Dáil debates

Thursday, 6 April 2017

An Bille um an gCúigiú Leasú is Tríocha ar an mBunreacht (Colscaradh) 2016: An Dara Céim - Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016: Second Stage


2:50 pm

Photo of Josepha MadiganJosepha Madigan (Dublin Rathdown, Fine Gael)
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Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

I am pleased to present the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016 before this House for its Second Stage debate.

Fiona Shackleton, Sir Paul McCartney's solicitor, said that the courtroom was a barbaric venue in which to pick over the carcass of a failed marriage. I could not have put it more aptly myself. I am one of the lucky ones. My husband may differ with me but I believe I have been happily married for the last 15 years. I have not had to go through a separation or divorce and I hope I never do. Having worked as a family lawyer, however, for two decades now this year, I know at first hand the truth in Ms Shackleton's words for so many separated couples throughout Ireland.

In marriage we promise ourselves to another "till death do us part". This solemn vow reflects an ideal; the steady love and companionship of marriage that many of us hope to enjoy for the duration of our time on this earth. Sadly, for many couples, this ideal is not reflected in reality. Many marriages break down and these couples should not have to suffer the further stress of an unwieldy and harsh four-year rule before they can apply for a divorce.

For too long Irish society was unwilling to face up to this reality. Marital breakdown was often judged harshly. This unwillingness to deal with the reality of marital breakdown was so prevalent in 1937 as to lead to divorce being explicitly banned in Bunreacht na hÉireann. Politics is the art of the possible. While some might wish that we in the Dáil could pass some legislation to mystically solve the marital problems faced by separating couples across the country, that is far beyond our powers. It is rather our responsibility to deal with the reality. It is our responsibility to accept the fact that marriages break down and to develop legislation to help, rather than hinder, separating couples as they strive to embark on the next chapters in their lives. It is for this reason I wrote my family law book on mediation in 2012, and why I am now bringing this Bill before the House on Second Stage.

The current constitutional requirement for separating couples to live apart for four years out of the preceding five before initiating divorce proceedings is too long. It is cumbersome and restrictive, placing severe and unnecessary strain, both financial and emotional, on separating couples. My Bill simply seeks to halve the necessary waiting time before initiating divorce proceedings from four years of living separated and apart out of the previous five to two years out of the previous three. I believe this to be both fair and achievable and it will make a significant positive difference to the lives of separating couples in Ireland.

It was 30 years ago that former Taoiseach, Garret FitzGerald, first attempted to tackle the issue of divorce. Irish society was not ready for it then and his divorce referendum was roundly defeated. Ten years later, when divorce would finally be passed by referendum, at the instigation of another former Taoiseach, John Bruton, it would only be by the thinnest of margins. The price to win over a wary electorate was the mandating of a four-year waiting period in the Constitution. The people said we could have divorce but they were not willing to make it easy.

Ireland has changed a lot in the past 20 years. We have become a more open, welcoming society, less willing to judge the personal lives of others. I do not believe that the attitudes towards divorce expressed in the 1995 referendum are a reflection of today's Ireland. I remember the strong campaign against divorce in 1995. The famous slogan "Hello Divorce, Bye Bye Daddy" did not hold true and the floodgates did not open.

2 o’clock

We have not seen the wholesale breakdown of marriage in Ireland. At one in ten, we have one of the lowest marital breakdown rates in the world, which is to be welcomed. The Irish people, in the main, still rightly cherish the ideal of marriage. This is also demonstrated by the great enthusiasm shown by Ireland’s LGBT community in 2015 to gain equal access to marriage under Irish law.

Study after study on reduced mandatory waiting times for divorce reach the same conclusion - the enactment of this Bill will not promote marital breakdown. It will simply allow people whose marriage has broken down to access the legislative certainty and finality of a divorce within a reasonable time. We must do it by way of referendum because it is already in the Constitution. I suggest it should be an issue to be voted on on a "super referenda" day in due course.

The 2016 census shows us a clear picture. Over 280,000 Irish people have experienced marital breakdown. Some 104,000 are divorced with 62,000 being remarried. In addition 118,000 are separated or judicially separated.

For some, separation has been chosen over divorce, but for many, the decision not to pursue a divorce is driven by the sheer financial cost of prolonged legal proceedings imposed by the four-year rule. The severe burden forced upon separating couples seeking a divorce by the four-year rule is far from limited to financial costs. In my experience, prolonged matrimonial litigation serves only to increase hostilities and to prolong a process that will mark one of the most difficult periods in separating individuals’ lives. It is hard to overstate the extreme stress caused by such a long divorce process, not only on a couple but on all those around them, particularly their children.

There is an increased risk of assets being hidden and relocations the longer the interim period between separation and divorce with resulting difficulties in enforcing maintenance and access orders. In many cases, the time to reach a divorce settlement is so lengthy as to necessitate two separate sets of legal proceedings with many interim applications in the intervening time. For some people it is necessary to get a deed of separation or a judicial separation prior to seeking a divorce in order to obtain some legal clarity on issues relating to the family home, property, pension and other ancillary reliefs. Not only is this lengthy, but separation deeds and judicial separation decrees lack the finality and certainty of a divorce.

As we know the chief distinction between separation and divorce is the right to remarry.

We can and must do better and the Bill helps us to aim to achieve that. It is not a radical departure in divorce law; it simply seeks to reduce the time limit from four years out of the preceding five to two years out of the preceding three. Its aim is clear and its intention is straightforward. It is important to stress that the other provisions of Article 41.3.2° of the Constitution for divorce relating to there being no prospect of reconciliation and that proper provision is made for both parties and any dependent children will remain as is.

It is also important to point out that the section 20 factors outlined under the Divorce Act 1996 will also continue to be taken into account by judges of the Circuit Court or High Court in granting their decrees of divorce. These are factors such as the earning capacity of the parties; their age; any accommodation needs; any physical or mental disability; conduct only if it is unjust to disregard it; contributions the spouses are likely to make into the future; the standard of living before living apart; whether a spouse has foregone any remunerative work to care for children; and the rights of any other spouses. All of these criteria will still be taken into account by judges in making divorce decrees. My Bill does not change that.

Looking at other jurisdictions, there is a standard two-year waiting period for divorces in the UK with mutual consent. A number of US states, Belgium - without mutual consent - Italy and Greece have no waiting time. There is a one-year waiting time in Spain. France, Norway, the Netherlands, Austria, Germany, Sweden, Denmark, Scotland and Switzerland have waiting times around two years. In Finland it is six months. In Russia like Ireland it is nearly four years, however it has a quirky proviso that a husband cannot file without a wife’s consent if she is pregnant or has a child under the age of one.

The trend across Europe and beyond is towards shortened mandatory waiting periods for divorce, which is widely seen as inherently fairer for separating couples. I am greatly pleased by the cross-party support that has been expressed to me personally from politicians throughout this Chamber and indeed my own party. I am also extremely pleased that so many civil society groups support the Bill. Patricia Kearns from separated.ieis in the Gallery. I thank her for coming along today and for her support and that of all the family lawyers who are enthusiastically backing this Bill. I also thank my former parliamentary assistant Oisín Crotty, a barrister at law, who conducted an enormous amount of research for me on the Bill and is also in the Gallery.

Twenty years after the introduction of divorce, I believe that Ireland in 2017 is confident enough to confront the realities of marital breakdown in this country and mature enough to recognise that our current divorce law is punitive and unfairly restricts the ability of thousands of Irish citizens who have separated from moving on with their lives. It is time for this Chamber to stand up for Ireland’s separated people and in the spirit of fairness lessen a major, unnecessary obstacle to beginning the next chapter of their lives following marital breakdown.

I am honoured, humbled and privileged to present the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016 to the House and I urge my colleagues to support it.

3:00 pm

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail)
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I wish to share time with Deputies O'Loughlin and Brassil.

I commend Deputy Madigan on introducing the Bill and I assure her of Fianna Fáil's support in respect of it. Obviously, divorce in Ireland has been a lengthy and contentious issue. Back in Brehon times divorce in Ireland was permitted on certain grounds. However, when we became a modern independent State it was not permissible in Ireland. When the Constitution was introduced in 1937 it contained a specific term precluding divorce from being permitted on our Statute Book. We sometimes think that our country was a conservative outlier; that is not necessarily so. Divorce was frowned upon in Victorian times and only certain countries had access to divorce. Obviously as countries developed and matured, it became more acceptable. As the influence of certain perceived moral values lessened, the whole issue of divorce became more liberal.

We had a number of attempts to remove the constitutional ban on divorce. In June 1986 a referendum was defeated significantly by 63% to 37%. Nine years later another referendum was passed very narrowly by 50.28% to 49.72%. I would have thought that part of the reason for it succeeding was that it stipulated that people be separated for four of the preceding five years. In that regard it probably served a function. However, as Deputy Madigan has stated we have now moved on 20 years. As a party, we believe it is cruel to force people to be frozen in a status for a period of four years when it is clear that they cannot reconcile and that the marriage will not subsist in the future.

The Deputy's proposal is very sensible in referring to two out of the preceding three years. I know some people would think it should be less than that, which might be a matter for another time. We need to be careful that we retain consensus and support on the issue. I believe Deputy Madigan has done that very well. By limiting it to a period of two years out of three, I think it would be very hard for people to oppose it. For any change to the Constitution it is necessary to get broad support and I believe she has achieved that.

It looks as if the Bill will pass with the support of Fine Gael and Fianna Fáil; I am sure the other parties will also support it. However, we need to know when the referendum will take place. That will be a matter for the Minister for Housing, Planning, Community and Local Government. I believe it should be progressed sooner rather than later.

Photo of Fiona O'LoughlinFiona O'Loughlin (Kildare South, Fianna Fail)
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Divorce is very difficult and traumatic for people emotionally. I do not believe anybody makes the decision to leave marriage lightly. Having gone through to that stage of irretrievable marriage breakdown, I believe the process of getting a divorce should be more straightforward and practical.

Divorces and separations can be very bitter and contentious. The longer the process to get to the final stage and achieve some type of finality to that union, the more difficult it is for everybody, both the spouses involved and their children.

The 2016 census results that were published this morning reveal an increase in the number of divorced people since 2011.

On average, 3,150 people divorced per year over the past five years and many more are waiting to divorce. We must show them compassion in the reality of today's world.

It is 22 years since divorce was introduced in Ireland to help, support and show compassion to couples who found themselves in a situation where it was better for them to live apart and settle their financial affairs in the appropriate way as well as having the possibility of remarrying. It is wrong that couples whose marriages have broken down must wait four years, which is an inordinate period of time, to be able to sort out all the different financial implications and get on with their lives because it has a negative and stressful impact on them, their wider families and their children.

When we consider the experience across Europe and the world, we see that our four year rule is outdated, as outlined by the Deputy. As my colleague, Deputy Jim O'Callaghan, stated, Fianna Fáil is happy to support a more compassionate and understanding way forward for those who find themselves in this difficult situation. I commend Deputy Madigan for proposing the Bill and hope that we will see a situation where we can put this to the people sooner rather than later. They need to have their voice heard on the matter.

3:10 pm

Photo of John BrassilJohn Brassil (Kerry, Fianna Fail)
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I also compliment and congratulate Deputy Josepha Madigan for proposing the Bill. My party and I will be supporting it. It is more than 20 years since the referendum was passed. I believe the four year rule was critical in passing the legislation at the time, such was the closeness of the vote. However, time has moved on and society has moved on.

I suppose there is no such thing as an amicable divorce but when divorces are particularly difficult forcing people to wait four years to sort out issues such as property and access rights is inhumane. People want to move on with their lives. If we are to help them move on with their lives, a two year separation period is reasonable. It will allow people the space they need to get their affairs in order while not being unduly cumbersome in allowing them to get on with their lives. As a legislator, I consider what Deputy Madigan is proposing in the Bill to be fair. I believe the whole House will support it and urge that the necessary referendum takes place as quickly as possible. Let the people have their say. I have no doubt that they will support the proposal.

Photo of Carol NolanCarol Nolan (Offaly, Sinn Fein)
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I commend Deputy Josepha Madigan for proposing the Bill. Sinn Féin welcomes this Bill which, if enacted, would allow for a referendum to reduce the waiting period that a separated couple must undergo before they can be granted a divorce. We recognise, as we did during the original divorce referendum in 1995, that the reality is some marriages break down over time and that sometimes this is irreparable. In those circumstances, the commitment and love between two people required to sustain a marriage is no longer present and it is simply inhumane to require those people to continue to be bound by a legal partnership that they both want out of. The electorate agreed with this and as a result the divorce referendum was passed in 1995.

The very restrictive nature of the laws governing divorce in Ireland have their roots in the previous failed referendum of 1986, but the State has changed much more during the past 30, or even 20, years. We recognise the diversity of families in Ireland and most people recognise that it is not their business whether other couples remain separated, divorce or stay together for whatever reason. It is only our business in so far as we, as law makers, are the ones who need to initiate a change to make it more accessible for people to divorce.

The outright ban on divorce in the Constitution between 1937 and 1995 did not serve society. It did not serve those who were legally trapped in marriages which they did not want to be a part of. We recall the strong resistance to the proposed divorce referendum by some organisations who insisted that the introduction of divorce in Ireland would open the floodgates of marital breakdown. It is clear that this has not happened. There were already thousands of separated persons in this jurisdiction before divorce was introduced.

The results of a survey published last year showed that, although there was an overall increase in the number of couples in the EU getting divorced in 2015, Ireland and Luxembourg had the lowest rates of divorce. The same study showed that Ireland had the highest proportion of young people and the highest fertility rate in the EU. The divorce rate in Ireland is 0.6 people per 1,000, which is the third lowest rate in the world. The rate of divorce is three times higher in the UK. More research is needed on why this is the case. Is it because Irish people find it more expensive or difficult to get married in the first place? Do we have lower divorce rates because it is harder and more expensive to go through with a divorce? Are more people in Ireland simply shackled not only by the bonds of marriage but by the bonds of negative equity preventing them from divorcing? None of this is clear. What is clear is that we need a legal framework that is fit for a modern country and fit for society’s needs.

The current waiting period is not acceptable. It is nobody’s business whether John and Mary from down the road decide to go their separate ways, but it is cruel to make them wait five years in order to divorce. The sky will not fall in if we allow them to divorce after two years. No one seriously considers it should take grown adults four years to decide whether to divorce. What is the point of forcing people to wait a long period of time, especially given many of these people form relationships and have children with others in the intervening years before they can divorce?

We need to trust adults to make the best decisions for themselves, their families and their relationships. On that basis, we are happy to support the Bill and urge the Government to hold a referendum to make the appropriate change as soon as possible.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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I call Deputy Ruth Coppinger.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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That was close.

Photo of Marcella Corcoran KennedyMarcella Corcoran Kennedy (Offaly, Fine Gael)
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By the skin of her teeth.

Photo of Ruth CoppingerRuth Coppinger (Dublin West, Solidarity)
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The first thing I would like to say on the proposal of a thirty-fifth amendment to the Constitution to change the timeframe for divorce is that when the referendum was passed in 1995 it included a requirement for a four year separation period prior to divorce proceedings being started. I think it is not known by many people outside the House that this is stitched into the Constitution. I think most people do not realise that. I want to raise the issue of our putting legislation into the Constitution in the first place because this set a dangerous precedent and the discussion today bears that out. Some 22 years after the original proposal we are now catching up with the reality for those who are going through a divorce, which is that four years is far too long and onerous.

While we support the Bill and may consider tabling amendments to it should it get to a debate, there should be no time restrictions at all in the Constitution. The Constitution could make reference to divorce being allowed. However, why should it be necessary to have a majority vote every time we need to change a timeframe? This relates to people's personal lives. We should not have to hold a popular vote on whether we will allow Mary and Jack to have a divorce, which is essentially what we are saying. The danger of the decision that was made to tie legislation into the Constitution to get the referendum passed will come up again with regard to the eighth amendment. Those on the Government side and others have continually raised this as an issue and stated that we must show people the legislation, which is fine, but they also state that we must stitch it into the Constitution to get people to pass it. We oppose the push to amend and not repeal the eighth amendment.

The political establishment wants to insert regulations and restrictions in the Constitution to tie the hands of the Oireachtas to legislate on abortion and the rights of women. There is a view that forcing people to remain married for years after separation will persuade them to get back together. I query the proposal to have a two-year waiting time for divorce. In most cases, marriage breakdown is the outcome of a process lasting years. People do not wake up and suddenly decide to divorce.

Most women who experience domestic violence do so within marriage and this violence can continue for years. Why should people face any impediment to ending a marriage, which is an arrangement they have made with another person? This matter should not be decided in a popular vote.

The housing crisis is having a significant impact on people who are enduring the anguish of separation. Many separating couples are unable to move and are forced to stay together because they cannot afford to find other accommodation. Even if the separation is amicable, their ability to move on is frustrated. When the decision is not amicable, however, violence, psychological abuse and other issues can arise. I am aware of many such cases.

Reference was made to the census figures. The figures published today are historic in that they show a 74% increase in the number of people who profess to have no religion. A total of 468,000 people do not have a religion and I would wager that some of those who stated they were Catholic or belong to another religion do not practise their professed faith. This Dáil must start recognising this reality, including in its daily customs. For example, in what other workplace would a prayer be said every day? The idea that the church would interfere in people's decisions is also an issue.

I am glad to support the Bill, which we may seek to amend if it proceeds. We need full separation of church and State.

3:20 pm

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I echo much of what Deputy Coppinger said. I was active as a socialist in the campaign for divorce. During the divorce referendum, we used posters featuring the face of the late Bishop Eamon Casey with a slogan that bishops should look after their own families. The posters were very popular among those who were advocating in favour of divorce. The referendum was narrowly passed by a margin of 50.28% to 49.72% in November 1995. Thinking back on that campaign, it is interesting to compare it with the recent referendum on same sex marriage. I remember watching the results of the divorce referendum coming in on a television in a Dublin city centre hotel. The areas that delivered radical, progressive change to allow people to control their own lives were not the leafy suburbs of Foxrock or the other place, the name of which I forget, near where Deputy Coppinger lives-----

Photo of Ruth CoppingerRuth Coppinger (Dublin West, Solidarity)
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That would be Castleknock.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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-----but rather the working class areas of Ballymun, Ballyfermot and the south inner city. As the results from these areas came in, we saw the results of both referendums tipping in a positive direction.

I welcome Deputy Madigan's Bill, although I agree with Deputy Coppinger that it should probably be amended. Prior to the Russian Revolution in 1917, it was legal in Russia for men to beat up their wives. One of the first acts of the revolutionary workers' government was to legalise divorce and abortion. The pro-life movement and Catholic Church, including the bishop to whom I referred, told us the sky would fall in and the fabric of society would crumble if we allowed divorce. In their view, we had to hold together the family, which meant mammy, daddy and 2.5 children. Society's view of how families should function has changed utterly since that time. One of the posters used by the anti-divorce side in the referendum campaign featured the slogan "Hello Divorce, Bye Bye Daddy". The sky did not fall in when divorce was introduced but it is falling in now for many families because of the crisis in housing to which Deputy Coppinger referred.

A very good friend of mine recently took the deliberate decision to retire early from her full-time job in Women's Aid. The reason she did so was that she could not stand another day of going to court with women who were forced back into abusive relationships because nowhere could be found to house them. This is happening every day in the courts. Not only are people returning to relationships where there is no love but they and their children are being violently abused on a daily basis. As I stated, my friend retired early to get away from the depressing reality of having to do this to families.

Divorce must be available when people want it, rather than after two years. While I welcome the move to advance this issue, an amendment to the Bill is probably needed. Personal morality and control over one's life and relationships are fundamentally important and people must have a grip on them. They cannot be forced to live in unhappy or oppressive circumstances. For this reason, we are determined that a referendum on the eighth amendment should be put to the people. This is the 21st century and generations of Irish people have not yet had a say or vote on these issues. If we were to have a revolution in Ireland - God willing, we will have one - we must deliver the separation of church and State and deliver a society, including education and health services, which is not dictated by the religious or spiritual values held by one group. Having a truly secular society that is literally divorced from the church is an important ambition for future generations.

One of the reasons for our relatively low rate of divorce is that Ireland is riven by economic crises. People tend to avail of legal separation because divorce is expensive, cumbersome and difficult. A much more liberal divorce regime is required and I welcome Deputy Madigan's attempt to achieve this objective.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Social Democrats)
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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.

3:30 pm

Photo of Leo VaradkarLeo Varadkar (Dublin West, Fine Gael)
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I am delighted to contribute to the debate and to offer my support for the Bill. I acknowledge the significant work Deputy Madigan has put in, as she brings forward a timely reform, which in many ways is overdue. I doubt many of us in 1994 thought that this provision would not have been amended within a shorter period.

The history of divorce in Ireland makes interesting reading. As Deputy O'Callaghan said, divorce was legal throughout most of our history. It was legal under Brehon and Celtic law and under the Act of Union when we were part of the UK. Although divorce was uncommon, it happened and Charles Stewart Parnell is an example of somebody who married a divorcee. It was only in the 1920s, unfortunately under a Cumann na nGaedheal Government, that the decision was take to prohibit divorce and that was copperfastened in the 1937 Constitution, which was a pity. I am slightly at cross purposes to Deputy Coppinger earlier. Once something is inserted in the Constitution, it is then very hard to amend it. It would have been better if the 1937 provision had not been put in the Constitution. Had it not, some provision would have been made for divorce and the right to remarry, perhaps in the 1970s or 1980s.

That did not happen and a referendum led by the great constitutional crusader, Garret FitzGerald, was defeated in the 1980s. I have a vague recollection of that campaign as a child and of the scaremongering that caused the amendment to be defeated. Nothing happened until the 1990s until another member of my party, former Minister, Alan Shatter, brought forward Private Members' judicial separation legislation similar to the recent civil partnership legislation to "almost" allow for divorce. That was a major step forward. In 1994, the rainbow Government of Fine Gael, the Labour Party and Democratic Left brought forward the provision and put it to a referendum again. I recall that campaign well because it was the first in which I took part as a young person interested in politics. I dropped leaflets with Young Fine Gael at the time.

We framed the campaign for the right to remarry to give people a second chance. That was one of the strong arguments in its favour. However, I was surprised at the time because I then began to attend for the first time other Fine Gael branch meetings and was struck by the large number of people within the party who were opposed to divorce and who did not agree at all with the provision. I recall the scaremongering at the time about the impact of property rights and people losing the family farm, for example. Much of our law, particularly when it comes to personal relationships, derives from property rights and not Christian religion. A big fear was losing the family business or the family farm. There were stories about how family life in Ireland would break down and it would turn into a scene from "Home and Away" where virtually nobody would live with their married parents anymore. The referendum passed and, of course, and none of those scare stories turned out to be true.

Ireland remains a country in which divorce is uncommon. I detected from Deputy Smith's contribution that perhaps she regretted that and that she thought the divorce rate should be higher. I am not sure that is what she meant but that is certainly what she implied and I do not share that view. It is good that, culturally, in Ireland people tend to marry late and when they marry, they tend to stay married, although on some occasions, marriages do not work and people divorce and remarry. I recall the count following the 1994 campaign a little differently from Deputy Smith. The largest "Yes" votes in that referendum were in the south Dublin constituencies. Dublin South, Dublin South East and Dún Laoghaire had massive "Yes" votes and there was also a good "Yes" vote in west Dublin. However, we were very much a divided society, much more so than was the case with the recent marriage equality referendum. The divorce referendum only passed in Dublin, Limerick East, Cork South Central, Louth and perhaps one of the Kildare constituencies or Wicklow. The vast majority of constituencies voted "No", which was much different from the voting pattern in the marriage equality referendum with only one constituency narrowly voting "No". Were it not for the fact that the rainbow Government wrote reassurances and safeguards and protections into the Constitution, that referendum would not have passed. It might not have been the right thing to do but it was probably the politically necessary thing to do because the divorce referendum only passed by 50.28% to 49.72%. There were only 10,000 votes approximately in it, which is extraordinarily close. The safeguards and reassurances written into the Constitution were crucial to its passage.

I agree with other Deputies that it would have been better if the amendment had never been inserted in the Constitution in the first place. It may well be the case that it will be necessary to replace it with a new amendment or we may face a referendum simply on repeal being defeated again and the issue being set aside for the best part of a generation. Of course, that is a different issue.

The legislation relates to the divorce and the right to remarry. I have an open mind as to whether the period should be one or two years and as to whether there should be a waiting period if two people amicably want to dissolve their marriage. It is a good idea to have some provision preventing it from being too easy to get divorced but if there is no dispute, perhaps that should be a matter between the two individuals concerned. I welcome the legislation. A queue of constitutional amendments is building up, which I jotted down the other day. There is a likelihood of a referendum on the eighth amendment next year. There is also a need to have referenda on issues such as blasphemy, the place of women in the home, the patent court and several other matters, including the extension of voting rights in presidential elections to citizens living abroad.

Photo of Róisín ShortallRóisín Shortall (Dublin North West, Social Democrats)
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Property rights.

Photo of Leo VaradkarLeo Varadkar (Dublin West, Fine Gael)
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There could be referendums on many issues.

It was part of our manifesto in 2011 to have a big Constitution day on which we would have perhaps ten referenda on the same day. It would be exciting but could also be extremely confusing. I am not entirely sure where I fall on that matter. It demonstrates the extent to which our Constitution is in so many ways very much out of date. It was progressive in the 1937 but certainly is not any more. We need to press ahead with a series of referenda in the next year or two. The opportunity exists with the possibility of a presidential election next year and the certainty of local and European elections the year after to hold many of these referenda. For that reason, this legislation is very welcome and timely. I look forward to the rest of the debate.

3:40 pm

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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On behalf of the Tánaiste and Minister for Justice and Equality and on my behalf, I am pleased to inform the House that the Government will be supporting the Thirty-Fifth Amendment of the Constitution (Divorce) Bill 2016 introduced by Deputy Josepha Madigan. Deputy Madigan's Bill proposes to amend Article 41.3.2° of the Constitution to reduce the time period that spouses applying for a divorce must have lived apart from at least four years during the previous five years to at least two years during the previous three years. As in the case of any Bill proposing an amendment to the Constitution, before the Bill can be signed into law, a referendum will be required to allow the people the opportunity to decide on this significant proposed change to the Constitution.

Under Article 41.3.2° of the Constitution, as amended by the fifteenth amendment, a court may grant a divorce only where specific conditions have been met. The first condition is that on the date of 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 years. The second condition is there is no reasonable prospect of a reconciliation between the spouses. The third condition is that proper provision exists and will be made by the spouses for any children of either or both of them. The final condition is that any further conditions as prescribed by law are complied with. The then Government's rationale for specifying the basic conditions for divorce in the Constitution was to ensure there would not be any change to those conditions without reference to the people. When the Bill that became the Fifteenth Amendment of the Constitution Act 1995 was debated in the House it was explained that the purpose of the mandatory four-year period of living apart was to ensure divorce would not be available on an easy or casual basis in order to address concerns about quickie divorces and the development of a divorce culture in Ireland. We must remember we were moving at the time from a situation where the Constitution provided unequivocally that no law would be enacted providing for the granting of the dissolution of marriage to a situation in which divorce was to become possible in Ireland for the first time but subject to various specific conditions which were outlined into the new Article inserted by the fifteenth amendment. The Minister, Deputy Varadkar, outlined that very clearly earlier on. The four-year period was intended to ensure spouses would not enter into divorce lightly and would have the necessary time to reflect on the serious steps they were taking. It was also considered that the four-year period would encourage spouses to attempt to reach agreement on the terms of their separation so the key elements relating to children, finance and property could be settled before an application of divorce was made to a court. In this way, the court hearing may be less acrimonious than it otherwise might be. The four-year period of separation can be accumulated over a five-year period. The reason for this is to allow a couple to make a reasonable attempt at reconciliation in the knowledge that if it does not work out, they will not have lost their option to apply for divorce.

The Family Law (Divorce) Act 1996 which followed the fifteenth amendment made provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce and enabled the courts to make certain preliminary and ancillary orders in and after proceedings for divorce. Contrary to the fears expressed at the time, as captured for example the "Hello Divorce, Bye Bye Daddy" posters, it does not appear that a divorce culture has developed in Ireland. The CSO's Measuring Ireland's Progress report in 2015 indicates Ireland has the lowest divorce rate in the EU in 2014 at 0.06 divorces per 1,000 of the population while the average rate in the EU was two per 1,000.

Now that more than 20 years have passed since the introduction of divorce in Ireland, the Government believes it is appropriate to re-examine the provisions of Article 41.3.2° of the Constitution and for that reason it very much welcomes this Private Members' Bill initiated by Deputy Madigan. Shortening the living apart period will enable couple whose marriage has broken down to regularise their affairs sooner and reduce the legal costs involved. Couples will be less likely to need to apply for judicial separation while waiting to become eligible to apply for divorce. In advance of Committee Stage, the Department of Justice and Equality will examine the wording of the Bill in consultation with the Office of the Attorney General to ascertain whether any technical drafting amendments may be required to the text of the proposed constitutional amendments.

The Government is committed to the establishment of a family law court structure that is streamlined, more efficient and less costly. The Department of Justice and Equality is working on a general scheme of a family court Bill and we will be engaging in further consultation with relevant stakeholders on the operational aspects of a new family court structure. The general scheme will be published this year following its approval by Government and will be subject to the usual pre-legislative scrutiny process. The family court Bill will aim to streamline family law court processes, clarify jurisdictional issues and provide for a set of guiding principles to help ensure the family court will operate in a user friendly and efficient manner. The intention is to establish a dedicated family court within the existing court structures. The family court Bill will also support the proposals in the Mediation Bill 2017, which Deputy Madigan is very interested in, by encouraging greater use of alternative dispute resolution to assist in more timely resolution of family law cases. The Mediation Bill, which is awaiting Committee Stage in the House, contains certain proposals for a comprehensive statutory framework to promote the resolution of dispute through mediation as an alternative to court proceedings. This is intended to reduce legal costs, speed up the resolution of disputes and reduce the stress and acrimony which often accompanies court proceedings. In its 2010 report on alternative dispute resolution, mediation and reconciliation, the Law Reform Commission emphasised the potential benefits of mediation in family law proceedings and of mediation information sessions where the benefits and advantages of mediation could be explained before the commencement of court proceedings. Section 23 of the Mediation Bill provides that the Minister for Justice and Equality may for the purpose of ensuring the availability of mediation information sessions at reasonable cost and in suitable locations, prepare and publish a scheme for the delivery of such sessions or approve a scheme for the delivery of such sessions by another person or body. The Legal Aid Board is already involved in the provision of a free family mediation service, the benefits of which are widely acknowledged especially in cases in which children are involved.

To return to the Bill, on behalf of the Tánaiste, I inform the House that as a further step, the Government is of the view it should at this stage be open to proposing the removal of all the conditions for the grant of a divorce set out in Article 41.3.2° of the Constitution. This would not be intended to take away the regulation of divorce and matters associated with it, but it would mean the conditions for the granting of a divorce will be prescribed by an Act of the Oireachtas and not by the Constitution. This could facilitate clean-break divorces where appropriate and in which the possibility of financial and other orders made by a court when granting a divorce being subsequently revisited or varied could be restricted. The Government has agreed to bring forward amendments to this Bill on Committee Stage to provide for such a constitutional amendment. The Department of Justice and Equality will work with the Office of the Attorney General to formulate an appropriate wording for the amendments. We will also have to be careful to hear the further views of those who are experts in this area in formulating these proposals. It is noted that if this Bill passes Second Stage it will be referred to the Committee on Justice and Equality for pre-legislative scrutiny in accordance with Standing Order 141. The Tánaiste and I look forward to engaging with the committee on the provisions of this Bill. The pre-legislative scrutiny is a very important part of legislative proceedings. The committee will do a good job under the current Chairman.

I thank Deputy Madigan for bringing forward this Bill and initiating a timely debate on the constitutional requirements for divorce. There will obviously be different views and experiences to be listened to very carefully on this subject. Ultimately, if the Bill is passed by the Houses, the people will have their say in a referendum. This is manifestly not a subject any of us would or should take lightly but is one in which the Government, in supporting Deputy Madigan's Bill, believes it is now appropriate to lead.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.