Lynn Ruane (Independent) | Oireachtas source

I welcome the Bill and the fact that a referendum will soon be put to the people on whether to remove the constitutional restrictions on how long a couple must be separated before they can legally be granted a divorce. This will be the third time the electorate will be asked a question on divorce and, hopefully, the last. It is sometimes a sad thing and sometimes a joyous thing when a marriage breaks down and a divorce is required but the State needs to facilitate an accessible route to dissolution of marriage where it is needed. The civil aspects of a marriage are a significant legal and binding contract and people need to be able to enter and leave these contracts to ensure the emotional and familial stress and burden that the breakdown of a marriage can have on individuals and those close to them is eased and that the State is not unnecessarily adding to the distress of our citizens.

I welcome that the decision of Government was made to further liberalise the provisions of the Private Members' Bill introduced by the now Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, when she was a backbencher. It is right to take cumbersome, detailed and technical provisions out of the Constitution so that we in the Oireachtas can do our jobs and legislate for these complex issues. It is important that we do not have to go back to the people for another referendum any time a change needs to be made and so such changes can be dealt with in the much more flexible legislative process. It was the right decision so I thank the Minister for advocating for this change.

It is welcome that this Bill recognises that the Constitution is not the right place where complex issues of family law are set out and regulated. Constitutional provisions are supposed to set broad principles that give us the environment within which the Oireachtas can write and pass laws. As we saw with our recent experience with the eighth amendment, ambiguous language can have wide-ranging and unintended consequences and make it very difficult for the Judiciary to interpret it fairly and for the Oireachtas to legislate as it needs to. I mention all this because, while I welcome the proposal to repeal paragraph (1) of Article 41.3.2^o, I am concerned that the rest of the article is being left untouched. The Minister is aware of the remaining provisions in paragraph (2), which refers to a grant of divorce when "there is no reasonable prospect of a reconciliation between the spouses" and paragraph (3), which refers to "such provision as the court considers proper, having regard to the circumstances exists or will be made for the spouses, and children or either or both of them, and any other person prescribed by law". Essentially those provisions require that a judge must be satisfied that the couple are not going to reconcile and that proper financial provision has been made for spouses, dependants and children before he or she will be granted a divorce. This is a high legal bar to meet and, while I am not making a judgment on their merits, I am raising my concern that they will remain in the Constitution.

In a column for thejournal.iein February this year, professor of law at Trinity College, Mr. David Kenny, raised significant concerns with the decision to limit this referendum to just the issue of time limits and I thank him for engaging with my office on this issue last week. He wrote that the requirement for proper provision means that, where possible, assets will be divided so that spouses and children can continue to enjoy the lifestyles they had during the period of marriage and that it will always be possible be revisit this at a later date. This means that, long after a marriage has ended, a judge may still inquire into the finances of former spouses and keep proposing new divisions of assets. This effectively means that, even after a divorce in Ireland, there could be no clean break. I am again not making a judgment on the merits of the provision at this stage because I have not been able to do enough of my own research and I am just querying whether this complex provision should remain in the Constitution or whether it should be dealt with in legislation.

Mr. Kenny then refers the no prospect of reconciliation provision and how, because the time limit has always been there, the time requirement has essentially done that job for the judge concerned because to live apart for so long can be, and in most circumstances is, determined as proof in and of itself of the unlikelihood of reconciliation. However, once the time limit is presumably removed, a judge may feel he or she needs to inquire into the reconciliation prospects more actively and vigorously. Perhaps judges will need more detail on the reason for the breakdown of the marriage and the circumstances thereof, greatly increasing the distress of the individuals involved but also moving us to a new situation wherein, although Ireland currently has a system of no-fault divorce whereby one does not need a specific reason to get a divorce, this could change in the future.

I am not making a judgment on the merits of these provisions at this stage. I am just asking the question as to whether they should remain in the Constitution or whether they should be taken out and dealt with in legislation. Did the Minister consider these issues when drafting the constitutional amendment? I know he referred to his own agreement, in a sense, in his contribution. What were the results of those discussions? These are complex provisions that impact on the intimate relationships of people living in Ireland and I am not convinced that those provisions should remain as they are. It would be a real shame if we missed an opportunity here to deal with this issue conclusively and had to come back for a fourth divorce referendum. I raise these issues with the hope of being constructive. I am, unfortunately, not able to stay until the end of the debate but I will read the Minister's response and may debate the matter further with him on the next Stage on Thursday.