Brian Hayes (Fine Gael)

I second this motion. I thank Senator Browne most sincerely for giving us the opportunity to debate this matter, he has been a lone voice on this issue in recent years. It highlights the importance of this House in responding to an issue that some people feel should be addressed by way of legislative change. It is clear that the other House does not frequently have time for such debates because of the bear pit atmosphere that exists there. We have more time and the Seanad should be used to address such issues in a thoughtful and mature way. Senator Browne has made his case well and I thank him for doing so.

The Government amendment, which Senator Browne is happy to accept, is useful and I congratulate the Tánaiste for allowing the establishment of the high level group under the chairmanship of a senior counsel. That is a positive development whereby a body can produce a report after a time reflecting all the issues that will be raised during this debate. It can report to us and to Government on areas where the law must be changed, if necessary.

I fought my first campaign when I was 16, during the divorce referendum introduced by Dr. Garrett FitzGerald in 1986. The naïveté of the notion that a snotty-nosed 16 year old could lecture anyone about marital bliss is something I readily concede but that referendum was defeated because of opportunistic tactics on the part of the Opposition and because the ground was not clearly laid out in advance.

That mistake was put to one side during the first Labour-Fianna Fáil Government from 1992 until 1995, when there was significant change in divorce legislation, particularly the Judicial Law (Separation) Act, which was put in place before the issue of divorce was dealt with in the subsequent constitutional referendum. The Act introduced the principle of no fault divorce for the first time, albeit in the area of separation. This fundamental change in the law, the removal of the need for people to bear all before a judge to allow the court to determine whether they had a right to legally separate, was introduced by the then Minister for Equality and Law Reform, Mr. Mervyn Taylor. The only outstanding issue was addressed in 1996 when the constitutional prohibition on the right to remarry was changed by a slender majority in a referendum.

In changing the law in this area it is important to tread carefully because the principle of marriage enjoys a significant level of support. Divorce rates here are much closer to those in ostensibly Catholic countries such as Italy and Spain than those in other northern European countries. I am glad the suggestion made by many opponents of divorce more than ten years ago that the introduction of the Divorce Acts would open the floodgates has not materialised. Instead, people have come to use the law as a means of regularising their circumstances and, as such, securing a second chance.

The issue in this debate is whether two individuals entering marriage may make arrangements in a pre-nuptial agreement and ensure that the provisions into which they have freely entered are upheld in the courts in the unfortunate event that their marriage breaks down. This is the legal doubt which must be addressed in the review about which Senator Browne spoke. It would be worthwhile to determine once and for all the answer to this question.

Notwithstanding the romantic notions a couple may have, parties to a marriage must enter into it with their eyes open. Given the cost of property and the extensive assets some parties may bring to a marriage, it would be sensible to provide legal certainty for pre-nuptial agreements to ensure people do not have the rug pulled from under them, as it were, in the High Court or Supreme Court. The principal point in this debate, as set out by Senator Browne, is that people who choose to enter into pre-nuptial arrangements require guarantees that the arrangements they have made will be upheld by the courts in the unfortunate event that their marriage union breaks down.

I welcome this debate and look forward to Members' contributions. I thank the Government for the measured response it has taken in the amendment. Together, we can address this issue to determine if the law needs to be changed, the scope of any such change and when it is to be brought about.