Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister to the House. I believe that my colleague and friend, Senator Norris, called a quorum in order to ensure that there was a sufficient number of Senators present for this important Bill. I am grateful to him for doing so because it enabled me to get here in time for the start of the debate.

On behalf of the Labour Party, I am delighted to welcome this important Bill and the practical and compassionate reform of the Constitution it proposes. Like other Senators, I acknowledge the work of the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, in highlighting the need for this reform and taking the initiative on it. As Senators are aware, the amendment proposed in the Bill would, if passed, delete the first paragraph of the current text of Article 41.3.2° of the Constitution and the requirement that spouses must have lived apart for at least four out of the previous five years before seeking a divorce. Like Senator Ruane, I was struck by the argument of my colleague, Professor David Kenny. Perhaps we ought to be more bold in seeking to amend the Constitution. It might have been preferable - I will not put it any more strongly than that at present - to have simply put forward an amendment in line with that on the eighth amendment last year which would enable the Oireachtas to make provision for dissolution of marriage without specifying particular aspects. I make that point somewhat tentatively because I very much support the current text of paragraph (iii) of the article, which requires that the court ensure that proper provision is made for spouses and children. That is an important text. Nevertheless, we should be able to provide in law for clean-break divorces, whether through legislation and the current text of the Constitution or through amending the Constitution. That need is increasingly pressing. I listened to the comments of Senator Colm Burke about delay of the court processes and so on. We should be able to provide for that issue.

I will return to the issue of the time limit and how we might amend that legislation. I am grateful that the Minister published the scheme of the Bill. It is very useful that he did so and it is important that people would know the consequences of a "Yes" vote. If the amendment passes on 24 May, we will have time to debate that Bill further. I and others may propose different time limits, possibly based on the time limits used in other European countries. For example, in some jurisdictions there may be a one-year limit proposed or, indeed, no waiting period or a six-month period where there is mutual consent. We could look at mechanisms other than the two out of the three previous years formula currently proposed in the scheme of the Bill.

On the referendum, I wish to address the track record of the Labour Party in driving social change on marriage. As Members are aware, the 1986 referendum driven by the Labour Party in coalition government with Fine Gael was lost in spite of the "Yes" side having an initial lead in the polls. Of course, retrospectively it seems that the referendum was lost largely due to fears about property division and adequate provision for dependent spouses. Following that defeat, the Judicial Separation and Family Law Reform Act 1989 dealt with some of the issues around property division and provision for spouses and children.

The second divorce referendum, held on 24 November 1995, was another intensely fought campaign. The Minister may have been less than bold in the proposal for the amendment because these referendum campaigns can be difficult and highly contested. Along with my colleagues in the Labour Party, I took an active role in the 1995 referendum. Of course, it was driven by the then Minister and member of the Labour Party, Mervyn Taylor, as well as activists in the Divorce Action Group and the Right to Remarry campaign which rightly focused on the need to ensure that people whose marriages had already broken down would be able to get a second chance, regularise their new relationships and provide adequately for any children of a successive relationship. Despite this very compassionate and persuasive message based on humanity, the fifteenth amendment of the Constitution was only very narrowly passed by 50.28% of the electorate, a figure etched in the memories of all those who campaigned at the time. There was a margin of only 9,114 votes, which is sometimes attributed to heavy rain in the west of Ireland on the day the referendum took place. I jest. It was an extremely tight margin. Of course, fears were stoked during the campaign by dire warnings from the "No" side that marital breakdown rates would escalate, dreadful slogans such as "Hello Divorce ... Bye Bye Daddy" and posters bearing messages such as "Divorce aborts marriage". I recently looked back at some of those dreadful slogans. Those fears and messages obviously contributed to the low margin of success in 1995 in spite of the fact that we had, of course, been making very strong arguments that legalising divorce simply recognised a reality and did not condone or encourage marital breakdown in any way.

Once the Family Law (Divorce) Act 1996 was put in place, many of us were concerned about the highly restrictive language in the Constitution which restricted the nature of the legislation. However, we acknowledged that the Act allows for no-fault divorce and that is welcome because other systems which earlier introduced divorce earlier based their laws on fault-based grounds. It is positive that Ireland did not so do. As many commentators and experts have pointed out, a fault-based system tends to place more strain on families in the event of break-up. Indeed, in spite of the dire predictions, our divorce rate has remained low since divorce was legalised, with a crude divorce rate of 0.7% compared with a European average of 1.9% when measured as divorce rates per 1,000 persons. Not only have marriage rates in Ireland remained strong, the number of those who can marry was expanded following the very welcome result in the 2015 referendum on marriage equality. The dire predictions did not come to pass.

There has been significant case law in the application of the Divorce Act, with clear rulings on the need to ensure that proper provision is made for dependent spouses and children and liberal interpretations of the term "living apart" to ensure that persons are not required to live in separate premises or households once they are effectively living apart, even if that is under the same roof. In spite of that liberal interpretation, commentators such as Carol Coulter and others have pointed out that the mandatory four-year period continues to present serious and unnecessary obstacles to couples whose marriages have broken down, that this period is one of the longest provided for in any jurisdiction and that it has forced many couples into a cumbersome two-stream legal procedures whereby they must seek a judicial separation in order to regularise their situation in an existing marital breakdown while waiting for the requisite four years to pass in order to be able to seek a divorce.

For those practical reasons as well as the reasons of compassion and humanity that applied in earlier referendums, this is a very important referendum and I will be campaigning for a "Yes" vote on 24 May along with my Labour Party colleagues, in keeping with our tradition of supporting important liberal social reforms. I welcome that the Minister has appointed Ms Justice Tara Burns to the commission and that the referendum date is set.

On marriage reform, I am very proud of two enacted reforms to marriage law which I was involved in initiating. One is the Civil Registration (Amendment) Act 2012 which enabled the conduct of legal secular wedding ceremonies by humanist celebrants. It has contributed greatly to the happiness of many couples and started life as a Private Member's Bill I brought forward in the SeanadThe second reform was the passage just last year of section 45 of the Domestic Violence Act 2018, which put an end to child marriage. This had originally been initiated as a motion in the Seanad by Senator Jillian van Turnhout and myself.

Perhaps more bolder reforms could be made but I very much welcome this reform as it is. I hope further amendments will be tabled to make more expansive reforms to Article 41, and in particular to delete the sexist language referring only to women and mothers as having duties in the home and to expand the definition of "family" beyond that based on marriage.

Those comments aside, I believe we need to pass this important amendment to respect the privacy of couples and to show the compassion that couples facing the trauma of marital breakdown so clearly deserve and require.