Charles Flanagan (Laois, Fine Gael) | Oireachtas source

-----as tongue-in-cheek. I recall however - and I say this in the context of all referendums - opinion polls in April and May 1986, which showed that in excess of 60% of the Irish people were in favour of change. When the preferences were counted in June, the percentage in favour had fallen from 61% to 36%. A total of 63% of the electorate rejected the proposition at that time. When we, as politicians, put questions to the people, we need to exercise the type of caution mentioned by Senator Bacik. My concern about the amendments before us is that, through them, Senator Ruane proposes to remove from the Constitution a requirement for proper provision and the requirement that a decree of divorce must be granted by a court. The requirement that there be no reasonable prospect of reconciliation between the spouses would also be removed. I heard the reasons put forward. In the context of this issue, I was keen that we would achieve consensus on the question that would be put to the people with a view towards gaining their approval on 24 May. In looking at the Dáil debates of some weeks ago, it was clear that many contributors favoured the retention of the requirement for proper provision. This was also reflected in the outcome of consultations I have had with other Oireachtas Members over recent months and in my consultations with party groupings.I am of the view that proposing an amendment that would remove the proper provision requirement would have the potential to complicate matters and add a degree of complication to the question to be put to the people in the referendum. I am also firmly of the view that it would open up a wider sphere of debate on what might be described as a clean-break divorce and on the matter of prenuptial agreements. While there may certainly be merit in having these debates, my concern is that they would divert public attention from the immediate primary purpose of the minimum living apart period and the issue of the recognition of foreign divorces. As I mentioned on Second Stage, the Law Reform Commission has included in its fifth programme of law reform an examination of the proper provision requirement for divorce. The outcome will inform future proposals for any legislative reform in this area. I would, however, be reluctant - I will go further and say it would not be prudent - to propose an amendment to the proper provision requirement in advance of an examination of the issue by the Law Reform Commission of the substantive debate on the issue involved, both in the Seanad and the Lower House and in the wider public sphere. I am very keen that we now act in such a way that the focus will be on reducing complexity and mitigating the vexed issue of financial exposure, which is an important factor in current family law proceedings.

Regarding the requirement that there be no reasonable prospect of reconciliation, I would defer to Senator Bacik and other Senators, but my understanding is that this requirement does not often prove to be a difficulty in the matter of a practical application for a divorce. I have not been in practice in this area for some years, but my understanding, as someone who engaged in the practice of family law, is that the requirement that there be no reasonable prospect of reconciliation is viewed as a formal proof which must be satisfied. Because of this, I believe the retention of this requirement is unlikely to impede any significant number of persons in bringing applications for divorce in any event. I am also conscious of a not insignificant degree of hardship now faced by couples in the context of the current delay imposed by the constitutional reference to four out of the preceding five years. I am keen, however, that we put a question to the people that is reasonably straightforward, answers to a legitimate public demand and can be approached with a fair wind from these Houses. This is why I will conclude by suggesting to the Senators, or Senator Ruane specifically, that the introduction of a greater level of complexity at this stage is not consistent with the fair wind we received in the Dáil and which I was pleased to note on Second Stage in the Seanad. I am anxious to proceed, insofar as I can, on the basis of consensus.