Lynn Ruane (Independent) | Oireachtas source

Tairgim leasú a 2:

I leathanach 7, idir línte 1 agus 2, an méid seo a leanas a chur isteach:

"CUID 1

2º Féadfar socrú a dhéanamh le dlí chun scaoileadh ar phósadh a rialáil.

CUID 2

2º Provision may be made by law for the regulation of dissolution of marriage.".

I move amendment No. 2:

In page 6, between lines 1 and 2, to insert the following:

"PART 1

2º Féadfar socrú a dhéanamh le dlí chun scaoileadh ar phósadh a rialáil.

PART 2

2º Provision may be made by law for the regulation of dissolution of marriage.".

I thank the Minister for being in the Seanad this afternoon.

I am moving my amendments to the Bill to amend the Constitution on the dissolution of marriage. This continues from our discussion on Second Stage where Senator Bacik and I expressed concerns about the scope of the proposed referendum as it currently stands.

As we discussed on Tuesday, the current provision of Article 41.3.2° reads that three main conditions have to be satisfied before a court can grant a divorce: that the spouses have lived apart for four out of five years; that there is no prospect of reconciliation between the spouses; and that proper financial provision has been made for spouses, children and dependants.

I welcome that the Bill and the proposed constitutional amendments will remove the provisions on time limits from the Constitution. However, it leaves the rest of Article 41.3.2° intact, ensuring these relatively complex and detailed provisions will remain in the Constitution to further govern how dissolutions of marriage will be granted after the referendum would be, hopefully and presumably, successful.

There is concern regarding this decision to leave these provisions in the Constitution as while the time limits will be gone, they may pose unnecessary barriers, delay, and distress to those seeking dissolution of marriage. While these provisions remain in the Constitution our ability to legislate on these ambiguous terms is limited and will always be open to judicial interpretation and reinterpretation. Without the possibility of stability and continuity in this area, the State risks posing additional and unnecessary distress on former spouses and their children as it will not be able to guarantee with confidence how dissolutions of marriage will proceed through the courts.

This is the concern, and one which I believe is valid under the current proposals. These provisions were originally inserted in the Constitution with the expressed intention of making access to divorce more restrictive and it is not comprehensive to fail to touch the remainder of the article in question.

My proposed amendment, therefore, would delete the entirety of the current Article 41.3.2° and replace it with the language drawn from the empowering provision on the termination of pregnancy inserted into Article 40.3 by last year's successful referendum repealing the eighth amendment, and states: "Provision may be made ... for the regulation of dissolution of marriage." This would ensure that reference to the dissolution of marriage would be retained in the Constitution and would be in line with the advice given by the Attorney General on similar concerns relating to the termination of pregnancy provision. It would ensure the Oireachtas would be free to legislate for these exact same issues, that is, time limits, the prospect of reconciliation, and proper provision in the ordinary primary legislation and outside of any constitutional restrictions. It is a legally robust proposal that draws from established legal and constitutional precedents and would withstand the high levels of scrutiny required for any proposed change to the Constitution.

If this change were accepted, we would then be able to provide a clear legal route in legislation for how a marriage would be dissolved with straightforward provisions that would be clear to the public and the Judiciary and would allow for a divorce case to proceed along a clear, transparent and reliable process in the courts. It would be a superior way to conclusively deal with this long debated issue in Irish politics and to avoid the prospect of a fourth referendum on divorce which, I am sure, fills everyone with dread.

I hope that the Minister could clarify a couple of issues as a result. Have there been discussions in the Department as to how these constitutional provisions might play out with the accompanying time limits in the courts? Was he planning to account for these issues in the primary legislation that he will bring forward if the referendum is successful? Has the Attorney General been consulted on how much space there will be to regulate these provisions legislatively?

I welcome that the Law Reform Commission, LRC, will include an examination of the proper provision requirement as part of its next programme of work, but will the Department monitor how, for example, the prospect of reconciliation provision is interpreted? As I mentioned on Tuesday, concerns were raised by Dr. David Kenny of Trinity College that the time limit provided some form of cover for the reconciliation provision and we want to ensure that the prominence of the reconciliation provision after the referendum does not ensure that Ireland moves away from its system of no-fault divorce. Concerns have been raised that judges may feel obliged to make substantive inquiries and investigations of the factors causing a marital breakdown to be fully satisfied that there is no prospect of reconciliation. Judges would, of course, just be fulfilling their duties under the Constitution by doing so but would greatly increase the distress to the individuals involved as their private romantic lives were opened up and analysed in court. With the provision remaining in the Constitution, this remains a possibility.

It is Dr. Kenny's view that there would be space to set out guidance in the primary legislation for the criteria and factors that the courts may have regard to when considering whether to grant a dissolution of marriage - nothing that would be binding on the courts but merely some form of indiction of the view of the Oireachtas on how these issues could be dealt with and managed fairly by the Judiciary. Is this an approach that the Minister is considering in the legislative changes that will come if the referendum is successful? If we are assured that he was aware of these issues and looking to see how they play out in the courts, perhaps these concerns could be tracked and responded to as needs be. However, that would seem to be an inferior approach to removing the provisions altogether.

These are complex issues, and that is why I table the amendment. If the amendments were to be accepted, we would be going to the people confidently saying that the issue of divorce will never be on the ballot paper again. Without the change I propose, I do not believe we could do so with that same confidence.

We are close to the date planned for the referendum. None of us wants any undue delay to this important change but these issues are worth debating and teasing out further. I look forward to the Minister's response.