Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

Our divorce laws were archaic in 1995 and the same description can be applied to them today. The purpose of the Bill is to reform our current process of divorce, which is very much welcome. I am aware that this is an area in which Deputy Madigan has a great deal of professional experience and I commend her on introducing the legislation.

From the outside, it seems our current approach is draconian. It is still rooted in an era when divorce was viewed as a social ill rather than a legal right and an everyday reality. The steps a couple must take to secure a divorce are onerous enough to amount to a punishment, rather than a fair process. Even the most amicable of divorces needs to be ruled on by the Circuit Court or High Court. As Deputy Madigan stated, divorce can place a serious strain on a couple's mental, emotional and financial well-being. The measures proposed in the Bill would reduce this uncertainty somewhat by allowing couples the option of a divorce within two years of separation, rather than the current period of four years. This would also allow them to avoid the additional legal and emotional costs incurred by seeking a judicial separation first.

We must be mindful that the decision to live separately, regardless of whether a couple continue to share the same house, is not one any couple takes lightly. Even at the two years proposed by the Deputy, the law would remain highly restrictive in European terms. It would still prohibit any legislation aimed at addressing circumstances where a divorce may be sought in a shorter timeframe. For example, the one-year separation period in Canada can be waived in cases where a spouse is mentally or physically abusive.

While the Bill's provisions are welcome, there is no logical reason to fail to go further. If we are to put a constitutional amendment to the people, one which is effectively administrative, why not remove this matter from the Constitution? Surely it is more suitably dealt with through primary legislation rather than a constitutional provision.

Marriage, of course, is a deeply personal issue. We hope it is based on love in all cases but, for many, its significance is religious, for others, it is social and, indeed, for some it may be a purely financial decision, or one undertaken to avoid the shortfalls in our current guardianship legislation. By the same token, anyone who chooses to end a marriage does so for their own reasons. Regardless of whether one believes that the institution of marriage requires constitutional protection from attack, there is no need for the mechanics of obtaining a divorce to be provided with the same level of defence. Fundamentally, the Constitution is not the appropriate place for practicalities. The concerns of most people who engage in divorce proceedings are not about the social significance of marriage; they are worried about custody arrangements, the cost of legal fees, and the time the process will take. Placing a constitutional restriction on the time it takes for a couple to be entitled to a divorce restricts our ability to fairly reflect this range of opinions in legislation.

Before her election to this House, Deputy Madigan practised law in this area. Why she has chosen to maintain the inclusion of a constitutional provision? Why was two years rather than 12 months, for example, selected? This is a worthwhile Bill in as far as it goes but we need to start giving serious consideration to taking this provision out of the Constitution altogether. The Social Democrats fully support the legislation and we warmly commend the Deputy on bringing it forward.

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