just embarrass us in front of the world. This legislation is building up an identical problem. It will not be a problem for this Minister or this Government but it will present a series of insoluble problems for subsequent Governments.

I would not mind so much if we had not been promised again last week that we are to have another constitutional referendum next year. I gather it is a priority for the Government to give seats in this House based on emigrants' votes rather than tackle the issue of abortion or other constitutional matters. The Government considers it more important that people from Australia, the UK and the US should hold the balance of power in this House; it considers it more important to pass that absurd provision than to tackle realistically and honestly issues such as divorce and abortion.

This legislation is camouflage and cotton wool. It will becomes us to vote it [1479] through. When I see unanimity in this House I get suspicious. The Minister and Senators know that more people will vote for this Bill who do not believe in it than will vote for most other Bills they do not believe in. As a result there is a bigger fudge than ever. Everybody will vote for this Bill, yet as the Minister knows there is a large body of opinion which disapproves of it. There is nobody to represent that body of opinion, not on the side I represent, which considers that there should be fewer obstructions to divorce, but on the other side. Yet everybody has huddled into the middle to pretend these people do not exist because they want the issue to go away. The issue will be buried in the Constitution and the people will be told they have their safeguards.

The people framing this legislation do not care how difficult this legislation will make life for future generations. Let me reiterate the examples illustrated by Senator Dardis. This amendment contains more than 100 words and every single word of this amendment can and will be disputed in a court of law. The Minister has already said that living apart means living together and living together means living apart. Perhaps he is right, but he cannot say how a judge in a court will interpret it. He can tell us what he thinks it means but judges have different views on what words mean; they have different political and moral views and they have different views of divorce. It is a racing certainty that “living apart” will be interpreted differently by different members of the Judiciary. Thankfully, we cannot tie the hands of the Judiciary in the years to come by putting the provisions in the Constitution or in legislation.

What this House may decide constitutes an “irretrievable marriage” will be a different matter when the issue comes to court. The Government knows it cannot bind the hands of the court. One man's irretrievable marriage is another man's retrievable marriage: some judges will say the marriage has broken down for good, others will say it has not and [1480] will send people off to try again. That will contribute to what Senator Dardis rightly referred to as undue delay. I did not realise the possibility of an eight year delay was already being debated. I am not a lawyer and I do not believe in lawyers because I think lawyers disagree about everything. The Minister is a lawyer and has authority on that matter but I am sure he will find lawyers to contradict him.

Mr. Dardis: Disagreement is an industry.

Mr. Ross: Exactly; that sort of disagreement is a profitable industry. However, a delay of eight years, as demonstrated by Senator Dardis, could obviously extend for much longer depending on the Judiciary. There is no limit set on how long a particular contested court case can take, especially as it may have constitutional implications.

This is a disastrous Bill. It is legislation which in the years to come will come back to haunt us because it is written in stone in order to give short term comfort to the present Government.

Mr. Magner: I thank Senator Ross for sharing his time with me but disagree with almost everything he said. In another life he has a very keen analytical brain but when he comes in here he seems to take leave of his senses quite often. He is an advocate of the school which led to the Charge of the Light Brigade — he believes in a glorious defeat. Coming from the Labour Party, which made that into a religion until about ten years ago, I can tell him that that does not help anybody and will not help those who require this legislation. It is nonsense to proceed on the basis that one is likely to be defeated. In this House, as elsewhere, those who practise the profession of politics practise the art of the possible.

Given the results of the last referendum on this issue, to ignore the views expressed by the main Opposition party, which represents thousands of people in this State, would not just be stupid but [1481] would be a very negligent way to approach this delicate issue. Before Senator Ross spoke, I said that so far it had been a very calm and reasonable discussion. It is still calm but how reasonable it is can be judged by some of the comments made by Senator Ross.

This country sometimes takes leave of its senses when dealing with issues which are quasi religious. Does anyone remember the debate on the availability of condoms? I learned today that one of the then Members of this House refused to pick up the Order Paper because it contained the word “condom” when that issue was first introduced by President Robinson when she was a Senator. There was a ridiculous debate about where condoms would be sold, if they would be hidden away in Fort Knox style shops with special cabinets and if the chemist would have the key. They were not to be displayed and it was suggested that a doctor's prescription should be required. The whole debate was daft and it was discussed here as if it was a deadly serious matter and the House was saving the country from all sorts of fornication. The reality is that although chemists' counters are now full of condoms nobody pays any attention to them.

Mr. Dardis: Mr. Haughey did not put an Article in the Constitution about it.

Mr. Magner: I am not here to answer for Mr. Haughey, who is happily retired. It will be in the Constitution because people do not trust the Oireachtas, for which we are to blame in many ways. The reality is that when we discuss matters of a quasi religious nature, rational debate sometimes goes out the window. I am glad that on this occasion Fianna Fáil, the Progressive Democrats, the Independents, Fine Gael — despite Senator Ross — the Labour Party and Democratic Left all, notwithstanding the reservation expressed by the Progressive Democrats, support this legislation. That all party support is a very important step towards resolving the crisis in relation to broken marriages.

[1482] The care and attention taken by the Minister for Equality and Law Reform, Deputy Taylor, in approaching this issue, putting legislation in place step by step, can only reassure people that at all times their welfare in all respects — property, children and so on — has been taken care of. On that basis, they can be reassured that their rights as individuals and groups are more than adequately protected.

The campaign has yet to get fully underway. I hope that the standard of argument until polling day will respect people's views and integrity. I deplore the racist attack made on my colleague, Deputy Taylor, in my city of Cork, where comments were made on the Minister's religion. It was disgraceful and demeaned the person who made the comment, which the audience in Cork made quite clear. I have had many discussions with Des Hanafin, whom I respect. I totally disagree with his views but I respect them. He and I would agree that there is no room in this debate for such gutter politics on any side. I do not attribute the remarks made in Cork to the anti divorce side. I apologise to the Minister, as a Corkman, that he was subjected to that and I believe that former Senator Hanafin would join me in that.

The referendum campaign will show that the fears expressed in the previous campaign were valid. There was not a body of law in place to protect families in the event of divorce and the Government of the day had to take responsibility for that very serious lapse. However, the situation has been totally transformed and the Minister has enumerated and explained on many occasions the body of legislation which is now in place.

When people seek information they should try to obtain it from an accurate source. Local radio will play a much bigger role in this campaign than door to door canvassing and so on. Local radio is a very powerful medium but it can be also very instant, with “expert” panels and listeners' telephone calls. On many occasions these “spontaneous” calls [1483] from listeners are very well structured by either the station itself or by lobby groups. They can be a very dubious source of information, because in many cases accuracy does not seem to be part of the brief. I strongly suggest that if people are worried about any aspect of this legislation, or the implications of some of the legislation which has been passed, they should check it at the source. The Department of Equality and Law Reform and local representatives are available to respond to those queries, and if people seek factual information they will get it. A booklet is being circulated to all households and it is incumbent on everybody to read its contents.

I was very impressed by Senator Doyle's contribution. He said that he was a strong, practising Catholic who is very happily married and believes in marriage. He said, however, that this legislation cannot be passed by separated people or those in broken or unhappy marriages but must be passed by many thousands of extremely happily married people. He believes that, like him, those thousands of happily married people will show generosity to those who were less fortunate in the marital stakes and vote accordingly to give a civil remedy to marriages which are irretrievably broken down. Senator Sherlock remarked that one can legislate against divorce but one cannot legislate against broken marriages. This is a fact of life.

The people in their wisdom will take the view that this legislation is carefully crafted to take account of the unique ethos of this island and to ensure that any suggestion of rapid divorces or Nevada style arrangements have no place in Irish law. The Minister has also taken enormous care to put together a body of law, especially of family law, and a range of services — there are civil legal aid and counselling services all over the country — to ensure that if a marriage gets into trouble the State can assist in trying to repair the damage or prevent the deterioration of a relationship. [1484] However, the State also has an obligation to accept what sometimes is inevitable, that is, that a marriage may end. It is now obliged to give the people a remedy and they will vote accordingly.

Senator Ross spoke of glorious defeat. There are men and women of 70,000 families looking to this House and to the Minister for a remedy during their lifetime. Glorious defeats may be very well for an academic exercise or as a point to make in some university historical debate between students but it is of no use to real people, real men, real women and real children, facing real problems.

I commend the Bill to the House. I am happy, despite what Senator Ross says, to have the support not only of our colleagues in Government but of the main Opposition party and the other parties. I congratulate the Minister on the Bill and hope to see it enacted.

Mr. Roche: This is not a denominational issue. In the course of the last few contributions it appeared to be discussed as if it were; it is not. It has to do with the Constitution, the fundamental and basic law of the State.

I am not a person who lacks compassion or realism but I have some problems with the proposition to put an extremely complex set of words into the Constitution. Nevertheless, if a vote were to be held, I would vote for it because it is the only way in which the issues will be put to the people.

If the truth be told and we were drafting a new Constitution from the beginning, there are many things in the Constitution that we would not put into the new Constitution. Perhaps this proposed clause would fall into that category. Even the most ardent supporter of divorce and the concept of divorce and remarriage — and by no means could I be so categorised — has some doubts about the wording that is proposed to be inserted in the Constitution. I do not subscribe to the apocryphal school of thought on this either, which is that Ireland is going to change fundamentally and irrevocably next month, but [1485] there are certain dangers, and when Members of the Oireachtas speak on an issue like this they have a responsibility, not just a right, to put those views on the record.

We are in danger of creating a great deal of constitutional confusion in the manner we are proposing to go. We are, in effect, ducking the issue. Divorce with remarriage will effect a fundamental change on the way we look at marriage, which is still an important institution in the State. I accept that marriage is looked on differently now than in the past, and people are no longer willing to be trapped forever in marriages which have lost love, which have no happiness and which have become a torture. The law has to accept change, indeed it has accepted it. We have made major fundamental changes in the recent past in the laws of the State in so far as they refer to the family and to marriage.

There can be no doubt, nor should we suggest that there is any doubt, that a society where there is no divorce looks totally differently on marriage than a society where divorce is freely or relatively freely available. We are discussing an issue that has major social implications for the nation and for the life of the nation. Given that we are at this point, it is incumbent upon us all to be calm and to be as reflective and as truthful as we can.

I am concerned that there are sufficient confessions already abounding to ensure that we will have another divisive debate on this issue. Like Senator Magner, I can never understand what it is about Ireland that we cannot discuss issues which we regard as of fundamental importance without savaging each other in the process. It appears to display both an extraordinary lack of character and is a feature of Irish life. For example, last week I had the extraordinary experience of walking to this House and being attacked by a gentleman from a minority party who sought to tell me what my views were on this issue. He did not wait for me to tell him that I have rather more complex views [1486] than he would have attributed to me. He did not wish to be overly confused with the facts; he simply wanted to let me know what his views were on the views he imputed to me.

I am concerned that there are certain aspects of the debate that we are going to face into in the next few weeks that need further elaboration. I have paid personal tribute to the Minister as a reforming Minister and as a Minister who has put on the Statute Book many pieces of law which I have personally supported. However, there are a couple of points that the State side and those proposing change need to address.

We need to examine more thoroughly than we have, and as objectively as possible, the social impact of our effecting divorce and remarriage legislation. We know there are studies — they will be trotted out and exaggerated in the debate in the weeks ahead — which suggest that there is an incredible impact on poverty, especially among women and children in the society where divorce is a reality. I accept that it is very difficult for any society to stop what is almost an inevitable social change. However, there is an important point that the State must address, that is, the issue of the evidence which exists of the impact of a divorce society on poverty, especially among women and children.

I accept that a great deal of ingenuity has been used by the State side in this debate to try and put in place structures and institutional arrangements which will prevent, in so far as it is humanly possible, the poverty that will inevitably flow. The Minister and his colleagues have made very real efforts in this regard. However, there is an issue to be addressed here, and we have not addressed it.

There have also been assurances given in the recent past by the Minister and spokespersons that there will be no significant cost on the State in taking this direction. If there is an ill in society, it costs money to correct that ill. If one of the ills in society that we want to correct is the fact that there is a significant number of people who have entered [1487] into second relationships, it will cost us. Once the State decides to do something, we must bear the costs and the consequences.

I have to say, and I am disappointed to say, that I find the arguments that there will be no cost on the State, and therefore on the taxpayer, simply not credible. The arguments which have been put forward, which I have read very carefully, ring hollow. Senator Sherlock remarked that nobody will be financially worse off as a result of a “yes” vote on the 24 November. However, we all know there will be a cost, whichever vote is made on that date.

In the information booklet the Government has circulated, and that is on sale through the Government Publications Sales Office, I find the treatment of pensions confusing. That may be because I have not given it enough attention. Although I have read it carefully I find it confusing and the arguments unconvincing.

I mention these three areas not to throw up unhelpful suggestions or spuriour arguments — that is not my style — but because they are areas the Minister and his colleagues will have to address. Marital breakdown and desertion and all that goes with them are, of course, tragedies and nobody could blame somebody whose life has been blighted by a bad marriage for looking for happiness elsewhere. I would certainly not find that blameworthy.

One of the arguments being made for divorce is that it gives people the opportunity to look for happiness elsewhere. That argument may be emotive, but it is an argument which bears heavily with me. The reality is that, if we allow divorce and remarriage, we are also allowing the perpetrator of the difficulties caused to remarry. But that is a different issue and perhaps it is not one on which we should depend unduly.

As I said at the outset, I do not subscribe to the apocryphal view of what will happen to Ireland on 24 November. There have been far too many debates [1488] in our society where people have suggested, for whatever exaggerated reason, that Irish life will come to a grinding halt the day after the referendum. Of course that will not be the case, but on 24 November we are making a fundamental decision — fundamental in the true sense — that will have a major impact on Irish society and Irish life. A Senator said that perhaps there are people who have doubts about divorce — and I would accept that I am in that category — and that we are harking back to an Ireland that may never have existed. That may be so but, nonetheless, it is an idyll that most of us have the right to aspire to.

I hope that, in the weeks ahead, there will be more logic than there was in previous public debates on this issue. I ask that areas like the issues of cost, pensions and social consequences should be dealt with as factually as possible in the information booklet the Minister will circulate. The truthful and factual presentation of the arguments on both sides will do a greater service to the people as we enter into these six difficult weeks. If there were a vote here, I would vote for it because this Bill gives the people the right to have their say.

I believe fundamentally in the referendum process. It is a good process and it challenges a people to face fundamental and important issues. It is their Constitution and their proprietorial right to that Constitution is emphasised by the fact that they are the sovereign authority and they alone can make decisions on it. I would have no fears of having more referenda on more fundamental issues, including the abortion issue, which Senator Ross suggested we are all skirting around. I am not skirting around it. We could go back to the people on that issue again without any fear.

I hope that the debate will be noninflammatory, that people will put forward views honestly and that people will have respect for alternative views. This is not a black and white issue; it is an issue that has many shades of grey. All of us in public life are probably more [1489] acutely aware now than our predecessors in this House and in the other House ten years ago were of the costs and consequences of broken marriage and the great unhappiness that exists. We have a responsibility to honestly seek a way out of that. I suggest that the Minister, the Government and all who have subscribed to this wording strive in that direction. Equally, I share at least some of the views voiced by Senator Ross — histrionic though they may have been. We are putting an unnecessarily complex wording before the public. There is a real danger that we are putting ourselves into another cul-de-sac, where we will have endless debates and endless litigation.

I am not sure — and we will never know — what the views would have been if we had put before the public the simple question of deleting that section of the Constitution. As has been said, a great supporting body of legislation has been put in place. I do not want to delay this debate. I should have said at the outset that I wish to share my time with Senator Finneran. I hope that is possible and agreeable to the House. I wish the Minister well and ask that, in all the information literature distributed, we try to put before the people all the positives and negatives — and there are many on both sides of the argument — as comprehensively as possible. I hope we will have a logical, well structured and non-hysterical debate, but then I am used to being disappointed in politics.

An Leas-Chathaoirleach: The Senator should have indicated before he started his contribution that he wished to share time, but I take it the House will agree to your wish. Is that agreed? Agreed.

Mr. Finneran: I thank Senator Roche for sharing his time. I am pleased with the content of today's debate. A reasonable debate has been taking place in this House and I hope that sets the tone for the debate nationally over the forthcoming days and weeks.

[1490] In 1986 when the question of a change in the Constitution was put before the people, I did not agree with it at that time. In fact, I campaigned strongly against it because I felt that it was premature. I thought that none of the guarantees or arrangements that were necessary for any type of protection, whether for spouse, children or property, had been addressed in an indepth way. At that time, the Irish people were asked to buy a pig in a poke and they turned their backs on it; they rejected it in vast numbers, and rightly so.

Even today when the question is being put again, albeit somewhat differently — which is a help and I will develop that point later — there is still a great level of anxiety and worry among the Irish people, and there is no doubt about that. There are still many issues to be debated in an honest way and there is a great responsibility on the Minister to make sure that detailed correct information is given in a forthright way. Should there be conflict on the basis that information is being held back, whether on cost or pensions etc., this debate could reflect the bad time we had in 1986. That would be unfortunate because we in this House today are taking a decision where the end result will be that the Irish people, and they alone, will decide whether they want a change in the Constitution.

To some extent, we have measured up to our responsibility in so far as 18 or 19 Bills have been passed with a view to addressing difficulties — some which would have arisen with or without divorce in separations — in the event of the people deciding they wanted to make a change in the Constitution. It was wise — and I know my party pushed this point strongly — to allow for a decent period of separation before divorce proceedings can be started. I am pleased there is a four year time gap between the time of separation and when divorce proceedings can be started. If that provision were not included in the proposal before the people, it would not have a chance of getting through.

[1491] There is broad consensus on putting this question to the people which shows that no Member of the Dáil or Seanad wants to introduce divorce on demand. They are reading the situation correctly because the people certainly do not want that.

The majority of marriages are stable and are working well. We are dealing with less than a 5 per cent rate of marriage breakdown. For the betterment of society and the nation the Government's first priority must be to protect the family unit. It would be a big mistake to concentrate our legislative effort directly on marriage breakdown and ignore the mass of people. I hope that will not be case in the public debate over the coming weeks.

There is a time for compassion and thought for the other person. It is time to ask whether it is fair for the State to ignore forever somebody who has been unfortunate in marriage. That would be a pity. The majority Church has not done that. In granting annulments it has been more to the forefront in this area than the State. This gave rise to the anomaly whereby Church marriage annulments were not recognised by the civil law. To some extent the Church was ahead of the State in recognising that there was a problem in some marriages and that they had a responsibility and duty to address it. Over the years they did address it, although the number of annulments has not been very big.

We have a responsibility towards people with marital difficulties but, in talking about marriage, we must always be very conscious of their offspring. The position of children in the event of a change in the Constitution is my greatest worry. While adults may put down a marker as regards what they intend to do, it is different for the children who in many cases are still at a very vulnerable and impressionable age. Their future can seem very bleak. I have no doubt that if divorce comes in it will impinge upon them, bringing worries, fears and instability to the children of certain families.

[1492] The Government must do more than promise legislation, back up facilities, agencies; it must be able, in practice, to deal with this situation if and when it arises. Separation for four years should not be the sole criterion for granting divorce. Agencies for counselling and mediation — not just to divide the spoils — are also essential in providing an opportunity to effect reconciliation. Every attempt at reconciliation should be made.

The appointment of a commissioner for children has been mentioned and I await the Minister's response to that suggestion. As legislators, it is important for us not to put a colour or bias on the proposal that will go before the people. They must get the full facts, the truth. They must not be scared or cajoled but should be allowed to make up their own minds after a reasonable debate. On this occasion I think they will.

In 1986 people heard horrific claims and counter-claims during a very troublesome campaign. It was a pity the debate was lowered to that level. At the time, the proposed question was premature but the situation is somewhat different now. On this occasion the people will take a cold calculated look and will decide for themselves.

Some commentators have said that the Church should keep out of the debate, but I would vehemently disagree with that. The Church, and all churches, have a right to their say on this matter. They have a right to advise their congregations whichever way they wish. It would be inappropriate to say that the Church does not have a part to play because it is entitled to advise its flock and state a particular side of the argument.

Divorce is not an issue for practising Catholics and, hopefully, it will not be an issue for hundreds of thousands of such people. Hopefully, the question to be put to the people will never arise in their homes. We would all wish, and we want to make sure, that our energies are directed towards maintaining the stability of the family unit which is the foundation of the State. There is a [1493] serious obligation on us to treasure, uphold and support the family in every possible way.

It is appropriate that the people should decide whether to remove the constitutional ban on divorce. It should be an informed debate, not a heated one, and scare tactics should not be used. People should be given full information and then they can decide if divorce, after a separation of four years, should become part of Irish life.

I do not accept the opinion polls which are off balance. This is one of the few countries in Europe with a Constitution. We have made decisions on important matters affecting Europe and we will make further decisions on military and defence alliances. The people will have an opportunity to decide and may God direct them.

Mr. Townsend: I welcome the Minister to the House and I compliment him for what he has done. Before I made up my mind on how I would vote in this referendum I took into account the religious, moral, civil and legal consequences of a “no” or a “yes” vote. I then decided to vote “yes”.

As a follower of Christ, I cannot be contradicted when I say that He was a man of great compassion who realised what was happening around Him. He realised that people made mistakes but said they should be given a second chance. He lived in the real world. There are many examples of the way He acted during His time in this world, including the time when the sanctimonious humbugs wanted to stone the woman for adultery. He told them: “Let he who is without sin cast the first stone”. He showed great compassion by giving her a second chance. I have no doubt that if He was here today, He would show the same compassion to people whose marriages have broken down; He would give them a second chance.

Those who are opposed to divorce are making misleading arguments. They claim that divorce will mean new legislation [1494] which will introduce a number of things that are already in existence under the Judicial Separation and Family Law Reform Act, 1989. They ignore the fact that under this Act the courts can grant maintenance to either spouse, which can be a lump sum or regular payments; grant maintenance or lump sums and property to any children; allocate the right to live in the family home; allow any property belonging to each spouse to be transferred to the other spouse; order the parties to live apart and order that the family farm be divided. Those who are opposed to divorce also ignore the fact that, although we do not have divorce in this country, there have been almost 10,000 applications for judicial separation in the five years that judicial separation has been available. They also ignore the fact that approximately 80,000 marriages have broken down, that the courts dealt with over 4,500 barring orders in 1993-94 and that that number is increasing.

I am delighted the Minister has included a four year waiting period before someone can start divorce proceedings. I do not want a “quickie” divorce culture in this country. When all the statements have been made and the fairy tales told about this referendum, we will vote on the right of those whose marriages have broken down to remarry. I would like my vote to be interpreted as a vote of compassion for people whose marriages have broken down and who wish to remarry. People who have made a mistake should be given a second chance.

The Church has every right to preach moral standards, otherwise it would fail in its duty. Moral standards are adhered to in this country and that makes it easier for the legislators. The State has the right to legislate. It is in the interests of the Church and the State that this referendum be carried because the alternatives are too serious to contemplate.

Mr. O'Toole: This debate is an opportunity to put points on the record. I congratulate the Minister, his Department and advisers for dealing with such tricky [1495] legislation and for finding such a high level of consensus. I recognise that compromise was necessary. Compromise is never easy. It is important to look at this as a consensual approach to a difficult and divisive issue.

This has been a divisive issue for 100 years. I was speaking at the weekend at Parnell's tomb and I made the point that this debate began with the naming of Parnell in the Kitty O'Shea divorce proceedings in 1890. That debate was divisive, bitter, acrimonious and nasty, particularly in Senator Townsend's constituency, and it spread throughout the country.

It has been the mark of every “moral civil war” since then that we cannot have reasoned and rational debate on the so-called moral issues without people adopting the high moral ground, where everyone is right and inflexible, so that “ne'er the twain shall meet”. I hope this debate concludes 100 years of divisive debate on the issue of divorce and that it becomes a model for future discussions on divisive social issues. A point of view, no matter how hard it is held or correctly worked out, is not necessarily a right or a wrong one. It is the subjective approach and reasoned position which people are entitled to take. I note that Senator Lydon is the next speaker. I have no doubt that he and I will divide on aspects of this issue. However, as long as he puts forward his view in a rational way, I will defend his right to do so, although I disagree with it. That is how we must continue matters here.

The question of pensions was raised by a number of speakers. It has been suggested that the State has not prepared adequate legislation to deal with this. I disagree. I discussed this here with the Minister on two previous occasions and the issue has been worked out. There is a grey area there which is better described as discretion of the courts, and that is necessary. This issue will never be worked out in a simple way.

The impact of the availability of divorce [1496] on the institution of marriage has been trundled through all the debates and thrown into the public arena with a great sense of certainty. There are those who are certain that the non-availability of divorce will improve marriages and there are those who are equally certain that the availability of divorce will improve relationships. The reality is that a marriage is a very complex relationship between two people. The availability or non-availability of divorce has very little impact on the quality of a relationship between two people. Divorce only comes into operation after the breakdown of a relationship and a marriage. For people to put forward the erroneous viewpoint that divorce in some way wrecks marriages is illogical. There is no logical chain of thought that can bring me — and I have tried to be as objective as possible — from the availability of divorce to the breaking of marriage. A relationship that is broken by the availability of divorce was never a true relationship.

Many of the issues that have come into the debate reflect an attempt by people who are opposed to the Minister's proposal to muddy the waters and to put smoke screens in the way of logical consideration of the facts. Words like “no fault divorce” and “perpetrator” have been used. To use the word “perpetrator” as a description of somebody who has been a partner to a failed marriage is wrong. To try to plunge this nation into taking sides on the breakdown of a marriage, to decide who was at fault, is to look backwards to try and adjudicate on a relationship which is now dead. To try and move into what we have seen in other countries, the idea of a fault based system of divorce, is wrong.

The other House has spent the last two hours talking about the involvement of surveillance teams, etc., and people found it distasteful. It is not as distasteful as what we would encounter were we to move into the area of fault based divorce with people spying on their private lives, catching them out, etc. This is certainly a nightmarish vista [1497] for any of us to contemplate and it would be absolutely wrong of the State to try to adjudicate on who was at fault in a broken relationship.

If somebody has been guilty of domestic or physical abuse of members of his — it is normally, but not always, his — or her family, that person should be taken through the courts and if that person is seen to be the perpetrator of domestic violence he or she should suffer the consequences of the harshest measures the courts have available to them. However, that is a separate issue to divorce. Relating that to divorce is tying in two separate areas. It may well be that a person who is a perpetrator of violence within the house can and will regularly be the cause of the breakdown of the relationship, but I do not understand the idea that this should in some way militate against the victim in that relationship getting a second chance.

I have some sympathy with those who do not like the introduction of divorce. We have been through it in many ways. Many people regretted the introduction of sex education to our schools. It reflects a sense of lost innocence. It is a pity that we have to tell our children these things, we would prefer if they grew up and retained their innocence for a much longer period. Who would disagree with that? We all agree with it, but we have had to take the harsh decision that we need to respond to and deal with the world outside. I see something very similar in my own profession of teaching. I have to advise teachers on the way they should regulate their relationships with their pupils in order to protect them from false allegations of, for instance, child abuse. I would prefer if I did not have to do this to my teaching colleagues, but it has to be done for their own protection.

The introduction of divorce is similar. Everybody would prefer if divorce were not necessary, if marriages were never to break down, but that is a Utopian vision. Relationships will break down and we have a duty as legislators to ensure that people are protected as best they can and given every opportunity [1498] under the legislation and we have a duty on this occasion to move forward on the area of divorce.

I want to speak with some authority on the area of children. As general secretary of the teachers' union I am normally at the receiving end of allegations of using children and pupils as pawns in the game if I am ever in the invidious position of being forced by irrational Governments into industrial action, so I have some understanding of that, but I regret the way children have been used in this debate. I have trawled the psychological surveys and works available on both sides of the Atlantic. I have looked at the evidence and I have listened to the arguments.

Time and again I have heard people putting forward the difference between children in a sound marital relationship and those who are the children of a divorced couple. They outline, quite correctly, the different problems suffered by children whose parents are divorced. Those are facts but I want to put it on the record that I can find no evidence comparing children from a broken marriage with children from a divorced marriage. Those facts are not available, that study has not been done. Children of a broken marriage experience the same suffering as children of a divorced couple. An argument can be made — I cannot back this up with evidence — that in many cases the regulation of a divorce improves the situation for children. At least then they understand the position.

I repeat, I am not aware that there is any evidence available — I have trawled all the psychological surveys and all the evidence that is available to me — to show that the children of a broken marriage are worse off after a divorce than they were before a divorce. The breakup of the marriage, the relationship and the domestic arrangements are what impact on children, not the regulation brought to bear on that by divorce. I ask the Minister to take every opportunity to make that point in public.

I take a position contrary to the Minister's in regard to whether we need to change the Constitution. I hold the view [1499] put forward by the Progressive Democrats on this. I recognise there is no other way of getting agreement on this issue other than by making this change to the Constitution. For that reason I support what the Minister proposes with some reticence in that I would prefer if it had been possible to have dealt with it another way. However, I do not believe there was another workable way. The thought of going through a third attempt at divorce some time down the road is appalling. There is no doubt that is what would happen. This issue will not go away — it is a growing problem which needs to be regulated.

Much has been made about the involvement of Churches, religions, faith and people's beliefs. I have argued with many friends in religious life, particularly priests about divorce. The analogy I use and the aspect of the argument which I always ask them to consider is that even priests who are ordained through the sacred sacrament of Holy Orders and who on ordination make solemn vows to religious life, rightly, if they find themselves unable to discharge the onerous responsibilities of priestly life, have an opportunity to change their minds, to withdraw from their vows and to have a chance in marriage, in a relationship or otherwise. That is a fair analogy and is a point I put to Senator Lydon during a previous argument on this issue. If we accept that priests can withdraw from the commitment of their vows, is it not fair to say that those in married life should have the opportunity to withdraw from the commitment of their vows made in church?

Mr. Taylor: What answer did they give the Senator?

Mr. O'Toole: I am not putting that in a point scoring fashion. I simply want to make a number of disjointed points.

This is an exercise in democracy. I have always been opposed to the preferendum idea put forward by the Green Party where people get a questionnaire [1500] each month to see what they want. The population participates in a so-called democratic process by being involved in a preferendum. I disagree with that. However, this is an issue which must be put to the people so they can express their point of view. I ask colleagues in public life, whatever their point of view, to ensure that as many people as possible participate in this referendum. As members of a democracy people, whether for or against, have a responsibility to express their citizenship by participating in a referendum. Nothing can be more precious, whatever the issue, than that.

Looking at how this debate has moved from the mid 1980s to the present, I agree with the point put forward by the Government that the issues identified and isolated as needing attention in the mid 1980s have been dealt with one by one in a planned and progressive way by various Governments which have put together a response to the demands put forward during the last referendum. There is now one outstanding issue — the right to remarry. It is the only issue at stake in terms of what needs to be sorted out via legislation. Where does that leave us? I believe it leaves us with two sides to the argument. Everybody agrees the right to remarriage is the final legislative hurdle apart from moral and other arguments. There are some who argue that the right to remarry brings instability into the social order of community life, that that instability is bad for society, the institution of marriage and children and that it in some way undermines the foundation of society.

The other argument is that far from creating instability, the right to remarriage, to have regulated second relationships and the importance of protecting via legislation the rights of partners in first and second relationships and having enshrined and protected in legislation the rights and privileges of children of first and second relationships brings greater stability, understanding and tolerance and gives children an understanding of the complexity of [1501] relationships and a sense of being wanted and looked after by the State. It is my view that the right to remarriage brings stability into the social order and is to be recommended in society. For that reason, I support it.

Mr. Maloney: May I share my time with Senator O'Sullivan?

Acting Chairman (Mr. Sherlock): Is that agreed? Agreed.

Mr. Maloney: I welcome the legislation on divorce. It is a fact of life that 70,000 people have serious problems as regards their marriages. It is a reality which the people must face. I come from County Donegal and I have tried to compare the situation here with that in Northern Ireland. Divorce has been available to the people of Northern Ireland — Catholics, Protestants and Dissenters, it makes no difference. The floodgates have never opened in Northern Ireland as regards divorce.

I have had a number of discussions recently with priests ministering in Northern Ireland. They would be happy to see divorce here and hope we will have the sense and courage to pass the referendum. They said it does not present a major problem in Northern Ireland, which is contrary to what many people have said until now.

We have had a very emotive argument. I listened to groups like the Knights of St. Columbanus, a secret organisation within the Catholic Church, trying to scare people into believing that society will break down because, if divorce is introduced, the family will be destroyed. It is unfair of these groups to give this message which is untrue. Family life in Northern Ireland has not broken down or been harmed because of what has happened there. People have said this will destabilise marriage, which Senator O'Toole spoke about, but this has not happened in Northern Ireland. We are being asked on 24 November to give people a second chance. It is a civil and human right which must be granted.

[1502] The story as regards children is very unfair. The lies told during the last referendum were unbelievable. I hope that does not happen again. The Government has put in place a series of measures to allow people the opportunity to have their day in court so that if a marriage has broken down, matters can be dealt with properly. Funding has increased substantially so people do not need to worry about funding when they go to court. It is a necessary evil and all we ask is that on 24 November people be given the chance to remarry. Speaking as someone who lives near the North, it has not caused a breakdown of society in the North and it will not cause a breakdown of society in the South. I hope the referendum is won.

Ms O'Sullivan: I wish to share the remaining time with Senator Reynolds.

Acting Chairman (Mr. Sherlock): Is that agreed? Agreed.

Ms O'Sullivan: The general tone of debate both inside and outside this House indicates that we are finally recovering from the post colonial mentality from which this country suffered for a long time. When trying to forge an identity for Irish people after independence we tended to latch on to stereotypical images of what we thought we should be. The most obvious example is the famous de Valera quote about dancing at the crossroads. There is a wind of change and a maturing and we are finally growing out of the idea that we must conform to some ideal image of what it is to be Irish.

We are facing the realities of Irish life as opposed to the myths we tended to create for so long. However, I, along with other public representatives, got a letter today which might have reinforced the concept of those myths. It says:

Daylight force is easily recognisable.

Cromwell — penal laws — persecution — robbery of land — robbery [1503] of churches — robbery of faith — an unjust parliament, and today malice used in newspapers and televisions against politicians too.

It goes on to say:

What Irish family... would ask its youth to break their faith, by cunningly using a Referendum against the sacrament of marriage, belief in Christ and against Ireland.

That is a good example of the mentality I thought we were outgrowing. There are still some people who believe there is some brave Irish nation trying to fight the ravages that other people are trying to impose on us. I totally contradict that argument. What we are actually doing is maturing and dealing with the realities that face us in Irish life and I welcome that.

This divorce referendum and the support for it across all political parties is an indication that we are willing to deal with realities. We can be proud of being Irish but it does not mean we exclude pluralism, people who make mistakes, second chances and the possibility for people to live their lives in a variety of different ways. Senator Magner spoke about the debate on condoms, which was also a step forward. The manner in which we can identify so strongly with an Irish soccer team, most of whom live and play soccer in England, is another example of how far we have come in our definition of what it is to be Irish.

We are dealing with realities that were brushed under the carpet in the past, the most obvious being violence against women and children, whether that be physical, sexual or psychological violence. We have also developed a much deeper understanding of other cultures and that has put flesh on the concept of pluralism. We talk about pluralism but only now have we begun to understand what it really means. The Irish people are very well aware of what we are asking them to do when we ask them to vote “yes” in this referendum and they are willing to deal with the [1504] complexities of the issues. I am confident that we will secure a “yes” vote in the referendum.

No institution is 100 per cent perfect and no one can make it so by wishful thinking. We are doing a much better service to marriage by acknowledging and dealing with the reality that some marriages do not work. We are affirming the marriages that do work. It is better to affirm joyfully by supporting those meaningful and enriching marriages than to pretend, for example, that where a spouse has lived in England for the last 15 years while his wife is at home with the children, that is a marriage. We must acknowledge and legislate for those realities. We have already legislated for much of the reality but in looking for public support for the divorce referendum, we are offering the opportunity of remarriage and a second chance.

It is also important to recognise that the nuclear family as the norm is a relatively recent phenomenon. The 1946 census showed that 72 per cent of men in the 20 to 39 year age bracket were bachelors. Marriages occurred much later in life. There has been an extraordinary growth in the development of marriages. Finola Kennedy of the ESRI in a book called Family, Economy and Government in Ireland says that within the space of a single generation, from the 1950s to the 1980s, the patterns of the traditional extended family dissolved and were replaced by the norm of the nuclear unit. We are going through a further period of change. From 1986, when the last divorce referendum was held, onwards there has been a huge increase in the number of separated persons. The figure is put at approximately 70,000. We must legislate for that reality.

Aspects of existing legislation, particularly the Family Law Act, 1994, are crucially important in this debate. One of the most important measures is raising the marriage age from 16 to 18 and requiring a three month waiting period before marriage. We also extended the availability of counselling and [1505] mediation and there is an emphasis on the welfare and rights of children. If we take marriage seriously we must regard getting into marriage as seriously as getting out of it. This legislation does that and our society is beginning to realise how important it is to prepare for marriage. We are stressing the importance and seriousness of marriage and at the same time making allowances for those people whose marriages have failed despite their best efforts. We are emphasising that it is an extremely important institution that people should not enter into lightly.

I support the inclusion of a delay period in the legislation. Senator Ross denounced the fact that we are writing some of the terms, including the length of time people must be separated before being granted a divorce, into the Constitution. Marriage is an extraordinarily serious contract particularly if one envisages having children. It is appropriate that we should indicate to people in the wording of the referendum that we do not intend to allow quickie divorces and that we intend to ensure people think very carefully before seeking a divorce.

If one enters into a contract to lease property or an employment contract, there is a period of time within which one must pursue that contract. One cannot get out of that contract. Surely the contract of marriage is much more serious than many other legally binding contracts which demand a time period. It is appropriate that we put that constraint on people before they can apply for divorce. I support the Government's approach and believe it will be successful when it goes before the people.

We are at a stage in the maturity of our social thought and the way we order society that we can accept that there will be people who would never seek a divorce, even if they were separated for donkeys years, because they do not believe it should be available to them, probably because of religious convictions. On the other hand, there are many people who believe that if a marriage [1506] has irretrievably broken down, there should be the right to a second chance, that we live in a pluralist society, a republic in the true sense of that word, and that it is only proper in such a society that civil divorce should be available for those who wish to avail of it.

Acting Chairman: The Senator has approximately 12 minutes.

Mr. Reynolds: That will be plenty. I thank Senator O'Sullivan for allowing me to share time with her. I suppose I find myself in a unique situation due to the fact that I have not found myself a wife yet and am speaking on divorce. Hopefully, God is good.

I welcome the Government's decision to hold a referendum. It was important that the Minister spent time trying to bring all parties on board and reach a consensus view and I am glad all political parties in this House have given their backing to the referendum to be held on 24 November.

County Leitrim, which I represent, is the most rural in the country and the trauma of marriage breakdown has affected quite a number of families in rural Ireland as well as urban Ireland. It is not an urban problem. Having said that, from a political point of view I would be more than surprised if the referendum was passed by a vast majority in my constituency.

Over the last ten years, as Senator O'Sullivan pointed out, the amount of legislation which has been enacted and the number of families which have been affected by this trauma has altered the views of people on the whole situation of marriage breakdown, the right to remarry and divorce.

I understand also that the legislation put in place over the last ten years is the most liberal in Europe with regards to legal separation. The Government is only asking people to vote on the right to remarry, where people are in second relationships and where individuals' marriages have broken down. We must put that point of view across. The legislation [1507] put in place over the past ten years has made such a difference. A lot of unanswered questions from the last referendum have been answered in a practical way by it.

There were ongoing discussions that we should stay clear of amending the Constitution due to the fact that we had run into great difficulty with any constitutional amendments which had been brought before the people. Having thought about the issue at length, I think it is a good idea to amend the Constitution due to the fact that there are a lot of people who do not want to see quickie divorce or divorce on demand being introduced. I assume — and it is an assumption on my behalf — that most Members of the Oireachtas would be more liberal in their social views than the majority of citizens in our country. Attempting to amend the Constitution means no change can be made to the four year time lapse without going back to the people. That is a great leverage for the people and is something which they should understand.

We are not in the throes of the campaign yet, and until Senator O'Sullivan read the letter she received from the anti-divorce lobby I was going to compliment people on the fact that we had not been given any of that type of literature.

Mrs. McGennis: Some of us have been given it.

Mr. Reynolds: Obviously, it is on its way. We must be careful of the way in which we handle the issue. I hope these people do not try to put fear in people's minds over the changing situation. The country has matured. It is critically important for the future of society in this country that a “yes” vote is given on 24 November.

It is also important that young people participate in the voting process. I am pleased to note that polling day is a Friday and that polling booths are open until 10 p.m. This will be of great benefit [1508] to the people of rural Ireland. It certainly gives the young people who are away in college or at work the chance to exercise their franchise and I hope they will do so.

I wish the Minister and the Government the best of luck in introducing this amendment to the Constitution and hope it is successful.

Mr. Lydon: I, John, take you, Mary, to be my lawful wedded wife, to have and to hold until I get rich, you get sick or I fancy somebody else, and I will leave you against your will and take with me my contributory pension. Is not that what is really going to happen in the future? Is not the introduction of divorce just another liberal nail in the coffin of Irish family life?

Mr. Norris: Hear, hear.

Mr. Lydon: The Senator can make fun of it if he wishes; I think I speak the truth. The Irish people are facing a grave decision and I hope they take the one which I suggest and not the one suggested by the Government.

I am surprised. I believe the Government is in a sense acting unconstitutionally by advocating divorce and a “yes” vote because they are bound by the Constitution to protect the family. By advocating divorce before the Irish people have made up their minds on it, I think they are acting against the Constitution, but we can leave that for another day.

Marriage is the legitimate union between a man and a woman as husband and wife, binding them to a lifelong indivisible community of life and in the history of mankind it is the most common form of union. Marriage has won for itself an immense social approval by virtue of its two characteristics: first, its unity, and, second, its indissolubility.

Divorce removes from marriage the characteristic of indissolubility by dissolving the marriage and granting the right to remarry. If we look at the conflict between marriage and divorce, we [1509] see that the choice is not marriage and divorce: it is marriage or divorce. Everybody has a human right to a permanent union within marriage and in marriage the partners decide to give themselves to each other realising that although external factors may change, they remain the same persons. John, the husband, may become richer or poorer, healthier or weaker, but he is still John and the same is true of Mary as a wife.

The unity and indissolubility of marriage which exists at present ensures that the relationship has greater security and stability. This helps the couple to be open to having children, that the children will be educated by their parents and that the couple act as partners.

I believe the permanence of marriage is in harmony with the essential elements in human nature but, unlike marriage, divorce has no basis in human rights. It is an attempt to dissolve something which it has no right to dissolve. Once the natural contract of marriage is valid, it is made, by its nature, indissoluble. Nobody can claim a human right to take it back. It is something which has been given unconditionally and with full freedom.

In any society I believe the law should seek to uphold that which is good. The law tends to generate peer pressure on members of society and if something is sanctioned in law, it implies that it is approved by society and is morally acceptable. The introduction of divorce sanctions temporary rather than permanent marriages. All marriages then become inherently temporary with the added option of lifelong fidelity; it would just be an option. In time the temporary nature of marriage dominates and there is no longer any true legal support for lifelong unions. This is the experience in all countries where divorce has been introduced and nobody can deny that. Once divorce is introduced, attitudes to marriage would begin to change and the idea of marriage being a non-permanent union would begin to take hold in society.

I suggest divorce is a legal deceit because abolishing the legal right to lifelong [1510] and indissoluble marriage makes “for life” become “as long as”. The form of divorce proposed for Ireland is no-fault divorce, which means no one is held responsible for the breakdown of the marriage. It also means that once one partner decides he or she wants to end the marriage, it invariably does.

Divorce dissolves a marriage and provides both spouses with the facility to remarry. It is a legal attempt to take the respectability won by permanent marriage and apply it to second marriages. However, this respectability has been earned by virtue of the permanence of marriage. The hijacking of marriage by divorce is ultimately a defilement of marriage, resulting in the loss of its respectability as an institution. The Swedish experience is worth noting in this regard. Despite a continuing liberalisation of their divorce laws, more and more people cohabit. Once marriage becomes a provisional cohabitation it is understandable that couples would not differentiate between legalised cohabitation and cohabitation per se.

At present the Constitution states:

No law shall be enacted providing for the grant of a dissolution of marriage.

The Government proposes the following replacement wording:

A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that—

i. at the date of the institution of the proceedings the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii. there is no reasonable prospect of reconciliation between the spouses,

iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and [1511] iv. any further conditions prescribed by law are complied with.

The proposed amendment is similar to the one defeated in 1986. It provides for no-fault divorce; once one partner to the marriage decides to divorce, the satisfying of certain legal conditions guarantees the outcome, allowing the person to remarry. The courts have no role in investigating or apportioning blame to either spouse, whatever the circumstances.

Although no-fault divorce lies at the base of the “quickie” divorce culture in other jurisdictions, the time limitation in paragraph i. of the amendment is designed to act as a brake on this happening here. However, there are two significant weaknesses in this approach. As divorce will be no-fault, a decree will issue as a matter of right on proof of living apart, thus nothing will prevent a spouse deserting the marriage immediately to start the clock on the divorce application. It would be to the advantage of a deserting spouse to enter a new relationship immediately in order to start the clock, secure in the knowledge that, come the divorce hearing the courts will be obliged to consider favourably his new family relationship when making provision for his former family. The time provision is therefore unlikely to have a significant dampening effect on the numbers applying for divorce and might even backfire.

More significantly, the term “living apart” may lead to any notion of time delay becoming redundant. At first sight this term appears clear but when launching the campaign on September 13 the Minister conceded couples could be “under one roof but living in different households”. By not specifying physical separation as a constitutional requirement the Legislature or the courts are even free to accept “living apart” as a state of mind existing in the petitioning spouse. Such an interpretation would be a logical development in a no-fault divorce culture. In any case the term is wide open to abuse if both [1512] spouses declare, either by agreement or because of covert coercion by one spouse, that they have lived apart under one roof for four years. Many see this “living apart” clause as a liberal Trojan horse in the proposed amendment wording.

The wording requires the court to ensure that appropriate provisions, financial and otherwise, are made for those affected by the divorce. In 1986 the court was required to be satisfied that:

adequate and proper provision having regard to the circumstances would be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

The 1995 wording adds “and any other person prescribed by law”. The draft Family Law (Divorce) Bill does not indicate the scope of this provision. Who would deny that in the context of a divorce “any other person” must primarily refer to a future spouse or cohabiting partner of one of the parties to the first marriage? More relevantly, what Supreme Court would deny such an interpretation?

This apparently harmless addition provides a firm constitutional footing for a cohabiting partner's claim to maintenance on a par with the constitutional family's right. With this phrase it seems likely the courts will give full consideration at the divorce hearing to the future second family's needs, regarding it as an institution most likely to endure. Without the phrase it is arguable whether the court at that stage of the divorce hearing should give such consideration to the future second family. The constitutional provision cannot but be a deliberate addition and it makes sense in a policy framework which denies the family based on marriage has any prior social or moral right to Government support over and above any other relationship people choose for themselves.

Once remarriage takes place the second family is likely to receive constitutional priority in any other maintenance hearings but the constitutional [1513] position of the first family subsequent to divorce remains unclear. Who are its members? How could joint custody proceedings affect this? What happens to the children if both parents remarry? What “inalienable and imprescriptible rights, antecedent and superior to all positive law”, under Article 41, does the first family hold following a divorce? When does it cease to be a family? These questions must be answered because, despite what some commentators maintain, they do not arise with marital breakdown but with divorce. They have not been addressed in Government presentations, possibly because of the uncomfortable reality they identify.

In defending the current proposals the Government has emphasised that divorce will only affect dead marriages and will help legalise many cohabiting relationships which currently exist to the benefit of adults and children. The Government denies divorce will have any propelling effect on the rate of marital breakdown and claims it will have no negative effects over and above those which are a feature of marriage breakdown. These claims ring hollow. It is instructive to look at some important differences between judicial separation and no-fault divorce as a response to marriage breakdown because the potential for damage contained in the current divorce proposals becomes strikingly clear when one does so.

First, judicial separation acknowledges and supports the institution of marriage. It regulates marriage breakdown, although some would argue about injustices in the present judicial separation procedures. It is directed towards the good of the spouses and children and honouring the natural lifelong commitment within all parties. No-fault divorce, however, redefines all marriages as provisional commitments which can be terminated unilaterally at will. The amendment wording acknowledges the minimum duration of marriage as four years. Paradoxically although through remarriage the Government wishes to offer permanence [1514] and stability to cohabiting relationships, the stability it offers can only be provisional due to the redefinition of marriage as a temporary contract.

Second, by denying a right to remarry, judicial separation maintains the esteem in which marriage is held in society but no-fault divorce, by appearing as an easy option, leads to escalating marriage breakdown and to future marriage breakdown among the children of divorcees. Over time marriage ultimately becomes meaningless in a divorce society.

Third, judicial separation acknowledges the institution of the family founded on marriage and maintains the integrity of the family relationships despite marriage breakdown. This is enormously valuable in protecting the rights of children to have ongoing relationships with both their natural parents. No-fault divorce sees marriage as a husband-wife relationship which is dissoluble and has no place in its philosophy for children. The constitutional position of the first family and the legal status of children becomes unclear on the occasion of the remarriage of one or both spouses. The social reality of the extended family disappears because of the complexity of relationships which divorce brings about. Even the divorce campaign proposals from my party for the protection of children — for instance, the appointment of child commissioners and children's counselling service — show clearly how in divorce jurisdictions the State is obliged to involve itself further in the lives of families and individuals, usurping the role of parents and the extended family.

Fourth, judicial separation permits the acknowledgement of the injustice of desertion. It recognises the obligation of marital fidelity and through various means, including financial, it encourages parents to fulfil their responsibilities. No-fault divorce denies personal responsibility and consequently encourages irresponsibility. It abandons the first family and denies its legal status and rewards desertion by granting the [1515] unfaithful spouse the right to marry again. Although it recognises the financial needs of the first family it only does so in the context of the needs of the new second family.

Fifth, judicial separation makes financial demands on a deserting spouse to support his family, thereby discouraging the setting up of a second family. It also deprives him of certain rights because of his irresponsibility. No-fault divorce entitles a second family to a share in these resources at the expense of the first family and following remarriage gives a constitutional priority to the second family. In the Irish context of a high dependency rate and a low participation of women in the workforce, divorce invariably places more first families on social welfare. No-fault divorce rewards desertion.

Sixth, judicial separation permits a deserted spouse and children to obtain the legal status of marriage and family bonds of the deserting spouse. No-fault divorce entitles the deserting spouse, through the courts, to remove that status from them and confers it on others. Thus no-fault divorce is inherently unjust in that it rewards the guilty party.

Seventh, judicial separation always leaves open the possibility for reconciliation as well as maximising access of both parents to their children. No-fault divorce destroys the second chance a marriage may need and, despite all the goodwill which may exist, results in a loss of contact between parents and children, often at a crucial time in the child's development. No-fault divorce, by allowing the introduction of a new parent, increases the trauma and conflict experienced by children.

The proponents of divorce claim it provides a second chance at a happy marriage. Judith Wallerstein, in her book Second Chances, sees it differently. I quote:

People want to believe that divorce will relieve all their stresses. Back we [1516] go to square one and begin our lives anew. But divorce does not wipe the slate clean. Some second chances come with three small children, a low paid job and the ghosts of the failed marriage. Some come with a sense of having been torn away from one's children and not knowing how to reestablish a home. Some second chances begin with loneliness and a feeling of being unloved and unlovable. Some bring on acute problems which turn into chronic problems. A second chance at the age of 45 is not equivalent to a second chance at the age of 32. Children do not perceive divorce as a second chance and this is part of their suffering. They feel that their childhood has been lost forever. Divorce is the price they pay as forfeit to their parents failures jeopardising their future lives.

Meanwhile having achieved so little for those who want it, divorce accelerates the rate of marriage breakdown in society unaffected. Who will benefit from divorce? Is it the children or the wives or the husbands? I do not believe that women benefit. I believe that, due to larger family sizes, fewer working wives and higher taxation, divorce will have a greater financial impact on Irish families than on families in other countries where divorce is permitted.

If divorce is introduced in Ireland it will be a unilateral choice. Women are always the losers in financial settlements accompanying divorces. Once divorce involves a second family the likelihood of adequate maintenance for the first wife is small. The law will try to ensure that the second family is financially secure and tends to underplay its responsibility to the first family. There is no guarantee that when adequate maintenance is enforced the first family will receive it. It is interesting to note that almost 10 per cent of men in British jails are there because they did not pay maintenance following a divorce settlement. I believe that women and children suffer more.

[1517] The interests of children are threatened by the introduction of divorce. The psychological effects on children are numerous and complex. Even children from intact families cannot escape the effects of divorce in the community around them. Acknowledged scientists who work with divorced families observe that high incidence of divorce has significantly raised levels of anxiety in relationships between men and women. This also occurs in many instances between children and their parents, whether they themselves come from divorced families.

The actual process of divorce involves another collection of psychological disturbances. Judith Wallerstein records that the children of divorce suffer from bewilderment, regression, fearfulness, possessive behaviour, profound loneliness, a sense of rejection, anger and aggression. Studies have shown that, when compared to children from intact homes, twice as many children from divorced homes require psychiatric assistance. They are more likely to show aggression to their parents, abuse alcohol and drugs, develop sexual behavioural problems and come into contact with the law. Children of divorce experience a higher rate of antisocial delinquent problems, particularly drug abuse and sexual behaviour. It was also discovered that children of divorces are more likely to display overt aggression towards their parents among the reasons for psychiatric referral.

Some people argue that divorce is better for children than unhappy marriages. However, despite Senator O'Toole's comments, scientific literature no longer supports this view. Numerous studies have shown that divorce is not solely due to an unhappy marriage. Financial problems, inadequate marriage counselling services and bad advice from lawyers and social workers have all been implicated in this regard. Even where there is unhappiness, children have been shown to prefer it to the divorce of their parents and the finality implied by that event. In situations of remarriage, step-parents are [1518] not always accepted by children. Conflicts of loyalty and authority often result. It has been reported that, in certain circumstances, a daughter is five times more likely to be sexually harassed by her stepfather than her natural father. I do not believe divorce does anything for children.

Who does it benefit? I think a priest recently said that it benefits randy old men with plenty of money. It is an acknowledged fact that in every jurisdiction where divorce was introduced, women's incomes have decreased.

Mr. Norris: A priest? Now there's someone qualified to speak about randy old men.

Mrs. McGennis: How much did he pay out? £50,000 was it not?

Mr. Norris: £56,000 including court costs.

Mr. Lydon: Senator Reynolds made the point that most Members are more liberal than the people who voted for them. That may be true. However, I have spoken to many Members from my own party and others who are voting for divorce in the House but will personally vote against it in the referendum. I do not know why they do not come out and say so. I will certainly vote against it.

Mrs. McGennis: That is a surprise.

Mr. Lydon: In conclusion, I offer the following quote:

It is true that the stability and sanctity of marriage are being threatened by new ideas and by the aspirations of some. Divorce, for whatever reason it is introduced, inevitably becomes easier and easier to obtain. It gradually comes to be accepted as a normal part of life. The very possibility of divorce in the sphere of civil law makes stable and permanent marriages more difficult for everybody. May Ireland always continue to give witness before the modern world to a traditional [1519] commitment corresponding to the true dignity of man, to the sanctity and indissolubility of the marriage bond. May the Irish always support marriage through personal commitment and positive social and legal action.

Those are the words of the Holy Father at Limerick before he left Ireland on 1 October 1979. His words may not touch some people here but they will touch hundreds of thousands of Irish people. I do not believe divorce is inevitable; I believe it need not be introduced. If we follow the path of other nations we will be making a very grave mistake. It only brings anguish, it does not bring relief. It does not matter whether the media produce some self-opinionated theologians or truculent nuns. It will not affect the message that what God has joined together let no man put asunder.

Mr. Norris: I must apologise for my inadequacy. I am not in such direct contact with God as the previous speaker. However, I am, perhaps, in greater contact with the human realities which this Bill attempts to address.

I am not wholeheartedly enthusiastic in my support of this Bill for a number of reasons. First, I believe it inappropriate to put this kind of material into the Constitution. A great deal of unnecessary baggage has been imported into the Constitution. I regard the introduction of the ban on divorce into the Constitution in the first place as offensive, divisive and nakedly sectarian. My position is the same as that of my church, the Church of Ireland, and of a great number of other people in this country. The Constitution should be for the enunciation of principle and legislation should take responsibility to implement and articulate those principles in practice. So much extraneous material has been put into the Constitution, including details about the arrangements for living apart, etc., that I wonder what other kind of irrelevant details will be included in the future? Will the price of eggs or the [1520] time of high tide at Sandymount Strand be included? It is becoming absurd, in my opinion.

There are many absurdities and contradictions in Irish life. The Minister is a caring and thoughtful man and a fine practising lawyer. I believe the Government is trying to address this situation in a tactical and realistic way so that those unfortunate people who are caught in a situation of irretrievable marital breakdown can at least have the opportunity for a second chance. That is the human reality and for that reason, grudgingly, I will not vote against this Bill although I had intended to oppose it.

In his speech the Minister put figures on the record. There is already a significant and growing problem of irretrievable marital breakdown and unhappiness in the total absence of divorce. Prohibiting, outlawing and excoriating divorce as the necessary source of all evils in marriage, as we have just heard, does not work as the prophylactic that Senator Lydon and those who share his views appear to believe. If it did we simply would not have any marital unhappiness. We would be as perfect as a correspondent from Portlaoise who wrote to me recently appears to believe we would have been but for the malign influence of Cromwell and Protestantism. He appeals to our belief as politicians in the Catholic faith. Although I am Catholic, I am an Anglican Catholic and not a Roman Catholic and I do not share his beliefs; nor do I share the simple minded notion expressed by sentences like: “This faith which has made us tough, strong, fearless, courageous and brought peace and harmony through music, song, dance and learning to our Irish towns and small villages;” or sentences like “To explain our strengths, our beauty, our freedom, our uniqueness to foreigners one must examine marriage and look back in time.” However when we look back in time, we discover “Cromwell, the nobleness, truthfulness and justice of the Irish people and the cunning of stealth currently being used by the Minister and his like to undermine the Irish [1521] Constitution and marriage.” All that this letter demonstrates to me is that we have a large national resource of naiveté located in the midlands if not elsewhere throughout the country.

I find it astonishing how the same bunch of control freaks crop up in debate after debate on the realities of human life. These are the same people who fought against the introduction of the right to contraception, abortion information, the decriminalisation of homosexuality and the civil rights provisions for gay people. They seem to have an endless neurotic interest in controlling the welfare and the lives of other people. When I consider them I wonder how qualified they are. A valued friend of mine in the other House, Deputy Andrews, selects for special, if somewhat wistful praise, Dr. Joe McCarroll, who is a doctor of theology, I think, not a medical doctor. He praises his logical, good arguments. Dr. McCarroll has frankly admitted on television that his own marriage disintegrated disastrously. That seems a strange qualification with which to seek to arbitrate on the marital relations of other persons.

I also look without gloating on the squalid series of scandals that has recently afflicted the Roman Catholic Church. I listened with astonishment to the whimsical remarks of Senator Lydon when he said the only people rewarded by divorce were randy old men with money. I think of a particular priest in the Archdiocese of Dublin who paid out £50,000, plus £6,000 costs, on foot of an allegation, which has not been denied, of the sexual abuse of altar boys. I learn with astonishment this man continued as a senior judge in the marital tribunals of the Roman Catholic Archdiocese of Dublin. How immature, how extraordinarily low our sense, of our own value, intellectual worth and decency as human beings if we are prepared to be dictated to by moral arbiters of this calibre. I find it simply astonishing that it should be so.

I read the report of the debate in the other House and my doubts as to [1522] whether I would vote against this Bill started when I read the Minister's speech in the other House. The Minister began by placing on the record that many tens of thousands of our citizens are involved in marriages which have broken down beyond hope of reconciliation, and which have in fact, if not in law, irretrievably come to an end. He said: “It is their welfare that I wish to place at the heart of today's debate, and the debate which faces us in the weeks to come.”

It is indeed the human welfare of our citizens who are in difficulties which must be addressed and which are addressed, although in an inappropriate and inadequate manner, by this legislation. I have no doubt it is a move in the right direction. If I were to speak strongly against the provisions of this Bill and urge people to vote against it, or even to be seen to be voting against it, it might be that would influence other people, even a small number, to vote against the legislation. I would be unwilling that should happen, although I have considerable reservations about the provisions of the Bill.

I note a number of people, the Minister for Social Welfare, Proinsias De Rossa, included, speak of the fact that people should have the freedom and right to seek happiness in a second relationship which is endorsed by the legal and social institutions of the State. I agree. However, I do not have the right to the recognition of my relationships. I have had a relationship with an Israeli for the last 20 years yet I received no support from this State. I have conducted this relationship sometimes in difficult and turbulent emotional times for a period of 20 years, against the intervention of Church, family, State, law and everything else.

I sometimes wonder when I hear people like Senator Lydon tell us that if we allow divorce for anybody else in this country, marriage will be threatened and collapse. We are told the family is a wonderful, natural institution; that marriage is ordained by God and must never be broken up, and that it is [1523] a naturally occurring, immutable fact of human society. How can that be squared with so fragile a notion of marriage that permitting people who have no relationship left to divorce will inevitably cause the consequence of the destruction of the marriage of those who are happily married. I am astonished that people who pretend to be supportive of the family should take so dismal, low and neurotic a view of the institution of marriage. As a strong supporter of the family and marriage I do not share their low and vitiated view of this institution.

However, it is immoral and idolatrous to elevate the institution of marriage as a kind of totem above the welfare of the individual human constituents of that relationship. That is wrong. No institution should be allowed to make abstract claims over and above the welfare of the human constituents of that marriage. There have been appeals to God and to the Pope. I cannot recollect any occasion on which I have found myself in sympathy with the present Pope, so my disagreement with him on this occasion causes me no surprise.

However, the continuing ignorance of the anti-divorce lobby of the Bible is a cause of astonishment to me. Are they unaware that provision is clearly made for divorce in the Old Testament and no prohibition against divorce is made in the New Testament? About half of the Patriarchs were themselves divorced. Where the notion of a biblical endorsement of a prohibition on divorce comes from I simply cannot imagine. Perhaps some of those of the other side of the argument from me might be able to enlighten me, although I am inclined to doubt it.

I do not agree with the Minister — although I suspect it is a tactical attempt to copperfasten the arrangement with Fianna Fáil — when he says the Government wishes to ensure that divorce will not be available on an easy or casual basis. Why not? We are mature adults. If people want to divorce why should they not? There is a proverb — [1524] I cannot remember it exactly — which tells us that a bird in a cage is never free, but if you open the door of the cage and it returns it is forever yours. The notion of marriage as a cage or trap from which it is impossible or extremely difficult to emerge is not one that would encourage most people to engage with its delights.

I consider this referendum problematic because there will be some negative consequences whether or not it is passed. I have expressed my doubts about the framing of this Bill. However, what message would it send to young people if we did not remove the constitutional prohibition on divorce? A substantial number of young people have decided not to get married. I am sure some of them made that decision because there is no provision for divorce at present and they would be trapped in the iron grip of marriage with no possibility of release.

I am convinced that those who promote the idea of the family and seek to prevent the introduction of divorce by all means would, if they were successful, only further undermine the family and the stability of marriage by making it less attractive to young people. This group introduced a Protocol and amendment on abortion which backfired. Every intervention made by this small and unrepresentative group has had precisely the contrary effect to that which they claimed they wanted to see implemented.

I was very pleased to hear on the monitor the contribution of Senator Gallagher, who was the first Member of either House to mention the word “love”. I would have thought that in dealing with the institution of marriage one would address oneself to that matter. I have never heard the anti divorce groups speak about love but only in terms of property settlements, the loss of the family farm and inheritances. What I hear from the anti divorce side of the House is grossly selfish and materialistic. It reminded me of E.M. Forster's wonderful novel Howards End, the film of which was recently shown on television, in which there is an [1525] opposition between the world of personal relations on the one hand and what he calls “the world of telegrams and anger” on the other. The Wilcox family, who represent precisely this kind of materialistic world view, can see marriage only in terms of marriage settlements, and death only in terms of wills and inheritances.

Where is the spirituality we expect from the Christian fundamentalist right? Why is its argument always put forward in this extraordinary and grossly materialistic way? While I am on the subject, while we hear nothing but negative comments on divorce, homosexual law reform, contraception and so on, I have yet to hear a comment from any of these pro family groups about the rights of the victims of child sex abuse by clergy. Of course, that is not confined to the Roman Catholic Church but I am surprised that they never seem to find this a matter of concern.

I do not wish to appear to be taking a sectarian point of view and, unlike the very dismissive comments made by Senator Lydon, I have the greatest respect for those theologians who found it possible to survive in the Arctic intellectual climate of the Roman Catholic Church under the present Papacy and have the courage to place their findings on the record. One such is Fr. Liam Mackey, who said in yesterday's The Irish Times that:

By the Middle Ages, the Church had decided that its government could legislate for marriage and its dissolution. If one of the first causes it recognised for dissolving a valid marriage was the failure of an unbaptised partner to live in peace with a baptised partner, it certainly developed a view of other causes also for exercising its power to dissolve or divorce. The Church lived for centuries, in Ireland in particular, with secular powers which legislated for dissolution and annulment. Indeed, there is nothing in divine or natural law which could prevent such legitimate authorities [1526] from doing for others what the Church claims to do for its members.

I also salute Sr. Margaret MacCurtain, whom I heard on the radio this morning, for speaking out and saying honestly what she believes. She has been a member of the Dominican order for 40 years and believes strongly that divorce is a civil right.

I need not remind the House that this debate occurred on a number of previous occasions in this Chamber — during the last referendum and also during the introduction of these provisions when Senator W.B. Yeats spoke very movingly. I understand that he has already been quoted by several of my colleagues, so I will not quote him extensively. He quoted the then Archbishop of Dublin, Dr. O'Donnell, who said “No power on earth can break the marriage bond until death; that is true of all baptised persons, no matter what the denomination may be”. In other words, the Roman Catholic Archbishop of Dublin at that stage could determine whether I was married or whether I could get out of it. That was very kind of him but I decline his assistance. I am glad that the present Archbishop of Dublin does not, at least publicly, articulate this kind of power.

With regard to the theme of materialism, I note that the Government and its supporters on the Opposition benches make great play of the fact that there will be financial provision to underpin these divorce proceedings in terms of marriage guidance counselling and a range of other services. I am very happy that this is the case. I receive no assistance from the State for my relationship and yet it is able to survive. However, I do not grudge this money, unlike those who objected to the Minister for Social Welfare giving a comparatively decent grant to a group of lesbian women organising counselling and support services. I hope that my Christian friends will take note of my charitable disposition in this matter and feel able to support an application for further funding from such groups. We are all human [1527] beings whose relationships, from time to time, need support and encouragement. I am happy to support heterosexual relationships when they get into difficulty and I have no problem with making financial and social provision for those difficulties.

Deputy Keogh very effectively raised a practical point in the other House, on which the Minister may have a view. She referred to the difficulties of those living apart, particularly those on social welfare, in terms of the housing provisions, in particular. Her point was that if a couple on social welfare or a low income wanted to get a separation and decided to live apart — or to live apart in the same house — they would find it very difficult to qualify for some of the provisions, because if they were already housed by the local authority it would not rehouse them until they became homeless. That might inhibit those in an already disadvantaged financial situation from seeking a divorce.

I welcome the fact that Fianna Fáil has taken a very responsible and constructive attitude to this matter. However, I had to indulge in a wry smile when I read Deputy Woods' contribution in the other House where he said that Fianna Fáil has been entirely constructive on this important issue since it was raised in the 1986 referendum. That was a rather hollow, ironic and almost bitter laugh. I was also mildly entertained with similar comments made by Deputy O'Rourke when she remarked that at the time of the last referendum those in favour of divorce were given a halo, whereas those against divorce were demonised in some way. My recollections of 1986 were the reverse.

I give a very qualified welcome to this legislative proposal. It is, perhaps, the best that could be done. It is certainly not perfect. However, as I remarked earlier, as I do not have the direct access to the godhead that some of my colleagues purport to have, I am at least in touch with reality. In view of this, it is appropriate to say that I am sufficiently in touch with reality to accept the [1528] Government's position, especially having monitored the opinion polls and so on, that this is about as much as the people want at this moment and this is the most practical proposal that has a reasonable chance of success.

However, I regret that this is the case, and I regret that I have heard many valued colleagues in this House and in the other House say openly that the reason these terms must be inserted in the Constitution is that the people do not trust the politicians. That is a frightful thing to say. I hope it is not true. My considered view, having been in this House for eight years and having watched the activities of both Houses and the work done by my colleagues, is that our politicians deserve, and are entitled to, the respect and the trust of the people.

It is clear to me that many Irish people are immature in their view of marriage or allow themselves to be portrayed as so immature as to believe that the permission for divorce for a small number of people will destabilise their marriages. I am sorry that we should be so immature, and that we should be so immature in our view of our politicians. I strongly hope that this view will change, and change as a result of leadership given by Members of this House and of the other House.

Mr. O'Kennedy: I will be supporting this Bill as a democrat because, as the Constitution says, it enables the people from whom all power derives, to decide on this fundamentally important issue. I will be voting “no” in the referendum which will be effected as a consequence of this Bill. I propose to give my reasons in what I hope will be a balanced and reasonably calm manner without any implication that those who have another view are guilty of male fides, intolerance, bigotry or anything else. I share the view expressed by the Minister and many others that this debate should and must be conducted in a calm and reasoned manner.

I have heard from time to time, although not from Members of the [1529] House, that people such as myself, who are known to have views of the nature I am about to express are members of this or that organisation. I wish to declare at this point, though it should be unnecessary, that I am not now, and never have been, a member of any of these organisations — Opus Dei, the Knights of St. Columbanus or any other group. I am not a member, nor have I been of any lobby group, however valid or legitimate their instincts and reasons might be. In saying that I am not a member of such groups or organisations I am not implying that those who are members are in any way trying to influence, in a wrong or unacceptable manner, the development of our society. Society must be big enough to accommodate the views of all sides of the spectrum.

However, I wish to declare a fundamental interest as a husband, a father and a public representative who is concerned about the balance and stability of a society — including the values and qualities of those who have adhered to the traditional norms we are debating here — that I have been privileged, like many others, to grow up in and be enhanced by, although I may not myself have been enhanced that much. I am very anxious that this generation and those who come after me would have the same degree of security and stability in their relationships in marriage, in the extended family, which is a very important element in this, and in the commitment they make in the exercise of rights, recognising that no rights can be exercised without having regard to counter-balancing responsibilities.

There is no such thing in the Constitution or in social behaviour as an absolute right. This is reflected in much that has been said down the ages, not just in Ireland but in all of the cultures and literatures one cares to consider. The best expression of it in the old Irish is: Is é ar scáth a chéile a mhaireann na daoine, we all live in each other's shadow. In a different context, John Donne said “No man is an island”.

The exercise by any individual living in a social community of a specific right [1530] is bound to impact not just on the well being of others but also on the rights of others. When I consider the question of recognising the right, in this case the right to remarry, I have to ask how it impacts on the rights of other people in the community and society who also have rights, including the right to sustain and maintain the well being of family, marriage and children's rights in a happy and wholesome atmosphere.

I am aware that it is not very fashionable these days to express such views. Sometimes we hear the de Valera notion denigrated and ridiculed. However, this, referendum will be decided by the people. As a democrat I will accept and endorse whatever decision they make in whatever role I have to play in society. However, I will not accept, in fact I totally reject as intellectually offensive the notions that are being permeated through the media, especially by individual correspondents in the media — I do not need to name them. I find their views and their proclamations as to what we must do to be intellectually offensive. That individual correspondents would prejudge as enlightened, reasonable or fair, the views that should be expressed, that those of us who accord with their views would be acknowledged as reasonable and enlightened, and those who do not will be condemned as being fundamentalist, reactionary and intolerant, is something I reject. That is a repudiation of democracy and of basic reason and logic.

The old principles of logic always eschewed one specific argument, the argumentum ad hominem, or the argumentum ad personam. This argument focused on the personality and tried to undermine the quality of the argument by saying that the person was fundamentalist, troglodyte, ill-informed, unaware or unconcerned. The discussions we have should at least recognise that the views expressed on both sides should not warrant that kind of intolerant and unfair comment. I am not saying that for myself personally; I am not worried what people say about my [1531] position, but I have seen that type of comment feature freely in our newspapers and in both Houses.

We have been asked to address — as the Minister put it — the fundamental right to remarry. He said, and I am sure he has said it more than once, that people deserve a second chance. I want to analyse what it is we are proposing to do in this legislation. Are we proposing to confine it to a second chance? The palatable way of presenting this proposal is to talk about people who deserve a second chance, a chance for happiness and a chance not to be confined, imprisoned or tied down to an impossible relationship. There are fundamental flaws in that presentation.

The presentation I have heard from Government generally — I do not want to personalise it — is based on that second chance for happiness in marriage. Do we not know and are we not prepared to recognise that this Bill, if it is passed, will provide for a third, fourth, fifth or sixth chance? Is there something so unique about the Irish condition that we are only talking about a second chance, when we know that in every other society where divorce has been in vogue and available for some time the third, fourth and fifth chances become quite the norm in many cases? Let us honestly tell the Irish people that, when we are talking about provisions being made for families and dependants, this may mean not just a second family but a third or fourth family and let them make their decision in the light and knowledge of that information.

I do not wish to get into statistical arguments in such a short time but the indications are that, for those who have been divorced and remarried, the chances of breakdown in second marriages is greater than for first marriages. There is real evidence of that in every country in Europe and in America.

Only this morning, as I watched the ABC Early Morning News, there was a discussion of the social problems in America. They spoke about the adolescent problems and the instabilities [1532] and insecurities of children, and one of the main factors given for these was the high divorce rate. Are we going to be insulated from that? Even though we are anxious to provide for the accommodation of this right, will we not have to face the same consequences of divorce as the people in America, Britain and elsewhere? I am not claiming that we are cloaked with the aura of sanctity or goodness; we have seen enough indications in our society to show that we are not but as legislators we must consider the consequences of the allocation of rights before we start looking within the whole social order.

A right can never be exercised absolutely without having regard to the common good. In this connection, I do not find the Minister's presentation surprising. The Minister will accept that I am not trying to attribute any bad faith to him. When, the State first recognised the family as the natural primary and fundamental unit group of society, — under Article 41.1.1º of the Constitution — it was clear that there was one concept of family in Ireland. Article 41.3.1º states that:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

Marriage and family are inevitably and inextricably linked. To quote the amendment, in the sense the Government is presenting it, as being consistent with this constitutional provision is ignoring the whole text, tone and commitment of Article 41.

The Government, to be consistent, should say that it proposes to delete the provisions of Article 41. By deleting those provisions, it would at least be open, honest and consistent that we also propose to provide for the dissolution of marriage, which is not allowed in the context of the fundamental rights provisions — as they are called — in relation to the family. This amendment, if it is adopted, will undermine the family, the relationships in families and the [1533] stability provided for children and will bring about a major change in our society.

It would do us much good if we asked the views of ordinary people from America, Britain or other countries where divorce has been available for some time and who come to Ireland for holidays or to find a home which is the more acceptable, the stable, happy, social order we have in Ireland or that which they have left behind. I heard a gentleman from Cork on the radio this morning whose parents were divorced and his mother married and divorced twice more in England. He came to Ireland to find a stability he could not find there. The reality is that there is something precious in the stability and security of our social order, our family and the extended family. We would want to be careful before, in the exercise of individual rights, we decide to cast that aside.

The Minister makes the point that we cannot in reason compel people — by and large speaking of the woman who has been either ill-treated, neglected, ignored or abused — to live in a marriage that is no longer a marriage. I have no problem in answering that; of course we cannot. No one should be compelled to be live in hell or in what is no longer a meaningful relationship. No child should be subjected to that kind of tension but that right is available now and the courts consider the interests of children in particular.

Previously, the right of the father was the only predominant right in terms of custody of the children. With the Married Women's Status Act, 1957, we moved along, fortunately, to recognise the equal right of the mother to custody. In more recent times, quite properly, the rights of neither parent is a priority, but the rights and interests of children are taken into account. That already happens in what we call the divorce jurisdiction of our courts with the termination of an existing marriage on the basis of the separation rights that exist in court.

[1534] I find the argument that a couple should be compelled to live together is a specious one. This proposal is not about releasing them from an intolerable burden but rather about the exercise of the fundamental right to remarry. Is the right so fundamental as to be declared an absolute right without balancing it against the common good? We have to consider the common good which creates the conditions in which society will advance in a consistent and happy fashion. Are the fundamental rights of the community at large as stated in the Constitution to be left aside in order, as it is now being proposed, to accommodate the fundamental right of individuals to remarry? I would like to think that when our children enter into a marriage relationship they will have a permanent extended family and all the happiness and security that goes with that, but are those fundamental rights to be cast aside so that the fundamental right of someone to get a second chance is to be vindicated? I would like to think that the society which follows us will have the same degree of stability as we inherited, but if we throw that aside the consequences will be a lot more than any one of us has yet envisaged.

I would like to speak now from personal experience. Perhaps more than any other Member of this House I have lived and worked in areas where divorce is available. As a young graduate in Switzerland some years ago I worked in loco parentis with a distinguished Irish person — whom I do not propose to name — in an exclusive school. Wealthy divorced parents would come to visit their children there and would invite me and the other Irish citizen to dinner in an exclusive hotel.

There were five children, aged eight to 16 or 17, who showed a degree of security because they had developed a relationship with us and we with them. On the occasion of his visit, their father would be reassured to know that the children felt secure because they had a special, quasi-parental relationship with us. This very wealthy person went home having reassured himself that someone [1535] else was discharging his responsibility. On another occasion the children's mother came, in her limo and her furs, and we went through the same routine. She went away reassured that those children were in good hands, and maybe they were. Many years later, those children wrote to me — and they are by no means exceptional — and almost invariably they all married young. They were five children from a very privileged background but within a few short years each of their marriages had broken down. I saw their instability and had tried to act in some way for the parents whose responsibility it was.

When we talk about rights, what about the children in all of this? For instance, where is the provision in the Minister's legislation for a separate representation of the rights of children? I am not just talking about the children of one family, but of a second, third and maybe a fourth. Unless the Minister confines this to the first remarriage then he and the Government must acknowledge that they are opening up avenues to what is happening in other countries. Liz Taylor is often held up as an example of someone who has been married and divorced several times, but she is not all that exceptional in a certain environment. That type of jet-set person becomes a cult figure, but I am not prepared to go along with that notion.

Children have a right to love, affection and care from both parents. If parents decide to move apart the courts should appoint a separate representative of the rights of children. The Minister should consider this. People cannot be forced to live together but their children's rights must be protected in that event because they will still relate to their mother on the one hand and their father on the other. In the case I cited, the children related quite naturally to one or the other as parents.

What happens, however, when the second, third or fourth parent comes into play? Those children are then forced into a relationship which is not a [1536] matter of choice for them. It causes instability and insecurity.

From my experience of living in Switzerland, Belgium, France and Italy I would have to say that the Italian case is very different. I am glad to say there is a strong tradition of the old familia in Italy. Whatever inadequacies the husband may have — or the wife to a lesser extent — with what one might call in Tipperary “a strong old weakness” which is often indulged very kindly in Italy, nonetheless the mama, the familia, the grand-mama and the extended familia is a very secure and stable element in Italian society.

We should be careful of the impression we are conveying that we are only talking about the “simple right” — that term has been used — to remarry. Is it the fundamental right to remarry only once or can it be twice, three or four times? If it is to be three or four times we should be honest enough to say that and make it clear that we are going to have to make provision for that. I have not heard any Government Minister say it yet, but I want to hear it said now. When they vote on this proposal the people should be told that that is, in effect, what they are voting for. Otherwise, you are concealing the reality of what they are being asked to decide upon.

We are also being told that — and I quote the Minister, though I am sure this is part of the general presentation — what we are providing for here is “a limited form of divorce”. What is a limited form of divorce? There can be no way that divorce is limited. Divorce is a final act, it is a dissolution. It is a contradiction in terms to talk about a limited form of divorce. We should avoid using terminology like that which is confusing and misleading. There is no such thing as a limited form of divorce. If the Minister means that there are conditions attaching to the basis on which the court can make a determination on divorce, then that is not a very precise use of language. He is saying that divorce can only apply in certain conditions.

[1537] In this context what is being talked about as being restrictive in practice could turn out to be an unlimited and unregulated access to divorce on demand. I want to illustrate this point for the Minister, who was a practising lawyer and who will know a little about court procedures. I abhor writing detail into the Constitution. I opposed the pro-life amendment to the Constitution as a front bench spokesman and as a member of Government. I appealed not to do it, which demonstrates that I was not a member of any lobby. By introducing such detail into the Constitution the Minister invited legal interpretations which we subsequently found out were not consistent with what the public intended. I say the same thing in this regard.

How much time have I left?

An Leas-Chathaoirleach: You have one minute left, Senator.

Mr. O'Kennedy: People must establish that they are living apart for four or five years under the conditions the Minister lays down. Does the Minister accept that will be the way in practice? Take the case of a couple are moving apart and want to remarry. One is the applicant in the matrimonial court and the other is the respondent. The applicant, through his or her solicitor, says we have been living apart for five years, even perhaps in the same house. The respondent, the father as the case may be, may not turn up. If they have an agreement that they want a divorce, he will not turn up and he will not be there to deny, question or reject the fact. The Minister must know that is the reality.

What will a judge do if he only has the evidence of the wife, who is ex parte, for whom I have sympathy? Will a family inquisitor search the home and invade the most fundamental right we have, the right to privacy? Are we suggesting that the Minister can question or reject such collusion which a court is also equipped to do? Is it not the case that if the parties decide to have a [1538] quickie divorce the only condition they must fulfil is that they must be married for at least five years? There is no other way that a court will be able to reject this in the interests of what seems to be reasonable conditions. I said the same about the pro-life amendment. This will prove to be different from what the Minister or the Government says it will be.

We will deal with some of these points again on Committee Stage. I hope I have made my case without implying that people who proposed this are guilty of mal fides. If I see flaws, inadequacies or matters which are not logical or consistent, then I feel obliged as a parent and as a citizen to point out that the security of society which I have been privileged to experience here should not be easily cast aside in favour of the insecurity which I have not been so privileged to witness in three other countries where I have lived and worked.

Professor Lee: I am afraid I belong to that category identified as “freak” by Senator Norris. However, I will bear that burden if I must. Senator O'Kennedy anticipated with uncanny accuracy and incisiveness much of what I wanted to say, but I will adapt the thrust of my speech.

I associate myself with Senator Magner's expression of regret to the Minister for the unpardonable slur cast on him in Cork. I am not a native of that city, but a proud resident and I was ashamed of the implications of what was said there by, I hope, an unrepresentative member of the Cork public.

I felt saddened that Senator O'Kennedy felt it necessary to say that he was not a member of various organisations. It is deplorable that anyone in this House should feel it appropriate to say something like that. It reminded me of the litany of denials before the house of un-American activities. I fear we have a number of pseudo-liberal McCarthyites prowling around this society. I hope their influence does not grow. I will not say anything about any organisation or [1539] society to which I might or might not belong, except perhaps what Groucho Marx said once upon a time which I will not repeat.

Mr. O'Kennedy: I know this has been said by individual Members in the Oireachtas.

Professor Lee: It is deplorable that any individual Member should feel it necessary to say so. I am not remonstrating with Senator O'Kennedy.

Senator O'Sullivan is not here, but if I hear a reference once more to the famous de Valera quote about dancing at the crossroads, I will explode because he never said it. Why we deem it necessary to impute it to him and why it is necessary for us to want him to have said it is an interesting question in contemporary history, but it does not add to our understanding of Mr. de Valera.

Mr. Magner: It is a good story.

Professor Lee: Yes, but we are searchers for wisdom, knowledge and truth in the vineyard of the Lord.

I approached this question when it first came before the Houses of the Oireachtas with, as I hope I approach most questions, a reasonably open mind and I was prepared to be convinced of the case in either direction by the quality of the arguments advanced. I bring some ideological and emotional baggage as most people do. I believe in the general right of individuals to maximise their welfare, but I also believe — Senator O'Kennedy said this better than I can — that all individual rights are contingent on everyone else's individual rights. Civilised life depends on a constant series of judgments about how best to balance conflicting rights. The problem with this proposed legislation is where to find that balance. My inclination is to vote against this proposal, although I am prepared to be convinced by arguments to the contrary if they can be found between now and voting day.

[1540] There is no difficulty in stating the principles I have mentioned, limited as they are; the difficulty is in applying them. I will try to take what I understand to be the main arguments concerning the proposal and deal with them as best as I can from my perspective. It is difficult to deal with a number of them and with any which depend on evidence, because there is little hard evidence about many of the issues. If we want it, we should not look for it in the Oireachtas Library. It is impossible for Members of the Oireachtas to construct an informed perspective on the issues that arise under this legislation on the basis of what we have allowed the Library to procure in terms of relevant literature and information. We do not have Northern Ireland or UK censuses or Eurostat, which we gave up buying a couple of years ago because we could not afford it.

I am aware that wildly conflicting statistics are cited about different countries at different times. It is extremely difficult, when we do not have the data convenient to hand, to do adequate research. I am prepared to have it pointed out to me that my understanding of some of the data is wrong, if it is possible to point it out, because I base my arguments on data. It is an old failing. The arguments may be wrong but I hope the data, at least, is right. I will refer to some of the arguments advanced by Senator O'Toole. Senator O'Toole made a very powerful presentation. I disagree with some of the points he made but I wish to express my admiration for his presentation before I do so.

Let us take a case where a couple cannot bear the sight of each other. Partnership has broken down irretrievably and they have a right to a second chance. I accept if a marriage has broken down irretrievably that, other things being equal — we will come back to that in terms of the wider connotations — there ought to be a second chance. However, here I differ a little from Senator O'Toole's emphasis. I do not want to use derogatory language if [1541] I can help it. A second chance is much more important for the “innocent” partner than for the other.

Some marriages will break down because both partners have more or less equal responsibility for the incompatibility. Others break down because one partner simply cannot be lived with. Where there is a case of physical brutality or psychological brutality I have very little sympathy for the idea of giving that partner a second chance. I know that in practice it is virtually impossible to differentiate in these matters, but while the second chance for the innocent partner is abstractly and objectively highly desirable, I question giving the other party this right. When we talk about 100,000 broken partnerships I do not think immediately of 100,000 wronged individuals, even though many of them will be. That may seem a callous way of approaching things but it is realistic in certain respects.

Senator O'Kennedy mentioned the question of second marriages. I have not heard all the debates in both Houses but I have read as much as I can. A number of second relationships work out very satisfactorily, thank God. I am probably defying all the theological proprieties in thanking God for that. One would wish every second relationship success. There was, however, an assumption in the Dáil debates that second marriages are somehow bound to be blessed. One Deputy thought that a second marriage would help children resume normal development without the risk of turmoil and violence — not just without turmoil and violence but without even the risk of it. There is no way one can guarantee that a second relationship does not include risk of some sort.

One of the most chilling sentences that I have read on this subject comes from Divorce? Facing the Issues of Marital Breakdown, edited by Mags O'Brien. This is a pro-divorce publication. On page 43 it states:

Studies carried out in the USA indicate that adults who remarry experience a great improvement in [1542] well-being for some time — despite the fact that the eventual divorce rate for second marriages (60 per cent in the USA, 50 per cent in the UK) is higher than that for first marriages.

I am not of course saying that this will be the case in Ireland because our legislation will be different, but in terms of the invocation by many people in this House and the other House to face the fact of broken marriages — and I accept that marriages break down — I am surprised at the ease with which the assumption is made that a second relationship will somehow almost by definition solve those problems. I do not know how we legislate for that. I am not raising red herrings or hares here, I am simply saying that when one looks at the total divorce situation in those countries for which the most comprehensive statistics exist, the second chance of happiness will work for some — I wish it would work for more — but it is by no means guaranteed to work for even the majority if this experience is in any way replicated in Ireland.

In some ways the only way you could be confident of success is if the second combination were together for several years before they actually got married and had decided that they were compatible. That is not an arrangement which is at least legally permissible in this country, either now or under the proposed legislation, though it might be much more sensible in some respects. I am probably now defying every regulation of Church and State in sight. However, it is the only way, it seems to me, one can do it.

When we are talking about confronting reality, let us be clear that we are confronting the reality of breakdown now, with the subsequent reality of potential breakdown in the second relationship also and that we are not confronting the acknowledged extreme horrors of breakdown now with an idealised image of what will come next. Obviously, it may work for individuals, but whether it works in general is questionable.

[1543] The question of children is central for many of us. As far as I am concerned it is the central issue. In this debate it is sad to see that we are already tempted to use children as debating points, almost as if we were in a custodial battle for them in a divorce situation. I have no doubt it will get worse as the debate continues. I have tried to study the psychological literature as best I can, as has Senator O'Toole — it is very difficult to find adequate literature in this country — and it is very difficult to find firm conclusions about virtually anything. All we can say definitely is that there are severe problems. They may be more severe in some cases, in the case of breakdown rather than in the case of divorce as such.

If I understood Senator O'Toole correctly, and he will correct me if I am wrong, he made an assumption which those of us on the opposite side are in danger of making on that side, that because there is not the data on the relative consequences of breakdown and of divorce, it must either be more or less the same or all right. He urged the Minister, and the Minister nodded vigorously in response — I was watching carefully — to make that point to the country at large during the course of the debate. The only point one can make, at best, is that we simply do not know. If that was the Senator's point I agree entirely with him. That leaves it to each of us to bring our personal experience, which will vary widely depending on our own home life, on our observance of the consequences of divorce.

We have even less knowledge of the impact of remarriage on children, and this is for me the crucial point, because this referendum is about remarriage, not separation or divorce as a legal stamping of a separation. I am prepared to accept there are exceptions, thank God, but I find it very difficult to believe that as a general rule remarriage adds to the welfare of the child of the first family, for a whole raft of psychological reasons. I am not a psychologist; I am simply an ordinary observer, as we [1544] all are. But let me continue that quote from page 43 of Divorce? Facing the Issues of Marital Breakdown.

Preadolescent boys often appear to do better with a male stepparent than they did living with their mother alone, [I do not know how often “often” is, but it is there, this is making the case for divorce and remarriage, obviously] but girls, particularly those who are emotionally close to their mothers, can react badly to the intrusion of a stepfather.... The fact that the least positive outcomes for second marriages occur where both partners have offspring from previous marriages is an example of how deeply entangled are the lives of parents and children.

I am prepared to accept that as a reasonable statement of the complexity, the uncertainty and the difficulties which are likely to arise. It is a matter for individual judgement whether those difficulties are worth risking in the current context, whether the risk outweighs what we know of the reality of trauma in the case of some breakdowns.

Breakdowns occur in very different ways and there is some assumption in some of the rhetoric about breakdown that it is all a result of domestic violence, screaming matches, that it is all horrific, that there is always a traumatic impact on children, that they are fully aware of everything going on. I want to see these aspects explored in much greater detail than the simple rhetoric on one side or the other we have heard so far. We have not done the children of this country justice in the mechanistic rhetoric we employ in this debate, inadequately supported by any type of research on the consequences for them. Even in terms of the international data for Ireland, we find that those of us who are ideologically on one side or the other set out to discredit whatever study comes out with the wrong set of conclusions from our point of view. That seems to be an extraordinarily casual and fragile basis on which to embark on [1545] a leap in the dark in terms of the consequences for our children.

As regards the wider impact on society, I take that at two levels. First, there is the impact on other marriages. There is a view that divorce will have no impact on other marriages and that they will be so securely grounded that it is an insult to assume divorce will weaken them. There are three types of marriages. There are blissfully happy marriages where there has hardly been a cross word for 50 years, and thank God for them. I suspect there are not very many, but I am prepared to accept they exist on hearsay. There are marriages where there is nothing but cross words, and I am in favour of separation in those cases. I suspect there is a large number of marriages in between which have ups and downs, good and bad periods and where, if divorce is available, it will feature more prominently in the mind of one or other or both partners as a possible solution to their difficulties and weaken their resolve to work through them. I will not go on about that because I probably sound like a preacher, but I do believe in human nature.

We all succumb to the possibility of temptation. I would be loth to think that the availability of the right to remarry would contribute to the collapse of a marriage, although in an individual case it might work out better for the individuals involved. I do not believe that can be demonstrated as a general rule.

There has been talk about the danger of a divorce culture and the four year requirement, which I do not believe will stick. I agree with what Senator O'Kennedy said about that. We should take it that it is there to try to arrest the threat of a divorce culture. We are also assured that a divorce culture is not likely in Ireland because our culture is closer to that of Mediterranean Europe — to Catholic Iberia and Catholic Italy — as was mentioned in Dáil speeches. I am puzzled by the psychology behind much of this.

It is fair to say that many of those supporting divorce welcome — some [1546] actively work for — a weakening of the role of religion in our society, a weakening of Catholicism in general and the Catholic Church specifically. At the same time they invoke the ethos inherited from those values as our main bulwark against a divorce culture. It seems there is a contradiction. Maybe it can be resolved or perhaps I misunderstand the situation, but I am not convinced by the logic of that presentation. I am even less convinced after hearing Senator O'Kennedy refer to Italian divorce statistics.

I have been probing the statistics as best I can and it is true that the Italian and Spanish rates of divorce are far lower than in northern Europe. The Portuguese rate is double the Spanish one. Catholic Austria, which was cited by the Minister in the Dáil, has a divorce rate five times that of Italy and two thirds that of Britain. It has one of the highest divorce rates in continental Europe. I do not believe the Catholic religion on its own, particularly in its current condition in Ireland and the direction in which things are going, will suffice to maintain the ethos which is resistant to a divorce culture.

From where do get our ideas, attitudes and influences? We are told the American and British situations are much less relevant to us because we are not part of their culture but of Mediterranean Europe. We hear little about Mediterranean Europe in this country. We may be returning to the earth mother from whom we came a few thousand years ago, but apart from Serie A and where Real Madrid or Barcelona stand on the Spanish tables, that is the impact of Mediterranean culture on us.

We are part of the culture of the English speaking world and the television world of Anglo-Australia and America. The values, attitudes and assumptions seep consciously and unconsciously into our mentalities and psyches. That is from where the entire pressure is coming influencing the way we think. Most of the time we are not even conscious of it because it is a part of us. If it does not come directly, it [1547] comes increasingly mediated through people who share many of those values in the media.

I am not for one moment engaging in media bashing. A lively and alert media is an integral part of any healthy democracy. However, where reporters and columnists are virtually 100 per cent united in their assumptions about the type of society we should be, which is a modern pluralistic one — I could speak at length about the meaning behind those words, but I will not — then that is where the influences will come and be mediated through. That is what we will be exposed to not Spanish, Italian and Mediterranean culture.

Many of those who welcome the idea of Ireland as a modern, progressive, enlightened and pluralistic society would be horrified at the Italian and Spanish analogies. They are fuddy-duddy backward, pseudo peasant, ex-Catholic countries from which we have nothing to learn. Let us not delude ourselves that somehow we do not belong to the media world of Anglo-Australia and America, countries with the highest divorce rates in the industrialised western world. I do not need to assert that in great detail.

Senator Magner rightly spoke about the media. Miriam Lord in yesterday's Irish Independent said quite bluntly that the journalists attending the anti-divorce group meeting were a million miles away from their value system. They are perfectly entitled to be, but we will not get anything like a balanced perspective on this issue or others. The “Prime Time” programme on RTE last Thursday was certainly unbalanced — it was also ignorant but that it is different matter. So passionate the convictions of journalists — they are entitled to them — it is unfair to ask them to present balanced programmes rather than having the advocates of both sides present their propaganda and let the public decide.

We will face relentless and remorseless pressure as to the type of society we should become, both in terms of the divorce issue and all the attendant [1548] implications of that for the foreseeable future. To be fair to Senator Norris, he artfully put the point as to why we want a four year barrier and why slow down the march of progress and pander to the immature primitives incapable of appreciating where the light really lies. Not only Senator Norris and the media in recent months, but an article in The Irish Times a couple of months ago asked how could marriage be for life and how could anybody in this day and age be expected to live with anybody for 50 years and advocating explicitly the idea of entering marriage on the assumption that it will break down. We are told that most of us enter marriage — presumably we did — on the assumption it will last.

We must take cognisance of the direction at least some influential thinking is taking because of access to the public mind. If Senator Norris is correct in saying that many young people who now cohabit outside marriage are doing so because there is not divorce, it indicates that the introduction of divorce will not in any way resolve the problems of marriage but it will spread the idea of the divorce culture faster and further.

These things can be argued, I am prepared to accept that. I hope I have said enough to indicate the basis for my uncertainty and unease about how little we know about the direction we are being asked to leap in this particular case and that is acknowledging the existence of horrible individual cases which can be taken care of by separation and that some remarriage would certainly contribute to the happiness of the individuals involved. Where does one come down as regards the problem of balance? I would be prepared to be persuaded by informed argument that the Government's proposal is a solution but I do not see informed argument in the Government's contribution to the debate.

I see assertion sometimes masquerading as evidence, which it is not. I see a great deal of repetition and I see hope that things will work out. However, I see essentially an ideological decision which [1549] is not based on evidence about the implications for Irish society. If that evidence can be produced in the short time available between now and the referendum I would certainly consider it.

I fear — this is nothing against the Minister personally — that what we see here is not just continuity in the way we conduct policy in this country. We are still wallowing in self delusion. Even while we invoke the argument from reality we have always had a substantial level of self delusion in the way we confront our affairs. Now we persuade ourselves that we are enlightened, but we are just as self-delusory but simply in a different direction. For those reasons I remain unconvinced by the Government's case.

Mr. Quinn: It is difficult to follow Senator Lee. He covered a wide area and it would be folly of me to attempt to do the same. I will concentrate on a small number of topics to which the Minister may give consideration.

The first issue I wish to address is whether such details as those contained in the amendment should be in the Constitution. At first sight I am not keen on a constitutional provision containing such details as four years and five years. These are matters that would normally fall to be included in ordinary legislation. In general I subscribe to the notion that the Constitution should be a framework — in essence bunreacht means a fundamental law — rather than a piece of legislation. The people set the framework and the legislators operate within that framework.

In this case, however, the detail incorporated into the constitutional amendment appears to be appropriate. The Government suggests that without these details there would not be sufficient support from the electorate to pass the amendment. That has been condemned today and in the other House as political expediency. I am not so sure that is how I would look at it. Senator Norris claimed that those who hold this view are a small, unrepresentative, antidemocratic voice. The point is that a [1550] large proportion of the electorate does not want to give this Legislature the freedom that would be implied in a less restrictive amendment.

There is a large difference between the way the electorate is divided on this issue and the way the Legislature has been voting on it. If there was a vote on the issue, the result would be close to 164 to two in the other House and 58 to two in this House while in the country we may have two thirds for and one third against. On polling day we will see that there is at least a substantial minority of people who will vote against the amendment. When these people look at how these Houses vote on the same issue, they see an overwhelming vote in one direction. The number of legislators voting “no” is tiny; the vast majority are going to vote “yes”. That disparity is one cause of the distrust many people have for this Legislature and is why they are reluctant to give the Oireachtas a carte blanche on the details of divorce legislation.

A large number of people do not trust the legislators on this issue. They believe that the constitutional amendment will turn out to be the thin end of the wedge and that legislation could sweep away the restrictions with which we started. They fear that the restrictions could be a bargaining chip between political parties when negotiating a coalition at some future date and could be swept away purely as a matter of expediency. It is not unreasonable that some people are reluctant to cede that freedom to Members of the Oireachtas. I have come to the conclusion therefore that, however messy it may be from a constitutional point of view, a detailed amendment such as that proposed by the Minister is probably the best way forward.

We must move forward. The total ban on divorce as enshrined in the Constitution is overkill. However distasteful many of us may find the concept of a divorce, most people will admit that the absolute ban on divorce creates more problems and human suffering than any of the available alternatives. A ridiculous [1551] consequence of the present position is that someone who gets a church annulment and remarries in the eyes of the Church is a bigamist in the eyes of the State.

I know one man who married at the age of 23 and four weeks later, just two weeks after returning from the honeymoon, his wife went home to her family. I saw the trauma he experienced in the following ten years. He is now in his mid thirties. He got a church annulment and has since remarried. I do not know the details but I suppose that in the eyes of this State that is a bigamous marriage.

Mr. O'Kennedy: He would appear to qualify for a decree of nullity in the courts. The Senator's point is still well made; we should have a statutory function.

Mr. Quinn: The State has not given people in such situations the opportunity to divorce and the right to remarry. Are we telling such people that it is hard luck but we will not pass a law that will enable them to have a future? That man has successfully remarried but it seems a shame that we could have deprived him of a human right. That is what can happen when there is an absolute ban on divorce and it is evidence enough to me that we must find a better way. The ultimate irony is that we recognise foreign divorces but not church annulments which happen within our own jurisdiction. This surely makes an ass of the law and it is something we cannot defend.

While supporting the need for change, I have a small number of reservations about the way in which we are proposing to effect that change. Some of them have been touched upon already. I do not want to associate myself with many of the wild statements made in the national debate over the last few weeks and some of the even wilder statements that will probably be made in the next few weeks. I will concentrate my attention on one issue on which I would like [1552] some reassurance from the Minister. It is the thorny problem of living apart.

We must examine what we are doing. We must face up to the fact of irretrievable marriage breakdown. We want to put in place a system that will acknowledge that unfortunate act rather than sweep it under the carpet. On the other hand we do not want the new system we create to encourage the incidence of marital breakdown. We do not want to encourage people to take their marriage vows lightly. We do not want to make it so easy for people to divorce that they could do it on a whim. Senator Lee spoke about the ups and downs of marriages and made the point that during one of those downs a couple might decide not to try any more. It is to reconcile these two worthy principles that we get involved in restricting divorce to those whose marriage has, without any shadow of doubt, irretrievably broken down. It is at this point that the concept of living apart becomes relevant.

If people have been living apart for a number of years there can hardly be any clearer evidence of marriage breakdown. Living apart voluntarily is the negation of all that marriage means and living apart for a considerable time — in other words, for the number of years which the Minister has included in this legislation — is surely conclusive evidence that the marriage breakdown is irretrievable.

On the face of it, living apart for a certain number of years seems a suitable condition to write into the new legislative framework but it is not as simple as that. For instance, there are many couples who simply could not afford to live apart. Their marriages have broken down but they continue to live under the same roof for economic reasons. It would clearly be iniquitous if we introduced a system where only the well-heeled could afford divorce. I take it that it was a compassionate response to such situations which encouraged the Minister to say that living apart need not necessarily mean physically living apart. Introducing the Bill in the other House the Minister said it was possible [1553] for there to be two households under one roof. The term “living apart” has a clear and settled meaning in law and I am satisfied that the courts will follow it.

Mr. O'Kennedy: They can only do it on the basis of the evidence produced.

Mr. Quinn: That is exactly the point. I find it hard to see how this looser concept of living apart could actually be made to work in the highly logistic framework which will result if this amendment is passed.

Let us examine two possible scenarios where difficulties could emerge. Let us imagine the case of someone who wakes up one morning and finds they have been divorced against their will. They find their spouse claims they have been living apart for the number of years required for a divorce. How does either party prove in the courts that they were living apart? If it was a question of physically living apart, the proof would be easily found. How do we begin to address the situation of mentally living apart? In the old days in Britain, one had to prove adultery to get a divorce and people often staged adulterous situations for the benefit of a private detective who spied on them. As everybody knows, one cannot prove a negative. One cannot prove that something has not happened. Are we going to have evidence which involves dragging children into court to testify that their parents have not been sleeping together? None of us would want to create a situation where that sort of thing happened and that is what concerns me. It is a deep concern and it has been expressed in other ways here.

The other scenario is equally disturbing in a quite different way. What is to prevent a couple who have had a flaming row from deciding to finish the marriage then and there? What is to prevent them from colluding together to represent that they have been living apart mentally for the requisite number of years? Surely, if this is possible, it drives a coach and four through the [1554] whole concept of putting a time span on the marriage breakdown. We have a dilemma here. If we insist on legal style proof of mentally living apart, we are going to get into very murky territory. On the other hand, if we do not insist on those proofs, we are opening a backdoor to “quickie” divorce, which is what the Minister intends to avoid. I suggest such a situation will actually be created by this and nobody wants that.

I have huge regard for the Minister's ability to think this through, as he thought through the legislation of the last number of years. He will understand the nature of my personal difficulty in supporting that aspect of it. It is a difficulty which has been expressed by others too. If there is a way around this problem I would be happy to listen to it; I would be happier to be convinced. Many people throughout the country will be looking for reassurance on this particular point. I look forward to the Minister grappling with it and putting our minds at rest.

Ms Kelly: I have great faith in the common sense of the Irish people. All the Senators' fears about the problems which are suddenly going to emerge once the referendum is passed are groundless. There is imbedded in all of us a strong belief in marriage which will continue whether or not there is legislation for divorce. In fact, the legislation will only affect quite a small, but significant, minority of people who have been totally discriminated against.

It has been repeatedly said that we are talking about the right to remarry and not the right to separate. The right to separate has always been there. It was recently passed into law but separation was a fact of life even before that. If we are honest, we can see it in our families. We see cousins whose husbands have, mar dhea, gone to England to work for long periods and come home only on holidays. If that was not divorce, what was it?

From my family's point of view, I am glad there is divorce in other countries. My sister is married to a man who was [1555] divorced in England. He worked abroad for many years and he and his wife grew apart. My sister is happily married. She is not happily married in Ireland because if he was an Irishman, it would not be regarded as a legal marriage in Ireland. She could marry an Englishman whose marriage had broken down. That is all right but she could not marry an Irishman whose marriage has broken down. That would seem to be a lot of clap-logic. We recognise foreign divorces and church annulments but we blanche at the thought that we could have the civil power to dissolve marriage.

We think that we in Ireland have a monopoly on marriage, faithfulness and fidelity, yet I have friends in France, who are devout communists and atheists, who have one of the strongest marriages I have ever seen. Their commitment and fidelity to one another is an example to many of the Irish couples who go to France thinking these people are Godless and have no standards. Even in the face of severe personal tragedy when their son was killed in an accident, they stayed together.

The commitment of one human being to another does not really need either the sanction of a church or the blessing of law. It is something which simply happens. Likewise, a union will break down whether there is a church or legal sanction. We cannot legislate for marriages to stay together. We can only hope that when two people get married the commitment is for life. Few people honestly enter into marriage with the view that it will last for one, two or three years. In such cases, it is not marriage. It is not a commitment. It is not what we mean by marriage.

For those whose marriages have broken down and would like a second chance, it is only fair and just that we give them that opportunity, and that is what we are attempting to do now. We have no guarantee that the second relationship will work; it may not. We have no crystal ball. We cannot gaze into the future and predict what will [1556] happen. Senator Lee would like us to be able to do that and say with certainty what will happen. We do not know what will happen in ten or 15 years time. We must have faith in the innate good qualities of Irish people, their ability to commit to one another and believe in the idea of marriage.

Most particularly, marriage provides emotional security for children, for whom Irish people have a deep seated love. The welfare of children will be our primary concern with or without divorce, whether they are the offspring of a first marriage, a second marriage or were born outside marriage. Our society must be concerned with the welfare of children. Recently there has been much reporting about children who have not been well treated by those in loco parentis. At the root of our concern about this issue and about drugs and almost every social ailment is our love for children and our desire that they be protected at all times.

The Minister is to be congratulated that since he took office he has painstakingly covered many aspects of the debate and closed several gaping loopholes. The Government, by increasing children's allowance and family income supplement payments, have accepted that families need financial as well as legislative underpinning. That should not stop when this debate is over; we should continue to look for ways financially, emotionally and legislatively to support Irish families and children.

Minister for Equality and Law Reform (Mr. Taylor): I thank all the Senators who contributed to this wide-ranging debate. All the contributions were directed to the important subject matter which affects the lives of so many thousands of Irish people. I express my appreciation for those who took the trouble to research their contributions so widely.

Some contributors said there should be no divorce and at least one Senator was in favour of “quickie” divorce. The latter view has some measure of support; I participated in a radio 'phone-in [1557] programme in Drogheda recently, during which one woman said we should have a postal system of “quickie” divorce where one pays money to obtain a dissolution, as Princess Margaret did. All ranges of opinion are represented not only in this House but in the country. It confirms me in my view that the line adopted by the Government is right. I can assure Senators it has been carefully considered in all its aspects.

I will try to deal with at least some of the points raised during the debate. It has lasted for several hours, many Senators have contributed and I do not undertake to deal with all points raised. I imagine that at this hour Senators would not want me to do so.

We are dealing with the position in which we find ourselves. One option is not to deal with it — to continue as we have before, to let the evolutionary process which has taken place year upon year and decade upon decade take its course and choose to ignore and not to address those issues. That is not the option this Government decided to follow.

When we examined the day to day lives of Irish people, we found that over 75,000 people were in broken marriages. That is the confirmed statistical figure but the number may be higher. Many of these breakdowns have persisted for years. In some cases both parties to the breakdown are in second relationships and the marriages have ended in everything but name, perhaps 25 years ago.

That leads me to a point raised by many Senators as to what impact the introduction of divorce would have on marriage, because they argue marriage is for life and the potential for divorce would adversely affect all marriages. My response is that it is easy to say marriage is for life and it is undeniably true that most marriages are. The appreciable majority of Irish marriages are for life and we should be thankful for that. However a significant number of marriages are not for life. Perhaps someone is prepared to give the designation of marriage to a couple who split 20 years ago, have had no communication during [1558] that period and have formed other relationships but I am not and any objective person would say if that is a marriage, all that is left of it is the name. There is no reality to the suggestion that this is a marriage because it is dead and gone.

The present position is that the law does not guarantee all marriages are for life; it cannot and does not purport to do so. As it stands the law purports to retain the titular evidence, the nominal description of an association which no longer exists. If the law provided that it was compulsory on everyone who married to live together for the joint lives of both, one could say there is a guarantee by the State through the law that all marriages are for life. The law does not do that; people may leave one another and the law allows that. It happens all the time and in at least 75,000 cases. There is therefore no guarantee by the law that all marriages are for life.

Mr. O'Kennedy: Did anyone ever suggest there was?

Mr. Taylor: Yes, people do.

Mr. O'Kennedy: A guarantee?

Mr. Taylor: The suggestion is made that at present there is a legal back-up for the lifelong existence of the marriage contract; that two people enter the contract and the law supports and guarantees that. I do not say Senator O'Kennedy made that suggestion — if he did not, that is fine — but it is made. The nuance is then put abroad that to interfere by introducing the concept of divorce undermines the legal principle that marriages are and must be for life. That is not so as we know.

That position must be addressed; too many men, women and children are involved for us to close our eyes to it. It was suggested in 1986 by the anti-divorce campaign that the prohibition of divorce preserves the institution of marriage and contains marital breakdown; in fact, the number of marital breakdowns have [1559] more than doubled since 1986. That is a false assumption. We do continue——

Mr. O'Kennedy: They are saying that the law guarantees——

Mr. Taylor: That is what they say.

Mr. O'Kennedy: It is not the same.

Mr. Taylor: That is the nuance they have put about. They say that marriage is for life and that can be supported legally.

Mr. O'Kennedy: That is not what they are saying.

Mr. Taylor: Well, then I do not know what they are saying.

Mr. O'Kennedy: Let us be precise.

Mr. Taylor: If they are not saying that, I do not know what they are saying. That is the information they have put out. They say that the law backs up that contractual position.

Mr. O'Kennedy: It supports it. It does not guarantee it.

Ms Gallagher: Splitting hairs.

Mr. O'Kennedy: It is not splitting hairs. However, I like precision.

Mr. Taylor: I am happy if Senator O'Kennedy agrees with me on that point. All I am saying is that they have put that suggestion abroad. I am not inferring that Senator O'Kennedy said it but it has been put abroad. That is a fact. The Government has decided that it wishes to help people who find themselves in the position of being married in nothing but name, because to do that is what Senator Lee described as self-delusion in another context. Senator Lee stated that the Irish people very often have a temptation to indulge in self-delusion. To give the title of a marriage to the situation of people who [1560] have been apart from one another for a long time would be self-delusion.

I believe that the Irish people do not wish to accept that situation any longer. Therefore, the absolute prohibition contained in the Constitution should be deleted and something put in its place. The question then arises as to whether it should be put into the Constitution which has also been the subject of much debate in the House today.

I wish to make a comment on the amendment tabled by the Progressive Democrats. It was not always the view of the Progressive Democrats that the conditions for divorce should not be written into the Constitution. They have changed their minds on that issue and are entitled to do so. There is nothing wrong with that. However, their position in 1986 — as enunciated by the then leader of the Progressive Democrats, Deputy O'Malley — was that it was appropriate to put the conditions for divorce into the Constitution. Deputy Harney, the current leader of the Progressive Democrats, was present at the press conference when her party supported that proposition. Deputy O'Malley enunciated the reasons by which he formed his view that the conditions should be written into the Constitution at that press conference. They were well-reasoned arguments and are as valid today as they were then. However, the Progressive Democrats have changed their views on that issue.

The position taken by the Progressive Democrats is rather strange in a number of respects. First, they have complained that the Government is introducing this proposal to write the terms into the Constitution. However, the Progressive Democrats where themselves in Government for quite a number of years and did not bring forward a proposal for a referendum on the issue of divorce. They had the opportunity, while in Government, to bring it forward in one form or another but did not do so. This Government has seized the hot potato of divorce and is bringing it forward for decision by the people. We are not talking about what should or [1561] should not be in the Constitution, we are actually bringing forward a referendum.

The other strange thing about the position taken by the Progressive Democrats is that the amendment tabled by Senator Dardis deems it inappropriate that conditions should be written into the Constitution. The amendment tabled on Committee Stage in the Dáil by the Senator's colleague, Deputy Keogh, provided that:

Notwithstanding any provision of this Constitution, the State may by its laws provide for the grant by a court designated by law of a dissolution of marriage where it is determined by the court in accordance with such laws that such a marriage has irretrievably broken down and that such a dissolution would be just.

It seems to me that any fair assessment of that amendment would involve writing two very vague and critical conditions into the Constitution. There seems to be some confusion on the part of the Progressive Democrats with regard to that issue. I am sorry to put it so bluntly, but that is the way I see it.

In relation to the general question of whether it should be included in the Constitution——

Mr. Dardis: The confusion lies more with the Minister than the Progressive Democrats.

Mr. Taylor: The essence of a written constitution is that some countries have a written constitution and others do not. It has to be determined what type of material is appropriate to a written constitution, as opposed to what is appropriate to primary legislation. It is fair to say that those items of law considered fundamental by a society or nation are appropriate to be included in a constitution.

Mr. Dardis: Agreed.

Mr. Taylor: Fundamental matters are appropriate to a constitution and these [1562] may vary from country to country. It is my view that in Ireland the question of marriage and divorce, and the basis on which a divorce may be granted, is regarded as a fundamental issue by the Irish people. There is probably no more fundamental issue. The basis on which a divorce could or should be obtainable is of the highest importance to them. It is for that reason, among others, that the Government decided it was correct and appropriate that, on such a fundamental issue to Irish people, the Constitution was the proper place for it. There is no doubt that it represents a major change in the development of Irish society compared to the experience since 1937. There has been a total and absolute prohibition on divorce since 1937. To introduce any form of divorce represents a major change in that position.

People think that the issues of marriage and divorce are not fundamental and do not warrant being included in the Constitution. However, they are included in the Constitution at present. The Government is not including them for the first time. These issues are in the Constitution and the Government is proposing a modification of what is already there.

Mr. Dardis: The question is not whether the issues are fundamental but whether the conditions are fundamental.

Mr. Taylor: If the issue is fundamental it consequently follows that the conditions under which it would apply are also fundamental. There are various types of divorce. There are quickie divorces, liberal divorces, easy divorces, divorces which are difficult to obtain. Major differences exist between the views of Irish people on those different categories. I am sure Members will agree that the view of the Irish people towards a quickie divorce regime would be quite different to that of the type proposed by the Government.

A number of Senators raised the issue of the wording of the constitutional amendment. Senator Quinn, in particular, [1563] raised the issue of living apart and I wish to say a word about that. The format of the amendment is of the no-fault variety. That was very deliberate and carefully devised. Every word and nuance was carefully considered and examined with regard to what its effect will be. The Government was concerned to ensure that there would be no quickie divorce.

Senator O'Kennedy and others raised the point as to whether there might be a possibility to use the format of the amendment to obtain a quickie divorce. The question was put as to whether there could be collusion between the parties which would lead to their obtaining a quickie divorce. The answer — which applies to all legal proceedings, not just to applications for divorce or separation — is that in any court case, or in any instance of right being averred in a court case, if people are prepared to commit perjury and give false evidence regarding a particular set of circumstances, there is always the possibility the court can give a wrong judgment.

There was a famous case in England in which, based on perjured false evidence, a man was hanged. That is always a possibility. In all cases the courts rely on sworn testimony. In the overwhelming majority of cases that testimony is honest to the best of the abilities of the witness concerned. If people are prepared to give deliberate false perjured evidence there is a possibility that, based on it, a court may give a wrong result.

Mr. O'Kennedy: There is a probability, not a possibility. If the only evidence before the court is false, is it not a probability?

Mr. Taylor: In this case I would not agree because the wording of the constitutional amendment is carefully drawn up. It says that before the court may grant a divorce the court has to be satisfied that those conditions enunciated have been met. Those conditions are [1564] that the parties have been living apart for four out of the previous five years, that there is no reasonable prospect of reconciliation and that appropriate support provisions have been or will be put in place for the spouse and children. The court has to be satisfied on all of those conditions — they are cumulative.

If a judge comes to the conclusion or is not satisfied, even based on the evidence adduced to the court, then the court will follow the constitutional requirement and not grant the divorce. The court may adjourn the matter and call for further evidence before the court will be satisfied.

Mr. O'Kennedy: How can a judge——

An Leas-Chathaoirleach: The Minister without interruption.

Mr. O'Kennedy: If a judge is not satisfied even on the evidence, if the only evidence adduced is that they are to be living apart——

Ms Gallagher: Let the Minister speak.

An Leas-Chathaoirleach: I must insist that the Minister be allowed to reply without interruption.

Mr. O'Kennedy: I am not making a political point but I am listening to the Minister for Equality and Law Reform making a point in relation to legal principle and procedure which I find is not——

An Leas-Chathaoirleach: I must insist the Minister be allowed to speak without interruption.

Mr. Taylor: The wording of the constitutional amendment has been carefully cast and it has an ordinary meaning. Any Senator can understand it; it does not need a senior counsel to interpret it. It says and means that before the court can grant a decree of divorce it must be satisfied——

[1565] Mr. O'Kennedy: On the evidence before it.

Mr. Taylor: It does not say that. It says that the court must be satisfied that these things pertain. If a witness gets into the box and gives evidence of particular facts, and the judge, having listened to that evidence, is not satisfied or has reason to believe that perjury is being committed or that the whole truth is not being told, the judge must say he or she is not satisfied that the living apart has happened and he or she is enjoined not only by the law but by constitutional law, therefore, not to grant the divorce. No judge could or would do anything other than that if that condition was not met and if the judge was not satisfied on what he or she has heard and had reason to doubt it. That could well happen; it would be exceptional and rare——

Mr. O'Kennedy: It would be exceptional. What contested evidence——

An Leas-Chathaoirleach: This is not a question and answer session. The Minister is replying on Second Stage and I insist the Minister is allowed to reply without interruption.

Mr. Neville: The Senator will have an opportunity on Committee Stage.

Mr. Taylor: We will discuss the matter on Committee Stage.

The question of living apart has been raised by Senator Quinn. The concept of “mentally living apart” is not sufficient to come within the ambit of the amendment. To live apart requires a physical element; the parties must be physically living apart. One cannot be mentally living apart while physically cohabiting with the other person.

In the overwhelming majority of cases the parties will be physically living apart in separate dwellings away from each other. In a small number of cases, “under the same roof” category cases, the question arises of whether it is possible for a couple to be held to be living [1566] apart under the one roof. That concept of living apart is not new to our law or foreign law. The expression is already used and has been a subject matter before the courts since the Judicial Separation and Family Law Reform Act, 1989, was enacted. It is well known to the law; the same expression is used in a large number of common law jurisdictions, including Australia, New Zealand and Canada, to mention but a few. The interpretations are well worked out as to what exactly it means.

The key factor is not so much if the people are under the one roof but if they are living in separate households — not in separate houses but separate households. There will be many cases in which a couple is living under the one roof with their marriage in an extremely difficult situation. There may be violence or other great difficulties. However, that per se does not mean they are living apart. I have made this point before and it warrants repeating. The Government is not about permitting the dissolution of a marriage in difficulty, or permitting the dissolution of a marriage in very great difficulty. The Government is about allowing the dissolution of a marriage that is over, dead and finished, and not today or yesterday but long since, many years ago — in other words, giving legal recognition to what is the fact anyway, whether one likes it or not. It is a sad matter to face, but if the fact is that the marriage is over then the amendment will allow legal recognition to what is the fact.

Mr. O'Kennedy: How is the fact to be proved?

Mr. Taylor: The facts will be proved, as Senator O'Kennedy well knows, by evidence, as all facts in any court case are determined. The case comes before the court, the evidence is given and the judge makes the determination. That is what judges are for. The judge will assess the evidence as to whether a couple has been living apart in separate households or not. The opposite of living apart is cohabiting. If a couple is [1567] cohabiting, even under situations of great difficulty, those concerned would not qualify for a divorce. On the other hand, if they are living apart in separate households they would qualify provided the other conditions are met.

There is an extensive body of law on the interpretation of that subject. It is clear what is and what is not covered. It will not cover an existing marriage that is in very great difficulty. It will only cover a situation where that consortium, that mutual support, that interraction and communication which normally exists in a live and existing marriage has been gone for years past, and the court is fully satisfied of that.

The issue was raised as to whether two people on a whim could raise a collusive situation and that is a possibility. The judges in this country, particularly those dealing with family law cases, have long experience of dealing with them. They have spent many years at the Bar and during that period they have built up a good knowledge of how to assess a truthful witness and when to suspect a witness may be lying or not giving the full facts. I am not saying they cannot get that wrong on occasion, but they are skilled in smelling that out. I am not saying that a witness in any case may not give perjured evidence leading to wrong results — it is a sad fact that that can always happen. However, by and large, as in any other court case, the correct result would be achieved.

The question of children was raised and many of us are very concerned about their position. I was surprised to hear Senator Lee say that he had difficulty finding appropriate literature on the subject of the effect of marital breakdown on children. There is a wealth of literature on the subject and I refer him, in particular, to an excellent article on this subject by Professor Sheila Greene of Trinity College, Dublin, who is a leading authority on the subject. I will arrange to have a copy of her article sent to him as he is no longer in the House.

[1568] Mr. O'Kennedy: Could the Minister circulate it to all the Members?

Mr. Taylor: I will circulate it to Senator Lee and I will refer Senator O'Kennedy to it.

Mr. O'Kennedy: This is a democratic House and not a selective one.

Mr. Taylor: Senator Lee raised the question and said he could not find the literature. I was sure that Senator O'Kennedy with all his expertise would already have this literature, having made a learned contribution here earlier.

Mr. O'Kennedy: I appreciate the commendation.

Mr. Taylor: I was quite certain that a person of his knowledge and expertise, having spoken in the House on the subject, would have the literature. However, if he has not read the leading piece of literature on the effect of marital breakdown on children I will be very happy to send it to him.

The article says in a nutshell that, having examined all the very extensive literature on this subject, there is, as Senator O'Toole pointed out, no evidence that divorce per se has an adverse impact on children. Marital breakdown may well have an adverse impact on children, depending on a number of factors, such as the kind of household from which they come. Many children live with parents who are in intact marriages but where there is violence, alcoholism, appalling tension and horrific conditions. The implication is that living in an intact marriage situation cannot be harmful to children, whereas living in a non intact marriage situation can. Many children leave intact situations where they have been subject to horrific conditions and find harmony in a separated condition. The literature shows that it is a huge relief for many children to get away from an embattled marriage situation.

[1569] We are talking about a child who for years suffered the agonies of an embattled situation while living with its parents in an intact marriage situation. The parents then separate and after four, five or ten years — in which period the position of the child must surely have settled — an application is made for a divorce. Is it being seriously suggested that that final application for divorce per se, when the child's position has been settled and many years have elapsed, has a dramatic effect on the child? The dramatic effect happened during the violence and the separation of the parents. We are talking here about events at least four or five years down the line.

Senator Ross said that if this is put into the Constitution we will create problem for years to come. Such a comment rolls off the tongue very easily but there is no basis for it. He compared it to the abortion referendum position, as did a number of other Senators. That was a completely different basis and is not comparable to this situation. The whole context of the abortion referendum, the conditions which were inserted and how it was done, were quite different. It was a different situation with a different Article and different wording. This has been carefully considered in context and what was to be learned from that incident has been learned. My advice is that this amendment will fit very well in the terms of Article 41 and will provide the relief which is necessary for tens of thousands of Irish people.

Senator Roche asked that we all be calm in discussing this subject. That is very good advice which I will try to follow as far as I can. He said that I should comment on the impact of poverty on women resulting from divorce, which is another of the canards put out by the anti divorce lobby. I have heard various figures mentioned by anti divorce sources in terms of what the taxpayer will have to pay if divorce is introduced, ranging from £20 million to £560 million.

[1570] The fact is that the facilities required to deal with marital breakdown are already in place, although we have no divorce in Ireland. However, of necessity, we still had to put substantial assistance in place for the marriage counselling services to deal with the present levels of marital breakdown. We had to put free legal aid systems and increased mediation services in place to deal with the present situation of marital breakdown. We also had to put social welfare programmes in place to deal with desertion and lone parent situations. Those programmes are in place and are operational to provide the necessary financial support for those who need it and have no other means of subsistence. Therefore, the £560 million which has been mentioned is absolute nonsense and has no basis in fact because all the programmes are already operational in order to deal with the existing marital breakdown situations.

The matter has been thoroughly researched in the Department of Social Welfare and, resulting from the guarantees given in the Social Welfare (No. 2) Act, 1995, there will be a very insignificant increase in the social welfare provisions — £200,000 in the first year and £1 million in the fifth year. That is totally insignificant in budgetary terms. The scaremongering of figures between £20 million and £560 million has no basis in fact.

Senators Lee and O'Kennedy asked what guarantee can be given that there will not be second, third, fourth, fifth and sixth marriages. Senator O'Kennedy suggested that the Government was being misleading in its presentation of the case for divorce by insisting on the right to a second chance and ignoring third, fourth and even fifth marriages. I do not wish to be glib but in arithmetical terms, taking the number of years of separation we are talking about into account, that would posit a degree of stamina and persistence which would beggar belief.

Senator Lee asked if we could give a guarantee that the second marriage will work out all right. The answer is no. I [1571] am very sorry, but I cannot give such a guarantee. I would love to be able to give one, but I cannot give it in respect of a second marriage any more than I can give it in respect of a first marriage.

As we find ourselves at this stage of the evolution of Irish society, we are presented with a situation that one in six of marriages that are taking place in Ireland are breaking down. This constitutes a large number of people. They are people we know and they ask us to assist their position at no cost to anybody else. We have two choices. We can tell them we are sorry, but that they must continue on in the legal limbo they are in. They must suffer on. They have suffered trauma as a result of the breakdown of their marriage and of their separation, but we say that they must continue on with that. We are sentencing them to the punishment of continued imprisonment, continued refusal to regularise their position, continued refusal to come out of their legal limbo, not for five years but for the rest of their lives. That is our verdict as Irish people. That is what we have to say to them. This is one alternative.

The second alternative is to try and help these people by bringing in this very carefully pitched, moderately based amendment to our Constitution that will ensure that only a marriage that is over and gone for years is dissolvable, thereby protecting the institution of marriage, which the Government very much wants to protect. What we are talking about dissolving is a marriage that does not exist in anything but name. It is time we woke up to the position, recognised the realities of the situation and tried to help real people around us whom we know and who have very real problems.

Cuireadh agus faisnéiseadh go rabhthas tar éis glacadh leis an cheist: “Go bhfanfaidh na focail a thairgtear a scriosadh”.

[1572] Question: “That the words proposed to be deleted stand”, put and declared carried.

Fáisnéiseadh go rabhthas tar éis diúltú don leasú.

Amendment declared lost.

Committee Stage ordered for Wednesday, 18 October 1995.

An Leas-Chathaoirleach: When is it proposed to sit again?

Mr. Neville: Next Wednesday at 2.30 p.m.