David Stanton (Cork East, Fine Gael)
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It feels good to be back before the Select Committee on Justice and Equality.

I want to recognise Deputy Madigan's work on this area and her 20 year experience of dealing with family law. I thank Opposition members for the work and thought that they have put into this legislation.

Deputies will be aware that under Article 41.3.2^oof the Constitution, as amended by the 15th amendment, a court may grant a divorce only where specific conditions have been met. The first condition is that on the date of the institution of the divorce proceedings, the spouses have lived apart from one another for a total of at least four years during the previous five. The second is that there is no reasonable prospect of a reconciliation between the spouses. The third is that proper provision exists and will be made for the spouses of either or both of them. The final condition is that any further conditions prescribed by law are complied with.

We must remember that we were moving at that time to a situation where the Constitution provided unequivocally that no law shall be enacted providing for the grant of a dissolution of marriage to a situation in which divorce was to become possible in Ireland for the first time but subject to very specific conditions which were set out in the new article inserted in the 15th amendment. The purpose of the mandatory period of living apart was to ensure that divorce would not be available on an easy or casual basis, to address fears that what was termed a “divorce culture” would develop in Ireland.

Deputies will recall that the Government supported Deputy Madigan’s Bill on Second Stage. It believes that shortening the living apart period required by article 41.3.2^oof the Constitution would enable couples whose marriages had broken down to regularise their affairs sooner and reduce the legal costs involved. Couples would be less likely to need to apply for a judicial separation while waiting to become eligible to apply for divorce. The implementing legislation required to reduce the living apart period from four to two years would be a straightforward amendment to section 5(1)(a) of the Family Law (Divorce) Act 1996, which sets out the living apart required to obtain a divorce.

However, now that more than 20 years have passed since the introduction of divorce in Ireland the Government believes it would be appropriate to re-examine all the provisions of Article 41.3.2^oof the Constitution. As I explained to the House on Second Stage, the Government is of the view that it should be open to proposing the removal of the specific conditions set out in Article 41.3.2^othat must be satisfied before a court can grant divorce. This would not be intended to take away the regulation of divorce and matters associated with it. It would mean that the conditions for granting of divorce will be prescribed by Act of the Oireachtas and not in the Constitution. The Government has agreed to bring forward amendments to this Bill to propose such a constitutional amendment. The Department of Justice and Equality is working with the Office of the Attorney General to formulate an appropriate working for the amendments. Unfortunately, it was not possible for the drafting of ministerial amendments to be completed and the Government approval secured in advance of last week’s deadline for submission of amendments for Committee Stage of this Bill. I therefore propose at this stage to outline the Government’s current intentions regarding the Bill with a view to bringing forward amendments on Report Stage.

As Deputies will appreciate, given the importance of the issue and as a proposed amendment to the Constitution is involved, the utmost care must be taken in the drafting of amendments to this Bill. This debate today in the select committee today that which took place on Second Stage will inform and assist the process of drafting suitable wording for amendments to the Bill and the contributions of Deputies in this regard are greatly appreciated. As work on the drafting of amendments is ongoing, I am not yet in a position to put the Government’s proposed wording before the House. It is intended that the proposed wording will be published in advance of Report Stage when the drafting has been finalised and the proposed wording has been approved by Government. If the conditions for divorce specified in Article 41.3.2^oof the Constitution are removed, then the Oireachtas will be free to determine and set out in legislation the conditions which must be met before a court can grant a divorce. Of course, in exercising its power to legislate in this area, the Oireachtas must have regard to, and legislate in accordance with, the other provisions of the Constitution, in particular the fundamental rights provisions and Articles 40 and 44. Of central importance will be the constitutional obligation under Article 41.3.2^oto protect the family in its constitution and authority and, under article 41.3.1^o, to guard with special care the institution of marriage on which the family is founded and protect it against attack. For example, in the unlikely event of the Oireachtas enacting legislation which allowed a spouse to end a marriage by unilateral decision without any adjudicative process, that provision might well be successfully challenged by reason of failure to protect the institution of marriage against attack.

I will now comment on the amendments tabled by Deputies. The effect of the amendments tabled by Deputies Wallace and Daly would be that Article 41.3.2^owould no longer provide for the minimum living apart period. The Oireachtas could legislate for any minimum period it saw fit or could decide that no minimum period should be required. The other constitutional requirements, that only a court may grant a divorce where there is no prospect of reconciliation and that there will be a proper provision for the spouses and children, would continue in force. The intention and effect of this amendment is very clear and my Department would have regard to the proposed head put forward by Deputies Daly and Wallace in its work on amendments for Report Stage.

The amendments put forward by Deputies Ruth Coppinger, Mick Barry and Paul Murphy are much more far-reaching in that they would not only remove all the conditions currently specified in Article 41.3.2^obut would also take away the constitutional requirement that the divorce can only be granted by a court. The amendments also propose that the maximum living apart period that could be specified in legislation would be two years. At present, Article 41.3.2^omakes clear that only a court designated by law may grant the dissolution of marriage. This requirement protects the institution of marriage by ensuring that marriage can only be dissolved following a due and proper judicial process. For that reason it would be desirable to retain that requirement in Article 41.3.2^o. On that basis the Government will not favour the wording of Deputy Coppinger’s proposed amendment.