text: | Dáil Éireann - Volume 454 - 15 June, 1995 Social Welfare (No. 2) Bill, 1995: Second Stage. Minister for Social Welfare (Proinsias De Rossa) Proinsias De Rossa Minister for Social Welfare (Proinsias De Rossa): I move: "That the Bill be now read a Second Time." Constitutional reform is one of the most important objectives this Government has set for itself during its term of office. In addition, in our programme, A Government of Renewal, we clearly underlined the need for reform of the law and the practice of Government itself, including such issues as Cabinet confidentiality, the provisions relating to bail and reform of the Ministers and Secretaries Acts. The focus of this second Social Welfare Bill this year is the proposed holding of a referendum later this year to remove the constitutional ban on divorce. One of the key issues which arose during the last referendum campaign on divorce was the extent of public disquiet and uncertainty about the implications of divorce across a wide range of issues, including social welfare entitlements for spouses and children. 1123 The Government is determined to avoid a recurrence of that uncertainty. The programme, A Government of [1123] Renewal, commits us to the preparation of a detailed paper dealing with all the relevant issues and the putting in place of all necessary legislation. This Bill seeks to achieve that in the social welfare area. It is the latest in a series of legislative changes designed to provide clarity and security for families and individuals in the event of marriage breakdown. It is also a further indication of the Government's determination to place the fundamental human and social rights of all citizens at the top of its agenda of social reform. Specifically the purpose of this Bill is to provide for the necessary changes in the social welfare code so as to ensure that no one — either spouse or child — will be disadvantaged in terms of their social welfare entitlements, as a result of their legal status being changed from married, separated or deserted to divorced. In this regard, the main areas of the social welfare code where protection is being provided are: widow's and widower's pensions; lone parents and deserted wife's schemes; occupational injuries benefits; family income supplement and prisoners wife's allowance. I want to emphasise that what we are doing in this Bill is to guarantee no loss of rights under the social welfare system arising from a change in legal status from married, separated or deserted to divorced. We are not conferring new or additional rights. 1124 The main elements of the Bill may be summarised as follows. The contributory pension scheme for widows and widowers is being extended to enable a divorced person who has not remarried to qualify for pension on the death of their former spouse. This means that on the death of a divorced person, his or her former spouse will be able to qualify for a contributory pension on either their own insurance record or that of the deceased even if the deceased has remarried. Where the deceased had remarried, their second spouse may also qualify for a widow's/widower's pension. Under the present arrangements, a married person whose spouse dies as a [1124] result of an occupational accident or disease can qualify for a pension or a gratuity, depending on the circumstances, under the occupational injuries benefit scheme. These benefits are being extended to the former spouse of a divorced person who has not remarried as well as to the existing spouse if the deceased has remarried. A woman in receipt of deserted wife's benefit or deserted wife's allowance who becomes divorced may continue to be regarded as deserted for the purposes of the deserted wife's benefit and allowance schemes. A divorced parent caring for children will be recognised as a lone parent and may qualify for a lone parent's allowance. A woman receiving prisoner's wife's allowance who becomes divorced will continue to qualify for this allowance provided the other conditions continue. A divorced woman whose former husband is imprisoned may also qualify for the allowance. A divorced person in employment who is supporting his or her former spouse and children may qualify for family income supplement if their pay is below the relevant income thresholds. A divorced person supporting his or her former spouse may receive an adult dependant allowance in respect of them. They may also receive an additional adult dependant allowance if remarried or cohabiting. The cost of the provisions in the Bill are minimal in the context of overall social welfare spending. It is likely to rise to £1 million over the next five years. Total spending on social welfare support to widows, widowers, lone parents and deserted wives at present is of the order of £630 million a year. The additional cost, therefore, will have no appreciable impact on the public finances. 1125 During Question Time on Tuesday I was asked if I could indicate the cost which would arise over a ten year and longer period. I pointed out that it would be impractical to indicate costs over a 30 year period but I undertook to indicate the cost in years ten when introducing this Bill. The main element [1125] of cost relates to survivors' pensions. The costs of paying survivors' pensions to divorced people, who have not remarried, in year ten following the introduction of divorce have been estimated by the statistics unit of my Department at £2 million. The main sections in the Bill are those dealing with survivor's pension, section 3, deserted wife's benefit, section 4, and widow's (non-contributory) pension, section 5. Section 1 deals with the definitions used for the purposes of the Bill. Section 2 deals with death benefit which is a payment available under the occupational injuries benefit scheme to the dependants of a person who dies as a result of an accident at work or an occupational disease. It includes payment of a widow's pension and a dependant widower's pension or gratuity. The purpose of this section is to allow a divorced person qualify for death benefit when her former spouse dies as a result of an occupational accident or disease. Under existing provisions, a widow who remarries or who cohabits with someone as a husband is not entitled to death benefit. This section extends those provisions to widowers. 1126 Section 3 is central to the thrust of this Bill. Its purpose is to ensure that a divorced person may qualify for survivor's pension on the death of his former spouse provided he has not remarried or is not cohabiting with someone as a husband. In addition, this section extends to divorced persons a number of provisions relating to widows and deserted wives. For example, it is not necessary for a widow or widower to satisfy the contribution conditions for entitlement to survivor's pension if the deceased spouse was entitled to an old age (contributory) pension or retirement pension which included an increase in respect of an adult dependant. Similarly, a woman in receipt of deserted wife's benefit is not required to satisfy the contribution conditions for survivor's pension on the death of her husband. Both of those provisions are [1126] extended to divorced persons under section 3. Section 4 provides that a deserted wife who becomes divorced may continue to be regarded as a deserted wife for the purposes of the deserted wife's benefit scheme. A similar provision in relation to deserted wife's allowance is included in section 6. Section 5 provides that a divorced woman who fails to qualify for survivor's pension on the death of her former husband may qualify for widow's (non-contributory) pension, provided that she has not remarried or is not cohabiting with someone as a wife and, of course, that she satisfies the other conditions such as means. In addition, this section also provides that a divorced woman in receipt of deserted wife's allowance shall, on the death of her former husband, be entitled to receive a widow's (non-contributory) pension at the same rate as her deserted wife's allowance. A similar provision is included in section 7 in relation to prisoner's wives. A woman in receipt of prisoner's wife's allowance who becomes divorced may continue to be regarded as a prisoner's wife for the purposes of this scheme. In addition, this section also enables a divorced woman whose former husband is imprisoned to qualify for prisoner's wife's allowance. Section 8 performs a similar function in respect of lone parents by ensuring that the definition of a lone parent for the purposes of the lone parent's allowance is extended to include a divorced parent. This will give proper recognition in social welfare legislation to divorced parents. Section 9 extends the definition of a family for the purposes of the family income supplement scheme by including a former spouse where he or she is wholly or mainly maintained by the claimant. The effect of this change is to enable a divorced person who is maintaining his or her former spouse and children qualify for family income supplement. 1127 [1127] Section 10 contains a number of changes to existing practices in relation to adult dependants, as follows: the definition of an adult dependant is being extended to include a divorced person, a similar extension is being made to the definition of a spouse in the old age pension scheme which is used to determine entitlement to an increase for a spouse, and provision is being made for regulatory powers under which a person may receive more than one increase in respect of an adult dependant and for determining the circumstances in which a person is or is not to be regarded as wholly or mainly maintaining another person. Section 11 contains the usual provisions relating to the short title and the construction of the Bill. It also provides that the provisions of the Bill will be brought into force by way of a Commencement Order. The thrust of these legislative proposals is to ensure that neither divorced persons nor their children will be disadvantaged in terms of their social welfare entitlements. This required us to look critically at the level of additional protection that will be necessary following the introduction of divorce. I am satisfied that we have approached it in a straightforward and comprehensive manner. All the changes which require to be made in legislation are made in this Bill. In order to give full effect to the `no loss' principle, it will be necessary to make some adjustments to the treatment benefits scheme and the free schemes to which many pensioners and others are entitled. As these provisions are governed, respectively, by regulations and by administrative measures, the required adjustments do not involve changes in the primary legislation. I intend to introduce them, as appropriate, at a later date. 1128 In the meantime, I am fully satisfied that this Bill represents a just, comprehensive and caring approach to securing the rights of all adults and children [1128] directly affected by marriage breakdown. I, therefore, have no hesitation in commending it to this House. Mr. J. Walsh Mr. J. Walsh Mr. J. Walsh: This is an important Bill which deserves close critical consideration. The preamble to the explanatory memorandum states: The Bill provides for the necessary changes in the Social Welfare Code so as to ensure that no spouse will be disadvantaged in terms of his or her social welfare entitlements as a result of his or her legal status being changed from married, separated or deserted to divorced. It is essential that the Bill provides for all the necessary and essential changes in the social welfare code and it is critical that it is as carefully, correctly, expertly and effectively constructed as possible. As the Bill was constructed in the light of and will have fundamental implications for divorce it is no harm to consider Article 41 of the Constitution. I will quote sections of the Article which are relevant to the debate. Article 41.1. states: 1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. 2º The State, therefore, gurantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State. Article 41.2. states: 1º In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. 1129 2º The State shall, therefore, endeavour to ensure that mothers [1129] shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. While bearing these in mind, we must also bear two other words in mind "divorce" and "reality". Recent statistics show that 75,000 people are living with the tragedy of a broken marriage. In the 1991 census, 55,000 people declared they were separated. Judging by the rise in demand for judicial separations and the single person's allowance that number has increased by thousands. It is obvious there is a growing need to deal with the many aspects and consequences of marriage breakdown. Marriage breakdown is a fact of life. More is involved than the issue of getting a divorce. It necessitates the introduction of sensible and effective legislation relating to marriage, children, maintenance, legal aid and family courts. We should aim to help people live their lives in dignity and without pointless financial and legal harassment. Above all else, we need to remove the sense of threat which, as we know from the last referendum, is very real. People suffer enough stress and we should not add to it. On the last occasion marital breakdown became a national issue a sense of threat prevailed. Families, married couples, separated people and women felt threatened and no doubt these feelings were passed on to children. We should aim in the Bill to remove any sense of threat, be it perceived or real. 1130 Our national regard for marriage and the family as set out in the Constitution will help us in formulating a response which protects the vulnerable and does not punish people who suffered the trauma of irretrievable marriage breakdown. Marriage breakdown can be emotionally crippling and we must ensure that it is not financially crippling. On the last occasion people, having considered the practical effects of divorce, concluded it would be financially disadvantageous to them and voted against it. We must reassure those people on this occasion, without minimising the [1130] adverse effects of martial breakdown or sweeping aside unpalatable facts. Marital breakdown is a growing problem which needs to be dealt with in a sympathetic way. The Fianna Fáil Party will support the amendment of the Constitution to allow for remarriage. It is determined to uphold in a positive way the primary role of the family in society. It regards the protection of children and vulnerable spouses as particularly important. In other words, we want to give every assurance to the people left behind, so to speak, as a result of marital breakdown. All necessary outstanding legislation should be expedited and any constitutional challenges decided before the referendum. Our desire to deal with this matter in a correct, timely and considered manner has led us to establish a committee on family law and marriage breakdown under the chairmanship of Deputy Michael Woods, the Fianna Fáil spokesperson on equality and law reform. This committee will have available to it all the expert legal advice necessary to ensure that the most comprehensive report possible is drawn up. As this Bill is part of the legislative process steering us towards the introduction of divorce it is essential that we give a considered and timely response to its contents and implications. The vast majority of people who marry live together in a life long union. However, a minority of people have their hopes and expectations of a permanent union dashed. Marriages break down and couples separate. Some of them arrange a legal separation by way of a separation agreement, others get a judicial separation, a number get divorced abroad — many of these divorces are not recongnised here — and a very small number get civil annulments. 1131 The breakdown of marriage brings with it painful emotional, psychological and financial problems, with both spouses having to make substantial changes in their style and standard of living. Arrangements must also be made to look after any children. Fianna Fáil [1131] supports the principle that the spouse and children left behind, so to speak, as a result of divorce are not disadvantaged or discriminated against in any way in terms of social welfare entitlements. While I totally accept the need to substantially amend social welfare legislation to cater for the possible enactment of divorce provisions, I am dismayed at the minimalist nature of the suggested amendments to the Social Welfare Act, 1993, and the poor quality of the Minister's homework on this vital matter. The so-called explanatory memorandum throws very little light on the implications of the Bill and the Minister's press release on the day the Bill was published was an insult in terms of elucidation — it was plagiarised from the explanatory memorandum. If we are talking about clarity and security, we must let people know the precise implications of the Bill. When I queried some matters during Question Time yesterday I was fobbed off by the Minister who said there was no such thing as an explanatory and financial memorandum. That is not true. I have with me the Maternity Protection Bill, 1994, and the Stillbirths Registration Bill, 1994, both of which have an explanatory and financial memorandum. Given that we are talking about clarity and security there should be an explanatory and financial memorandum to this Bill. What is worse is that the Minister said in the House that there was no such thing as an explanatory and financial memorandum. 1132 I accept the need to substantially amend the 1993 Act but there are some odd and contradictory themes running through this Bill. For example, the Bill deals with social welfare payments as if the recipients were still married. Section 6 provides that a deserted wife who becomes divorced may continue to be regarded as a deserted wife for the purposes of the deserted wife's allowance. The same applies in the case of the deserted wife's benefit scheme. Anomalies abound throughout the Bill which [1132] was obviously hastily cobbled together. While reference is made to deserted wife's benefit and lone parent's allowance there is no reference to unemployment or disability benefit. It is significant that there is no reference in this Bill, which will have severe implications for children who will suffer the consequences of marital breakdown, to the status of the child. Neither is there any reference to the costs of the payments provided for and the consequent implications for the taxpayer. The Minister has said in the media and the House that the cost will be £1 million over the first five years. Today we were told the cost will be £2 million over the first decade. This is not a true reflection of the cost of marital breakdown on the social welfare system. I ask the Minister to tell us the real cost to the taxpayer over ten, 15 and 20 years. Have the provisions in the Bill been thoroughly costed? People want assurances and there is little point in saying the cost will be £200,000 per year over the first five years and a similar amount over the next five years. The introduction of divorce will undoubtedly exert a substantial influence on the socio-economic fabric of our society, with those already financially deprived most at risk. A plethora of problems come to mind. For example, there is likely to be a substantial increase in the number of lone parents. In many cases the State will have to provide extra housing. The Minister tried to fob me off yesterday by saying that the Department of Social Welfare has no responsibility in regard to housing. Proinsias De Rossa Proinsias De Rossa Proinsias De Rossa: I did not tell the Deputy anything yesterday. Mr. J. Walsh Mr. J. Walsh Mr. J. Walsh: It has a responsibility in this area, and it is frightening that the Minister knows so little about his brief that he does not know about the rent and mortgage interest subsidy allowances. Proinsias De Rossa Proinsias De Rossa 1133 [1133] Proinsias De Rossa: I did not tell the Deputy anything yesterday. An Ceann Comhairle Seán Treacy An Ceann Comhairle: Let us hear the Member in possession without interruption. Mr. J. Walsh Mr. J. Walsh Mr. J. Walsh: These allowances are paid by his Department and have to be taken into account. The demand for the family income supplement will escalate and a sum of £200,000 per year will not be adequate to meet these increased demands. A recent publication entitled Divorce in Ireland — Who Should Bear the Cost reminds us that successive Governments have been reluctant to admit that we share, in common with the rest of the western world, the phenomenon of rapidly changing family structures and the associated problem of widespread poverty among lone parents which has not been costed in this case. It signalled the dearth of research that went into this matter when we did not have a proper explanatory memorundum and a press release to go with the launch of the Bill. There is a grave responsibility on any Government implementing divorce facilities to ensure that the next consequence of its availability is not increased economic deprivation. A minimal requirement for the Government, particularly for the Minister for Social Welfare, is to carry out the necessary preparatory analysis to identify the specific nature and extent of supplementary support which will be required to counter the economic side effects of divorce. Regrettably and inexplicably this has not been done to date. The Minister has shown a consistent response to any form of criticism or highlighting shortcomings, he simply blames Fianna Fáil. The fact that he is responding to comments on what are his policy decisions does not seem to matter. Proinsias De Rossa Proinsias De Rossa Proinsias De Rossa: The Deputy should have talked to the former Minister before he wrote the speech. Mr. J. Walsh Mr. J. Walsh 1134 [1134] Mr. J. Walsh: He blithely abandons all responsibility for decisions good, bad or indifferent, he just blames Fianna Fáil or his predecessor. While that mode of behaviour might be understandable from the Opposition benches — where he did so to good effect for many years — it is totally unacceptable from a Minister holding the key portfolio in Government with responsibility for the people he is supposed to be looking after. I strongly appeal to the Minister to seriously address the many vital social welfare issues requiring immediate attention. In particular, he must comprehensively assess the wide-ranging socio-economic implications of the possible introduction of divorce legislation, many of these consequences will have direct relevance to his Department. In relation to the details of the Bill there are myriad ambiguities and the people need precise answers. There is no point in holding a second referendum if people do not know what they are voting on. In the Bill "husband" is defined a number of times. The words "family", "spouse" and "couple" get new definitions. Is the definition of the family, as defined in the Constitution, to be amended by section 9 of the Bill, without a referendum? Where will this redefinition end? 1135 Section 7 outlines an absurd situation where a divorced woman whose former husband is in prison is entitled to apply for prisoner's wife's allowance. In section 9 the definition of "spouse" not only means a man and woman living together as husband and wife but also means a party to a marriage that has been dissolved, an ex-spouse. It is unclear from the Bill what rates of payment will operate. People want to know precisely what rates will operate. Will some lone parents, deserted wives and prisoners be treated differently from others? Will the social welfare system categorise women into different groups of divorcees? What will be the position of those who are separated and do not wish to be divorced? How will they be categorised in the social welfare system? [1135] This potential group is not mentioned in the Bill. Will they have to declare their relationships to receive benefit? The concept of dependency and its negative consequences for women not only persists in this Bill but is strengthened even when a woman is divorced. For the purposes of social welfare she is still classified as part of her husband's status. Section 6 provides that a woman who has been deserted by her husband continues to be a deserted wife even where her marriage has been dissolved. Instead of moving to a position of individualised rights, this Bill is introducing the concept of derived rights whereby an ex-wife has an entitlement to an allowance as a result of her ex-husband's contributions. For the past 70 years we have been trying to move away from that situation. Entitlements are discussed in this Bill as opposed to rights. Entitlements are conditional in nature. In this case they are dependent on a woman's relationship to a man and rather than payment being an individual right, awarded on the basis of need, running through this Bill is the concept of conditionality. This is the weakest form of protection possible for women. The Social Welfare (No. 2) Bill highlights the short term approach taken towards social welfare. Instead of adapting to present and possible new family structures it has made the position more complex and confusing. 1136 If both parties get divorced a number of times what will be the cost be to the Exchequer? We are told it will be minimal — £1 million over five years and £2 million over ten years. I believe it will be much more than that, for the reasons I outlined. Will the taxpayer be willing to bear the brunt of these costs? What constitutes cohabiting? Does it mean staying a certain number of hours of staying overnight? How will the Department monitor this? Will guidelines be prepared in relation to it? There is no mention of alimony. The Minister appears to have forgotten his new plans with regard to a lone parent's allowance [1136] which was announced with great fanfare many months ago. Are we witnessing the rainbow Government with its "publicity over substance" syndrome? What happened to the plans to abolish means testing contained in his mid-February announcement regarding the new lone parent's allowance? These are some of the questions and there are many more which need to be answered. One relates to the issue of children's allowance. Which spouse will get it, in what circumstances and for how long? We must never lose sight of the fact that very often marital breakdown involves an adversarial relationship which could well cause problems, particularly when financial records need checking with respect to social welfare problems. The question of availability and adequacy of counselling services needs to be addressed. There is no reference in the Bill or in the explanatory memorandum to counselling. Surely the provision of finance for counselling is an essential requirement. Where there is an adversarial problem the woman may have to get free legal aid to ensure she is properly advised. What will happen in the interim between a referendum and the granting of divorce after, say, five years? We do not know from the Bill or the explanatory memorandum what transitional arrangements will apply. The people need to know what transitional conditions will apply. If, for example, a referendum is held and a five year waiting period for divorce applies, beneficiaries will not see any changes until the next century. Will people have to claim supplementary welfare allowance in the meantime? If this is the case it will reverse decades of progress in social welfare but we want to know. The people will not vote for a pig in a poke. 1137 While reading through the Bill I kept at the back of my mind the Combat Poverty Agency report 1990 on the financial consequences of marital breakdown which highlighted the uncertainty of payment of family maintenance, [1137] despite a court order to do so. This survey found that 60 per cent of maintenance awards by the court, in support of a spouse, were for amounts less than supplementary welfare allowance. In a further 21 per cent of cases, the amount awarded was less than the maximum personal rate of deserted wife's benefit and in 20 per cent of cases only the wife was awarded more than she might receive if she qualified for the highest relevant social welfare payment. In 6 per cent of cases no award was made. The Combat Poverty Agency report confirmed the experience in other countries, which have a similar modern code to ours in relation to family maintenance, that long term reliance on State support is the inevitable consequence for many couples who separate. Has any thought been given to ensuring that delinquent spouses who leave vulnerable people behind are made to pay maintenance or will the taxpayer have to pick up the tab in all instances? In discussing the contents of and omissions from the Social Welfare (No. 2) Bill we must not forget that the Minister for Social Welfare has treated vulnerable people badly. They have been granted an increase of 2.5 per cent only. Will those who are vulnerable following marital breakdown have confidence in a Minister who has betrayed and treated people so shabbily? Despite all the bluster both inside and outside the House the truth has come out. People are now being paid an extra £1.50 per week but the extra £9 they will receive as a result of the increase being paid six weeks earlier than normal will not carry them very far. It is of consequence that the Minister was enlightened at his national conference and was forced to admit that the figure of 2.5 per cent was grossly inadequate. He gave the same response to a parliamentary question yesterday. I am pleased that it has now dawned on him that he has let these people down in an uncaring way. 1138 It is alarming that people will not be convinced, because of the failure to conduct any quality research in preparing the Bill, of how they will fare following [1138] marital breakdown. They need reassurance. As I have said many times before, aspirations and sympathy are of no value to those in receipt of social welfare payments when they have to go to the credit union or a loan shark on a Thursday or Friday evening to obtain funds to see them through the weekend. They need a reasonable income to maintain a reasonable standard of living. This Bill has been badly researched. There is vagueness, ambiguity and omissions from each section. We should ensure clarity and security before people are asked to make a considered decision in a referendum. Social welfare recipients and those who are emotionally and financially drained following marital breakdown need the support of the entire community if they are to survive and be asked to make a momentous decision. Their dependant children also need adequate support payments. Following the last referendum we know what such people will be demanding. They are entitled to comprehensive answers to their questions. I sincerely hope the questions I have raised will be answered. I will be tabling a number of amendments on Committee Stage. On the evidence to date, regrettably they will not receive the information or support to which they are entitled from the Minister and the rainbow Coalition. Ms Keogh Ms Keogh 1139 Ms Keogh: The battle lines are now being drawn for what promises to be yet another protracted, bitter and divisive debate on an amendment to the Constitution. As we address the issues that must be addressed in dealing with divorce legislation, certain facts must be acknowledged. In common with every other western country, Ireland has seen a fundamental and, it would appear, permanent shift in the way family relationships are structured. It is a sad fact but marriage breakdown occurs and we know the figures. It is occurring more frequently and the fact that there is no legal provision for divorce has not had any effect on the trend. The fact [1139] that Irish levels of marital breakdown have not yet reached the rates in other countries, notably the United Kingdom, has little to do with the absence of divorce and far more with the fact that Irish society remains more stable and cohesive than many other western countries. Irish people value the family and family relationships more than any other country in Europe, if not the western world. In the approaching debate it should never be forgotten that these values which place the family at the centre of Irish life are important and should be fostered and preserved. There is no contradiction in valuing the family and being in favour of divorce. While healthy families are at the heart of a healthy society, when a marriage breaks down people must be allowed to make arrangements in an ordered and dignified manner for the division of property and the care of children. This has not received enough attention in the emotive debate on the divorce issue. If any society so wishes, it should afford people a second chance. If it decides that separated people or those who wish to separate should have a second chance, they should have the opportunity to remarry. The Progressive Democrats since their foundation— they were almost alone at the time— have favoured the introduction of divorce. Miss Flaherty Miss Flaherty Miss Flaherty: It has been Fine Gael policy since 1978. This policy was adopted by the Ard Fheis. Ms Keogh Ms Keogh Ms Keogh: Before the last referendum we campaigned vigorously for a positive outcome. We support the Government in its wish to hold a referendum but this does not mean that we will stay silent or tie our hands if we believe it is going about something in the wrong way; we will not be led down a cul-de-sac just because we happen to agree to a referendum. 1140 While we have always favoured the introduction of divorce, we oppose the [1140] proposal to write the conditions under which divorce would be granted into the Constitution. We should all realise by now that no good came of the 1986 abortion amendment. I am amazed that the Government does not seem to have learned anything from that debacle. The Minister for Equality and Law Reform has come up with a number of arguments on why the conditions under which divorce would be granted ought to be written into the Constitution. It appears that his latest argument is that it is necessary to do this in order to avoid any internal conflict in the Constitution having regard to the terms of Article 41.3.1º which states that the State pledges to guard with special care the institution of marriage on which the family is founded and to protect it from attack. That argument is a red herring and one born of desperation. The Minister states that this formula is necessary in order to be in harmony with article 41.3.1º. In doing so, he is buying into a conservative, anti-divorce agenda, as the argument contains within it an acceptance that divorce is an attack on marriage. This is an extraordinary stance for any Minister to take. This is about as logical as proposing constitutional regulations for the conditions under which funerals are undertaken on the grounds that funerals are an attack on life. Regardless of whether we have divorce it is undeniable that marriage breakdown occurs. 1141 The Government's policy on divorce is being driven by the Labour Party and its policy agenda can be boiled down to a principle: they wish to go to the people at the next election as the party which brought in divorce and free third level education. I do not know if the people will fall for this. The Minister's latest justification for this wholly unjustifiable intention to write the conditions under which divorce would be granted into the Constitution has nothing to do with the internal textual harmony of the Constitution because if that were the case, on any logical analysis, a simple deletion would be more likely to result in harmony than the insertion of a complex [1141] formula of words has have not yet been published and the import of which, is entirely uncertain. The Minister is falling into the trap of demonstrating his determination to do anything he thinks will increase his chances of advancing his policy agenda. In doing so he is diminishing the status of the Houses of the Oireachtas by implying that we legislators cannot be trusted with the task of legislating for divorce. More fundamentally, he is insulting the Irish people by debasing the Constitution to the level of a glorified opinion poll and by interfering with it to further his own political agenda. In recent years the Minister for Equality and Law Reform has engaged in a programme of legislation—I participated in it to a great extent—the stated object of which has been to put in place, prior to the introduction of divorce, a comprehensive legal code so the electorate will know exactly what it is voting for in the referendum. That is a sensible and necessary approach to adopt but, unfortunately, it has not measured up. From the beginning the legislative programme followed by the Minister, first in partnership with Fianna Fáil and now as part of the new coalition, has been ad hoc and piecemeal, characterised by minimalism. Unfortunately, this Bill is no exception to that general rule. 1142 It is nine years since the report on the Commission on Social Welfare was published. That report recommended that the social welfare system be reformed as a matter of priority and that the guiding principle to be followed in any such reform must be adequacy, redistribution, comprehensiveness, consistency and, above all, simplicity It is more than two years since the Second Commission on the Status of Women recommended that the social welfare code be amended to establish a system of individual rights and payments in the social insurance and social welfare systems. It is three years since the Labour Party in Government promised a comprehensive review of social welfare legislation. The Fianna [1142] Fáil-Labour Programme for Government stated: "The administrative requirements of the social welfare system will be simplified and will be made more compatible with human dignity and the system of payment will be streamlined". The Government went so far as to appoint the Minister of State, Deputy Burton, to oversee that process. Three years later the Labour Party, the only party that has been continuously in Government since the last election, has still failed to deliver on that promise. Despite the provisions of the Social Welfare (Consolidation) Act, 1993, which introduced some reforms, the social welfare code is still as complex, convoluted and opaque as ever. If the Government, particularly the Labour Party, was serious about reforming the social welfare system, that review would have been completed and we would have not only this minimalist Bill but a package of social welfare reforms of which the measures contained in the Bill could have formed a part. We could have had a Bill, the product of lengthy, measured and proper consideration, addressing many other issues that need attention. Instead this Bill addresses one narrow requirement, only the desire to reassure social welfare recipients that the introduction of divorce will not impoverish them. We all agree it is essential that the introduction of divorce should not further impoverish the poorest and most marginalised sector in society. We are not opposing that principle, or the provisions in the Bill, but they should be implemented as part of a package of reforms of the social welfare system. 1143 The Government should be more honest about the implications of divorce for the taxpayer. A financial memorandum should have been introduced with this Bill; it is extraordinary that was not done. The measure will be expensive and we need to know how expensive. We do not want the potential expense on the Exchequer to be used as an anti-divorce excuse. I am critical of the Minister in this regard because it [1143] leaves room for the anti-divorce lobby to create argument. We have no objection, for example, to the proposal that deserted wives and prisoners' wives should remain entitled to the same benefits in the event of divorce, but the House must reflect on the implications of the extension, through this Bill, of survivor's pension to divorced persons. The effect of the Bill will be that where a couple marry, perhaps in their early 20s, separate after a short period and 40 or 50 years later if one partner dies the other will be entitled to a survivor's pension. When will the Minister be in a position to give the projected cost of the measure ten, 20 or 50 years down the road? Miss Flaherty Miss Flaherty Miss Flaherty: The person would be entitled to another pension 40 years later and that is covered by current legislation. Ms Keogh Ms Keogh Ms Keogh: We should be absolutely clear about the implications of divorce. We cannot comment on the overall cost of the provisions from the short explanation given by the Minister this morning. I am trying to be helpful, and I believe that this is one of the sticks that will be used to beat the Government. It is indicative of the rushed way the Minister approached this matter that he seemed to give as little information as possible when, to confound critics, what one must do is give as much information as possible. Spouses living together form an economic unit. The wife who stays at home to look after the children is, in economic terms, making a very real contribution to what might be termed the family's GNP and she should be entitled to the benefit of the contribution her husband makes during the marriage. After separation or divorce where a woman stays out of the workforce to care for the children the same argument applies, but what happens where there are no children or the children have grown up? 1144 The Commission on the Status of [1144] Women noted in its report that home-makers are excluded from the social insurance system. It recommends a system whereby women working full time in the home can make their own contributions to build up their personal entitlement to a pension. There is a forceful argument for permitting women, whether married or divorced, to benefit from their husband's contributions while engaged in full time home-making. Perhaps the argument loses some force in circumstances where the couple are divorced and the children are grown up. The Minister should consider the possibility of women in those circumstances making their own contributions. 1145 In the presentation of this Bill the Government is doing what it believes it needs to do to make the introduction of divorce more acceptable. However, there are other issues that need to be addressed. Obviously the objective of the legislation is to ensure that those on social welfare should not be further impoverished by the introduction of divorce, and I accept that, but there is another pressing issue that has not been addressed by the Government. Experience has shown that marital breakdown leads to a reduction in income levels of family members. That is an unpalatable pill for the Government to have to swallow in the run-up to the referendum but it is a fact that must be faced. It must be remembered that it is not divorce that causes the financial hardship consequent on marriage breakdown; it is marriage breakdown itself—we should not confuse the two issues. That is why the Minister needs to spell out the cost implications of divorce separately from those involved in marriage breakdown. If the Minister for Equality and Law Reform wishes to fulfil his stated ambition to guard the institution of marriage, he should do so by providing real practical support for those in healthy marriages. That relates to the area of mediation and counselling for those experiencing difficulties who want to save a marriage. The Minister will not provide real practical support for [1145] healthy marriages by writing provisions into the Constitution. The Government should focus on the need to prevent persons whose marriages have broken down from falling into the poverty trap and reduce the need for them to enter into the social welfare system. Experience reveals that a hugely disproportionate number of those on social welfare are lone parents, particularly women. I ask the Minister for Social Welfare and his colleague, the Minister for Equality and Law Reform, what measures they propose to introduce to assist lone parents to get out of the poverty trap and return to work. As long ago as 1986 the Commission on Social Welfare noted that lone parent families, headed mainly by women, relied to a significant extent on social welfare benefits rather than earnings, something of which we were all aware. The factors which contribute to that are the concentration of women in low-paid employment, employment-related costs, such as travel to and from work, and, most importantly, the cost of child care. Lone parents want to work as much as everybody else, but are prevented from doing so because of the cost of child care and low wages after tax, the inevitable result of tax and spend economic policies. Has the Government any proposals to free separated spouses from the poverty trap so as reduce dependency on social welfare? 1146 I wish to refer to the issue of maintenance. If divorced families are to be kept out of the poverty trap and are not to be dependent on social welfare, an efficient and effective means of fixing a fair and equitable rate of maintenance, backed up with proper enforcement regulations, is of central importance. At present the level of maintenance paid by one spouse to another is fixed at the judge's discretion. That means that an unwelcome element of uncertainty and inconsistency is introduced into the issue of spouse and child support. Judges often make their decisions in a vacuum because the courts have not been given the type of powers they need to compel both parties to make a full disclosure of [1146] their incomes. It is all too easy for husbands — and it is usually husbands who are the main earners—to conceal their earnings from the judge. When this occurs not only the wife and children suffer, but the taxpayer has to pick up the tab. As a taxpayer, I am not happy about picking up the tab which results from failure to address that problem. We had a long and convoluted discussion on that issue during the debate on the Family Law Bill. It is crucial that those who evade their responsibilities should be made accountable. I do not like this Bill, but its provisions are necessary. We all agree that this is one of the building blocks in an edifice designed to ensure a successful divorce referendum and I am reluctant to stand in the way of anything that is helpful in that regard. I hate buzz words like transparency and openness, but it is not helpful to give minimal information particularly regarding matters we are discussing here. It is unfortunate that a financial memorandum was not published with the Bill. On Committee Stage we will have to tease out many difficulties. I am concerned about some of the provisions and definitions in the Bill. I am also concerned about the assumption that once one is married, one is always married. That seems to reflect on the position of women in Irish society, but we can tease that out on Committee Stage. Proinsias De Rossa Proinsias De Rossa Proinsias De Rossa: It applies equally to men and women. Ms Keogh Ms Keogh Ms Keogh: In terms of definitions and so on, there is an attitudinal problem and an emphasis in the Bill that women are considered differently from men. Proinsias De Rossa Proinsias De Rossa Proinsias De Rossa: That is unfair. Ms Keogh Ms Keogh Ms Keogh: We can tease that matter out on Committee Stage. 1147 Other issues need to be addressed. We have discussed social welfare in relation to the tax system and we need to consider how the provisions of the Bill will affect the tax system. For [1147] example, can husbands claim tax relief for two or three wives? The principle that people need to be reassured that they will not be disadvantaged is correct, but we must ensure also that they are not disadvantaged. I will be tabling amendments to improve the Bill. It is minimalist legislation. It is unfortunate that we are providing ad hoc, piecemeal legislation when we should be addressing this issue in a wider context. Miss Flaherty Miss Flaherty Miss Flaherty: Those of us interested in achieving a successful amendment to our Constitution and allowing people to remarry will resist the temptation to use this debate as a means to discuss the broader issues and social welfare reform, issues only marginally relevant to the debate. It is important to emphasise that this is straightforward legislation which achieves a simple task. People who walked the streets of Dublin and other parts of the country during the last referendum campaign realise this Bill is necessary and welcome. The Bill addresses one of the key issues, the extent of public disquiet and uncertainty about the implications of divorce across a wider range of issues, including social welfare entitlements for spouses and children, than during the last referendum campaign. That was one of the critical issues of great concern to separated mothers with children. While people understood the reality of marital breakdown and were broadly sympathetic to providing people with a second chance, they would not vote for something that would worsen their economic circumstances. 1148 The issue of private and social welfare pensions is a critical one. I do not know if there is sufficient public knowledge about private pensions. This was largely dealt with in the judicial separation Bill. Pension entitlements can be considered at the point of separation when decisions are made on property and other settlements. This Bill will clarify the private pension area and remove one of the causes of the shift in position in the last referendum from 60 per cent [1148] in favour to a major defeat. During that referendum campaign people concentrated on those issues. I listened to Deputy Walsh with interest and irritation. I was reminded of Deputy Woods' contribution during the debate on the last referendum when he was a key figure as spokesperson on either social welfare or health. His party's official position was that it was not opposing the referendum, but he depicted the introduction of divorce as the release of Frankenstein on the nation. Deputy Walsh was trying to find some lesser monster than Frankenstein to allow his party to engage in the same type of treble talk it engaged in on the last occasion. He claimed the Bill would change the position of cohabiting couples, lone parents and the custody of children, all of which are provided for under other legislation. This Bill does not interfere with the position of such people. Deputy Walsh is trying to confuse the issue and at best his contribution could be described in terms favoured by his party Leader, as a great deal of waffle. I find it difficult to understand the failure of both Opposition speakers to accept the costings in the Bill. Deputy Keogh correctly stated that divorce is not the point at which a marriage breaks down. People separate and marriages break down much earlier. A large number of people cope on their own and some even choose to start families. Lone parents and separations are part of society irrespective of whether we have divorce, which will allow couples to formally end one marriage and establish another if they wish. It is not surprising that the major costs in terms of marriage breakdown are already provided for in our social welfare system in the form of payments to deserted wives, lone parents and so on. Like others, I was initially surprised that the estimated figures were low but, when one reflects on the matter, it is not so surprising. 1149 The Minister identified the narrow range of pension entitlements that will be affected by the Bill, namely, pensions [1149] to widows and widowers, the lone parent's and deserted wife's schemes, occupational injuries benefits, family income supplement and prisoner's wife's allowance. While in European terms our social welfare system may not be very generous, in world terms it is, particularly in the context of economies in the Pacific. We are already providing for the majority of families where marriages have broken down and, in limited circumstances, the additional provisions of this Bill guarantee that two persons may receive certain rights currently available to one. Costings under the Bill will not be substantial. While I can understand Deputy Walsh making the most out of this matter, Deputy Keogh should be more forthcoming. If we want to successfully amend our Constitution, allow people the right to legal second relationships and establish a second family unit, we should agree that the costings in the Bill are realistic and that its provisions will ensure that women, in particular, in voting for divorce do not jeopardise their existing social welfare rights if they divorce their former partner and form a new legal relationship. It is important that Members on all sides of the House do not play politics with this matter and seek to cause confusion where it does not exist, particularly those who have declared this matter the core of their party policies since its foundation. 1150 Deputy Keogh made a rather unfair criticism of the Minister for Equality and Law Reform by suggesting that he was engaged in narrow political self-serving activity in his endeavour to put conditions relating to divorce into the amendment rather than into legislation. Before coming into the House I checked the Tenth Amendment to the Constitution Bill, 1985, introduced by Deputy Taylor which reflects the Labour Party thinking in this area. It is obvious that the Minister, Deputy Taylor, and the Labour Party have been committed to divorce for some time and neither he nor I would have difficulty in voting for the simple removal of the ban on divorce. Deputy Keogh, and indeed members of my party, believe we should [1150] fight on the high ground of principle on this issue and avoid repeating mistakes made in the context of other constitutional amendments. I would adopt a much more pragmatic approach than those who wish to put forward a straightforward amendment which would inevitably mean holding another referendum if the terms of divorce are written into the Constitution, as a result of the forthcoming referendum, and we wish to change them. It is a question of tactics rather than objectives and deciding the most appropriate way to provide an opportunity for the majority of those whose marriages have broken down, particularly those who already have second families, to establish legitimate second relationships and remarry in the eyes of the State. We are a unique society with strong family traditions, although recent events in our courts highlighted the sad reality of family life for some. However, for most children, and indeed adults, the family is the centre of their life and the source of much happiness. Children's confidence is assured in family life. Therefore, marital breakdown is regrettable and the need for divorce is an indication that an original relationship has failed, and children may be affected. Accepting divorce in a society that is so wedded to the family is not a simple matter. Those who claim it is a human right and something we must introduce must accept that others do not hold such strong views. We must pitch our attempts at their level and not at the level of those who have been convinced for some time that divorce should be introduced. This is the approach adopted by the Minister, he is not seeking a narrow political win. It would not be a win for politicians, it would mean a change in our society and give people in second relationships an opportunity to legalise them. 1151 There is constant analysis of the economic impact of divorce. If one or two incomes which supported one family is divided between two households, it [1151] leaves everybody worse off unless very particular circumstances obtain. Accepting that marriage breakdown has been a feature of life here for some time past and its incidence is steadily increasing unaffected by non availability of divorce, if we are to have a culture of remarriage we must inquire whether there has been any international study of the economic consequences of second marriages. Has there been any assessment of the number of people within new family units, who regain similar or improved economic circumstances? Would not the ability to remarry be an element of the inevitable poverty inherent in the breaking up of a family unit regardless of the household income? This Bill is a simple one, to achieve a simple objective, involving a small but important element essential in allowing people to remarry in this country in the knowledge that, in so doing, women's pensions and other rights will not be affected, and ensuring that the cost to society of this additional right will be relatively small in circumstances in which it might be appropriate to have two pensions paid, be it a widow's pension, a deserted wife's allowance, a lone parent's allowance or family income supplement. At least in theory, there is all-party support in the House for this Bill and we will achieve our objective to have a referendum successfully carried next autumn or as soon as possible, depending on the outcome and timing of court cases. I warmly welcome the Bill which effectively tackles one of the major issues of concern to women and should send out a very simple message that it is being done at no great cost to the State. We should endeavour to confine this debate to that issue, leaving the total reform of the social welfare system to a more appropriate time. If we do that, as Deputy Keogh said, we shall put in place one of the foundation stones for a successful referendum on the issue later this year. Dr. Woods Dr. Woods 1152 [1152] Dr. Woods: I agree with my colleague and spokesman on social welfare, Deputy Joe Walsh, when he says this is a Bill of the utmost importance. I must make it clear that the Fianna Fáil Party decided unanimously to support the principle of changing the Constitution to allow for remarriage but, in taking that decision, is determined to uphold positively the primary role of the family in society. The Fianna Fáil Parliamentary Party considers particularly important the provisions for the protection of children and vulnerable spouses. Our decision is in accordance with that adopted by my party when in Government, faced with a growing social problem needing to be addressed in a careful, balanced and sensitive manner, upholding the institution of the family. Deputy Flaherty mentioned the 1985 to 1986 period and quoted the references to Frankenstein by Lord Campbell who, after the introduction of divorce in Britain without adequate and comprehensive preparation, and having seen what had happened there said he had released a Frankenstein throughout the land. The point being made was that in 1985-86 the Government went ahead with a referendum without regard to our all-party Committee on Marriage Breakdown, whose recommendations were set aside by Fine Gael and Labour in what was, in effect, an attempt at political deception. None of the legislation about which we now talk had been enacted. The all-party committee had indicated that a whole raft of legislation was necessary to prepare the ground before the electorate is asked, possibly on 30 November next, to decide on the removal of the ban on divorce from our Constitution. Incidentally, that issue fell within the remit of the Department of Justice at that time, the Department of Equality and Law Reform not having been established. 1153 All Members have been endeavouring to adopt a balanced, sensitive approach to this often divisive, social issue. Most of the requisite legislation is now in place but some remains to be completed, this Bill being one of the [1153] final major ones to be passed. It is an important component of the total package receiving the support of the House. I warn Members on the other side of the House not to muddy the waters, not to engage in cheap political gibes which might damage the cause almost everybody supports. When we consider the implications of legislation on divorce for the social welfare code we must first resort to the Constitution. The Minister referred to constitutional reform, contending that is what we are about today. It is what we are about and this Bill represents important constitutional reform. The Constitution guarantees to protect the family, in particular, recognising that, through her life within the home, a woman givens the State support without which the common good cannot be achieved. In this context we must consider the measures to be taken to meet the needs of those whose marriages have broken down irretrievably while respecting and supporting the family in our developing society. Notice taken that 20 Members were not present; House counted and 20 Members being present, Minister of State at the Department of Social Welfare (Mr. Durkan) Bernard Durkan Minister of State at the Department of Social Welfare (Mr. Durkan): On a point of order, the Minister will be unavoidably absent because there are Estimates which have to be dealt with today also. The Minister cannot be in two places at one time and I wanted to explain that to the House. Dr. Woods Dr. Woods 1154 Dr. Woods: We are aware of the Minister's limitations in that respect. Prior to 1974, women in the public service were forced to retire on marriage. They could not continue to participate in the social welfare system. Since then, the marriage bar has been removed and women are no longer forced into a state of dependency on marriage. In recent years, we have sought to provide options for women in the home. The approach we adopted was that women who wanted to take up various options [1154] should be entitled to do so and the social security system should support them in taking those decisions. We began to redesign our social welfare system to reflect those new needs. It was our objective to provide social welfare support for those who worked full-time in the home, for those who worked part-time or full time outside the home, or any combination of those. We introduced social security arrangements for part-time workers and a number of other measures to support women and allow them take the options they chose. For older women we proposed to work towards making payments to them from the age of 66 onwards. More recently, the National Pensions Board published a report on this in which it also took that view and recommended that the Government pursue that approach. If such an approach was adopted, it would eliminate the present dependent status of most women over the age of 66 whose spouses reside with them. We are inclined to forget that women over the age of 66 also wish to be independent and have their payments made to them in an independent way. That is something which we must work towards and develop. For younger married women we proposed a system of credits and voluntary contributions to allow for choices and for specific periods of time out from the workplace to look after children, especially during their pre-school years. I do not intend going into the details of any of these proposals because they were comprehensively worked out and much of their detail is contained in the report of the National Pensions Board. It is necessary to understand the steps we are taking in the context of the overall social security system and the support it provides for the family within the requirements of the Constitution. 1155 In preparation for a "divorce jurisdiction", it was decided that no spouse would be disadvantaged in terms of his or her social welfare entitlements as a result of his or her legal status being changed from married, separated or [1155] deserted to divorced. The draft proposals for this new scheme had been well developed before the rainbow Coalition took office. The package we were putting forward was comprehensive, progressive and met the real needs of families and especially women in the 1990s. Let us look at what the Democratic Left Minister for Social Welfare has done. First, through the miserly 2.5 per cent increase in 1995 he has devalued all pensions — old age, invalidity, widows and deserted wives'. The Minister now admits this was totally wrong and reduced the status of those who depend on social welfare, particularly older, senior citizens who are least able to protect themselves. They have been treated particularly badly by the Democratic Left Minister for Social Welfare. Yesterday when responding to Questions Nos. 43, 49 and 53 he said: "I am not satisfied with the adequacy of social welfare rates generally." This is the type of approach he uses to avoid saying directly — as he has said elsewhere— that the 2.5 per cent increase was wrong, was demeaning and unfair to senior citizens, invalids, deserted wives, widows and many other contributors. Second, he has dropped the proposals for home-makers, young or old. This Bill contains no measures to support the family and provide for "time-out" and pensions for women who want to spend time with their families in critical periods. This is a real and growing need and one that should be recognised and catered for. The Minister has not done this and has left it aside. It would have been preferable to deal more comprehensively with the position of the family as has been proposed, but the Minister is not doing that. 1156 Third, he has made no provision for payment of pensions in their own right to women over 66. He is continuing the concept of female dependency. That is a mistake. In all of these I believe the Minister is unimaginative and woefully wrong. He is also in conflict with the clear intention of the Constitution to [1156] support and protect the family. As Minister for Social Welfare he had a glorious opportunity at this time, and I believe a responsibility, to bring in wider protections to the social welfare system in the interests of the family generally. Let us look at what the Minister for Social Welfare and his colleagues in the Fine Gael and Labour parties have done. They have simply done the minimum they can get away with. They have taken a cold and calculated decision to go for the minimum. Deputies Keogh and Joe Walsh described the Bill as minimalist and they are right. The Bill provides for what is essential but the minimum. Now was the time to proceed with the wider issues which have a bearing in my view on the family in the changing situation that could arise from the divorce referendum. This is the time to do something about it and not next year of after the referendum. It is particularly important to send a clear signal to families throughout the country that we are supporting the family and are aware of the deficiencies. It is time to begin at least to put them right. One cannot wave a magic wand and put them right all at once and we know that. Some steps were taken previously but now is the time to approach these issues in a more comprehensive way. The Minister should have done so. The Bill extends survivor's pension to include divorced people. It also brings divorced people into deserted wife's benefit, prisoner's wife's allowance, deserted wife's allowance, occupational injuries benefit and family income supplement. 1157 I remember, probably towards the end of 1993, when my then programme manager, Catherine Hazlett and I sat down in the booth with one of the officials, who shall remain nameless, but Ó Broin would not be far from the name, to discuss the detail of how we would go about these technical provisions which would be essential. We drew out on a piece of paper exactly what was necessary and it was then given to the Department to flesh out and fill in the rest of the detail. It is not [1157] that hard to say what needs to be done to provide the essential cover to do what is at least the minimum. That has been done in this Bill and a few items have been included to round it off. What the Minister for Social Welfare has failed to do is bring these questions further. On 19 February this year the Minister, Deputy De Rossa, announced in a press release that he would do away with the existing means testing scheme for lone parent's and deserted wife's benefit and replace it with a new payment which would be earnings related. He has not done so. We were waiting to see what would happen, but he did not do it. He said also he would do away with the need to prove desertion and bring equal treatment into deserted wife's benefit. He has done neither— he has retained the concept of desertion and has not provided equal treatment for co-habitees. This is not a good Bill. It is neither imaginative nor progressive, but narrow and restrictive. It seems to be consistent with the Government's cutback mentality. It is barely adequate to meet the needs of the projected "divorce jurisdiction" and the pending referendum. An opportunity to enhance the status of the family and support married women has been lost. This I believe is a mistake at a time when we are asking those same people to liberalise our family laws. It is consistent with the mentality of the Minister and the Government which once again took the shilling from the old age pensioner through its miserly 2.5 per cent increase this year. 1158 In reply to a parliamentary question the Minister said the cost of divorce would be about £1 million in the first five years but that on Second Stage he would give us a more accurate figure. He has not done that. As there is a need for openness and transparency in this regard, the Minister should give us an estimate so that we will know where we are going. The Bill is worthy of support because it does what it set out to do, but it is too narrow. The Minister is building on a narrow foundation. Perhaps on Committee Stage he will consider a [1158] broader approach. The Bill is appropriate and adequate but does not tackle all the issues it should have done. I regret that and believe the Minister has made a mistake. Kathleen Lynch Kathleen Lynch Kathleen Lynch: Deputy Woods was Minister for Social Welfare until last November. I could not agree more with him that the foundations are narrow, but they were laid by him, as he readily admits. Dr. Woods Dr. Woods Dr. Woods: The Minister knows I had broader proposals than that. Kathleen Lynch Kathleen Lynch Kathleen Lynch: I am not a Minister yet — the Deputy is anticipating my elevation. Dr. Woods Dr. Woods Dr. Woods: The Deputy is misquoting me. Mr. Durkan Mr. Durkan Mr. Durkan: All great men have been misquoted. Kathleen Lynch Kathleen Lynch Kathleen Lynch: I have written down what the Deputy said. The Deputy told us he no longer agrees with the concept of dependency, but I am not certain if that is in regard to people over or under 66 years. I am not certain either how those over 66 years are tied into the Bill in regard to divorce. The most sinister comment was made at the outset just before Deputy Walsh called for a quorum when Deputy Woods warned the Government not to upset the Fianna Fáil Party. Dr. Woods Dr. Woods Dr. Woods: I did not say that. Kathleen Lynch Kathleen Lynch Kathleen Lynch: The implied warning was that if we went too far it would bring down the wrath of the Fianna Fáil Party on all separated people in the campaign against the divorce referendum. Dr. Woods Dr. Woods 1159 Dr. Woods: On a point of order, Deputy Lynch is purposely misquoting for political reasons and what she has said would be so seen by anyone who [1159] cares to read the record. What she has said is false and ridiculous. Kathleen Lynch Kathleen Lynch Kathleen Lynch: I am glad Deputy Woods has clarified his position and that he did not mean what he said as I interpreted it. This is a very technical Bill, merely another stepping stone to ensuring a basic civil right, the right to divorce and, if people want it, a chance to remarry or to regularise a second relationship. As legislators we have a duty to legislate for the people, as we find them, which is often not as we would like them to be. The unpalatable reality is that marriage breakdown is increasing at an unprecedented rate but, as in so many areas of society, constitutional reform has lagged behind social change. Many people find it uncomfortable that we move at a pace that is not fast enough. but I find it a great comfort because it means society has been firmly set in a particular mode by the time legislators get around to instituting constitutional reform. 1160 In 1993 there were just 15,000 marriages. In the same year there were 3,000 applications for barring orders and 1,000 separation applications. A minimum of 4,000 marriages broke down, some irrevocably and some not — not all barring orders lead to the permanent breakdown of a marriage but may indicate a mere hiccup in a relationship. Despite the current constitutional ban on divorce, marriage breakdown is as prevalent here as it is in other liberal jurisdictions. In holding a referendum to remove the prohibition on divorce the Government is merely acknowledging a reality. There is not a family in Ireland today that has not been affected by marriage breakdown, if not directly then at its outer fringes. Marriage breakdown is a painful reality which no Government can alleviate, but it can help alleviate other realities such as the financial hardships that often accompany it. That is all this Bill proposes to do. It proposes to ensure that women who are financially dependent on the State do no lose [1160] because of the breakdown of their marriages. This Bill is just one part of the package designed to safeguard the wellbeing of family members in the wake of a divorce in so far as that is possible. Statistics clearly show that all women suffer in the event of marriage breakdown. If we continue to ignore that fact we are fooling ourselves, but we are not fooling the people caught up in marriage breakdown. There are peculiar statistics on women who suffer financial hardship from marriage breakdown. Women who are sufficiently qualified to take up a job or who have worked outside the home can regain the financial ground lost within a relatively short time, approximately 18 months. Women who remain in the home looking after their families are never able to regain the ground lost. It is they, the people who most need our protection, who most need the reassurance that they do not have to continue in their situation because of financial constraints, who will gain most from this Bill. Financial strain arises both during the separation process and after it. In 1993 three times as many women sought barring orders as sought judicial separations. The reason is it is cheaper to obtain a barring order. For some people obtaining a barring order is their form of separation. A barring order must be renewed continuously and this is unsettling for spouses and family members. I am aware of the progress made by the Minister for Equality and Law Reform, Deputy Taylor, in preparing the legal aid system for the introduction of divorce. Nevertheless, we must be conscious of the deficiencies in the system and ensure people are not excluded from the divorce process as a result of them or of financial hardship. We have a two-tier system at present — one where those who can afford to do so obtain a divorce abroad or a judicial separation here and the other where those who cannot afford to do so obtain a barring order and who continue to live in misery. 1161 [1161] I hope the referendum will be carried and that there will not be any hiccups. If it is, we will no longer have such a system. Those who need it will have swift access to the legal aid system. It is up to us to ensure that divorce is a last rather than a first resort. I hope the increased attention being paid to the need to expand family mediation services will ensure families have access to a variety of support systems. It is difficult to go from the state of being married to being separated. There are few mediation or reconciliation processes available. Nobody wants their marriage to fail. People usually go through a long, tortuous process in private before seeking a barring order or judicial separation. If professional help were available many marriages would not end in separation or divorce. Deputy Walsh spoke about the possible introduction of divorce legislation. I hope the referendum is successful and that all parties will unite in providing citizens with what should be a basic civil right. When it is carried I hope there will be a similar unity of purpose of ensuring families experiencing the emotional trauma of marital breakdown are not subjected to financial strain. When a marriage breaks down those involved experience a feeling of personal failure. The last thing that should be felt is financial strain. Mr. N. Ahern Mr. N. Ahern Mr. N. Ahern: The Minister said this was straightforward, harmless legislation. The word "minimalist" was used. When the referendum Bill is introduced we will have the opportunity to deal with the issue of divorce. We are talking about a possible referendum for which the Government has set a target date but the date could be altered. Noone knows if they will be alive tomorrow, never mind next November. 1162 Deputy Lynch said divorce is a civil right. That is one point of view. The people will decide that issue. The ultimate form of democracy is asking people to decide on issues put before them. The people must decide between individual rights and what is good for [1162] society. Legislation denies me some of my civil rights. The speed I drive at, the time of day I drink alcohol, how I dress or if I dress at all is governed by law. The House tries to balance the rights of the individual with the greater good of society. The people must decide whether maximising individual civil rights is for the good of society as a whole. The legislation is a welcome part of the process. However, we are jumping the gun. We do not know the wording of the proposed referendum and whether one must be separated for three years or five years. We do not know if it will help those who made a bad mistake in their life and locked themselves into a marriage which did not work or whether it will be a licence to obtain as many divorces as one likes. There is not much discussion on that aspect. If a couple must be separated for three years, having been married for one year, theoretically at age 40 one could be divorced four times. People will want to know if it will help those who made a sorry mistake or if it will be a licence to change partners as often as one changes cars. What will be the cost implications if one goes on that merry go round every few years? The Minister estimated that in a few years time the cost will be £1 million. When people who have been married five or six times die the State will incur considerable costs in the payment of benefit to their partners. This will not be a problem in the next few years but will be in the long term. The Minister said: The contributory pension scheme for widows and widowers is being extended to enable a divorced person who has not remarried to qualify for pension on the death of their former spouse. This means that on the death of a divorced person his or her former spouse will be able to qualify for a contributory pension on either their own insurance record or that of the deceased, even if the deceased had remarried. 1163 [1163] Many applicants for social welfare benefit are told they do not have adequate contributions. Will people who have been married a few times be able to aggregate their contributions? The Bill ensures that divorced people will not be discriminated against and that their benefits under the existing schemes will not be reduced. Deputy Walsh quoted from the Constitution Article under which the State is obliged to look after the family. We need to strike a balance between these aims. We should not discriminate against separated or divorced people but neither should we glorify marriage breakdown or make it more financially beneficial. Many social welfare schemes, for example, the lone parent one, are being abused. In reply to a parliamentary question the Minister said that more than 40,000 people were in receipt of a lone parent allowance. A recent study carried out by Dublin Corporation found that more than 50 per cent of people in receipt of a rent allowance were not living in those houses. Many people claiming a lone parent allowance are living in a private flat with their partners who are in receipt of a rent allowance. These people are much better off than a married couple who do not rip off the system. 1164 We should not discriminate against anyone but neither should we be seen to favour them. We have gone too far in the opposite direction and now seem to be encouraging people to break up. Women on unemployment assistance who visit my clinic know they would be better off if their husbands were not living at home and either kick them out or arrange for them to leave. A person on a community employment scheme gets an extra £15 per week while a person in receipt of a lone parent allowance can get an extra £40 or £50 per week. A work ethos in the home is important from the point of view of children who benefit from seeing their parents make a meaningful contribution to society. However, it is very difficult to understand why a person on a scheme who [1164] has managed to keep their marriage together should only get an extra £15 per week while a lone parent can get an extra £40 or £50 per week. The system is not fair and we seem to have gone too far in one direction. The Minister said: A divorced person supporting his or her former spouse may receive an adult dependant allowance in respect of them. They may also receive an additional adult dependant allowance if remarried or cohabiting. Does this mean that divorced people must support their spouses even if they are on social welfare and that the man can claim for his former spouse? Why is the word "may" used? This provision could lead to extremes in either direction. Does it mean that a social welfare female recipient will not have any entitlements in her own right, that her husband must still claim for her? This provision should be made clear as it is open to difference interpretations. People must adopt a more responsible attitude to marriage. Some people leave a relationship when the going gets tough, thus leaving their spouses or partners dependent on the State for handouts. The Minister said that approximately 41,000 people were in receipt of a lone parent allowance and that the number examined for recovery against spouses and partners since 1991 when these provisions were brought into effect was 13,700. 1165 It is a joke that 183 people only are contributing while a total of 41,000 receive payment. We have made a skit out of this. By all means the State must support people who need support but there are many men who father children and walk away from their responsibilities. This is not on. Some 41,000 lone parents are receiving benefit and 183 only are contributing anything per week. The Department of Social Welfare must be very decent and kind if they are dealing out money to everybody. I accept these people cannot all be traced but many of them could be [1165] made to pay. It is ridiculous that people walk away from their responsibilities and leave it to the State to pick up the tab. That attitude must cease. I note Deputy Lynch has left the Chamber. Democratic Left Deputies seem to turn every argument around and say that Fianna Fáil was in power for so long it should have done various things. That argument probably stood up for a couple of weeks after the new Government took office. Mr. Durkan Mr. Durkan Mr. Durkan: Sometimes the Deputy's party goes back 30 or 40 years. Mr. N. Ahern Mr. N. Ahern Mr. N. Ahern: In the context of political life six months is long enough to lose a new boy tag. At this stage the Government cannot look across the room and blame somebody else for everything. My contribution is geared more to the Minister than to the Minister of State. The Minister for Social Welfare, a constituency colleague, has been pontificating for 14 years, saying all the things he would do if he got his hands on power. He is in office now and it is about time he stopped turning around every argument and blaming Fianna Fáil. I am disappointed that the Minister who introduced the legislation this morning is absent. I realise the Social Welfare Estimates are being debated this afternoon. I am disappointed also that more Members are not present. The Minister blames Fianna Fáil for everything. When I consider his position over the years I pity him rather than praise him. He has moved from one party to another in an effort to be boss of his own house. Even now he seems to be a prisoner of the clique within his own party—the Rabbitte, Heffernan clique. He is not even master of his own little house no matter how small and he does not seem to get anywhere. I am disappointed that he had to leave to be briefed on the Estimates. If this debate is to continue, I call for a quorum before the next speaker stands up. 1166 [1166] Notice taken that 20 Members were not present; House counted and 20 Members being present, Ms F. Fitzgerald Ms F. Fitzgerald Ms F. Fitzgerald: I wish to share my time with Deputy Kemmy. Acting Chairman (Mr. Foxe) Acting Chairman (Mr. Foxe) Acting Chairman (Mr. Foxe): I am sure that is satisfactory and agreed. Ms F. Fitzgerald Ms F. Fitzgerald Ms F. Fitzgerald: I welcome the opportunity to speak on the Social Welfare (No. 2) Bill, 1995. I have been listening to the Fianna Fáil speakers and am struck by the tone of their contributions which is critical of the Bill. Theirs is an ambivalent approach, in the context of Fianna Fáil supporting the divorce referendum. This legislation deals with many of the anxieties and concerns raised during 1986. These anxieties are raised by some of the most vulnerable people dependent on social welfare who had concerns about the implications of introducing divorce. Deputy Woods referred to the lost opportunity. It is ironic that he, a former Minister for Social Welfare for many years, did not deal with the issues of dependency, which he raised only towards the end of his contribution. Instead he said that the Government— in six months—should have sorted out the concept of dependency, an issue he failed to address in his many years as Minister for Social Welfare. This Bill cannot address the broader social welfare issues and reform of the social welfare system which the Government is determined to tackle including the issue of individual rights. 1167 In the context of the changes needed, if we are to put the issue to the people in a referendum and introduce divorce, this Bill is an important building block in that process. It deals with difficult financial issues. When a couple decide to separate or if they have the option to seek a divorce, the issues which remain to be resolved are broad. They include emotional, parenting and financial issues. The links between partners who decide to separate are dealt with in the [1167] Bill which recognises that ongoing financial arrangements need to be made and what the State needs to do to provide ongoing financial security for those in receipt of a range of allowances from the State. It lays out clearly their rights in those circumstances. This is extremely important. I say "well done" to the Minister for introducing this legislation but I equally say to him that it will be necessary to conduct an information campaign to make people aware of its provisions. It seems that people are not yet clear on how they would be affected financially. There is, therefore, a need for more information. The Bill deals with a number of categories who may be affected by divorce. During the last referendum campaign there was much anxiety about the way people would be affected in a range of areas if divorce was introduced. On this occasion, the debate seems to focus on the position of children. The Bill outlines clearly what the position will be for a divorced couple in relation to widow's and widower's pension, lone parent's allowance, deserted wife's allowance, occupational injury benefit, family income supplement and prisoner's wife's allowance. I hope there will be a positive outcome to the divorce referendum later this year. We need to recognise the reality for thousands of separated couples and provide financial support for those who find themselves in this position. At the same time, we should attempt to truly support the family. That is the tone we should adopt in this debate instead of sending ambivalent messages like Fianna Fáil. I do not know to whom Deputy Ahern was referring when he mentioned that couples were on a merry-go-round, in and out of relationships. I was amazed and thought he was very insulting to the many couples who have separated. Having worked with families over a long period, it is my experience that couples do not take these decisions lightly and it is a very painful time for all involved. 1168 [1168] The Deputy adopted an unhelpful cavalier approach. It would be much better if we were to talk realistically about how we support families under stress. That is what the Government is trying to do and the facts speak for themselves. The family mediation service has been extended. A number of years ago it was under threat of closure by a Fianna Fáil Minister. It was saved and developed and its financial allocation has been greatly increased in an attempt to provide a nationwide service to families. This is extremely important. I would like to see far more couples using this service instead of becoming embroiled in complex legal disputes which are difficult for everybody concerned. The Government is committed to placing the various building blocks needed to support families in difficulty or who have separated. It has shown its commitment by improving the free legal aid service. That there have been major improvements is the message which should go out to the public. Deputy Woods is correct that there is a need to reform social welfare but I am surprised that only at the end of his speech did he begrudgingly offer his support. This is an important Bill. Although it may be narrow in the sense that it does not tackle all the areas we know as in need of reform, it deals clearly with the various groupings I have mentioned. The question of pensions has been an extremely difficult one and caused grave anxiety. People ask what will happen to their pensions if they divorce. The provisions in the Bill will apply equally to men and women. In the case of survivor's pension, a divorced man will be able to qualify for a pension on the death of his former wife in the same way as a divorced woman will be able to qualify for a pension on the death of her former husband. In the case of women in receipt of deserted wife's allowance, it is stated clearly that they will also continue to receive this allowance. 1169 There are some anomalies in terms of [1169] the language used in the Bill. It is inevitable because of the social welfare system we operate—Deputy Keogh referred to this matter—that the dependency concept is reflected in the language used. I hope we will move to rights for individual men and women as opposed to continuing the dependency concept, but that is not what this Bill is about; it is about ensuring that couples and individuals who may find themselves in this position will not be at a loss. Lone parents are also catered for in the Bill. For all those claiming allowances, this Bill is reassuring. It outlines what their financial status will be if, and when, divorce is introduced and they have the right to remarry. It does away with the worries people had in 1986. We have paid lip service to the need to support the family and have not been good at putting mechanisms in place. We have the second worst record in Europe when it comes to providing publicly-funded child care facilities. On the fundamental issue of the status of women in society, it has been said that divorce makes women poor. I am not sure if that is true as the reality is that many Irish women have no income in their own right and do not have an opportunity to work outside the home. Many women cannot be included on the live register while training opportunities are limited. Although I recognise that great efforts are being made and the Government is committed to providing child care facilities, if we want to raise the status of women, children and families, we will have to address all these issues. For that reason I welcome the Bill. It is an important building block and should be recognised as such. It is only one measure to deal with the complex circumstances that arise when divorce is introduced and people have a right to remarry. It is a very important Bill and I congratulate the Minister on its introduction. Mr. Kemmy Mr. Kemmy 1170 Mr. Kemmy: I support the calm, logical, intelligent approach adopted by Deputy Fitzgerald. It is a pity we do not [1170] hear more contributions such as that. There have been too many flights of fancy, with some people getting carried away on this issue. Deputy Fitzgerald addressed the contents of the Bill and did not indulge in make-believe. I accept on Second Stage contributors are entitled to elaborate on issues, as Deputy Ahern did. Deputy Woods, a former Minister for Social Welfare, gave a historical background of social welfare legislation which was very informative and educational, but the Bill is concerned with five main areas of social welfare reform: widow's and widower's pension; lone parent's and deserted wife's schemes; occupational injury benefits; family income supplement and prisoner's wife's allowance. Some of Deputy Ahern's reflections on marriage were bizarre. His main point was that when the divorce referendum is passed, as I hope it will be, there will be a mass exposition of marriage madness and we will become a race of Mickey Rooneys. Mickey Rooney walked down the isle about a dozen times. For a small man he certainly had plenty of energy in that regard. He seems to be in love with the idea of marriage, although he was not married very long to any woman. I do not forsee that happening here. We are not going to change our characteristics or our attitude to life because divorce legislation is introduced. To adopt that attitude is to treat people in an infantile way, as if we were a nation of irresponsible delinquents. The Deputy did not deal in a realistic way with the matter. 1171 Many issues have been swept under the carpet in the past. For example, child abuse always occurred, but for various reasons it was swept to one side. We are not a nation of paragons but of human beings. This Bill is a compassionate and civilised response to marriage breakdown. I welcome the extension of social welfare rights to people in those circumstances. The Bill proposes a change in the legal status of separated and deserted people. It confers no additional rights but is a response to the needs of people whose marriages have [1171] broken down. I hope the dire, grim predictions of Deputy Ahern are not realised. This is a Bill of rights, particularly for women who are very often vulnerable in the case of marriage breakdown. In the past women had no financial independence. When one has financial independence it is easy to be resourceful and to avail of services, but all too often in the past people in unhappy marriages could not do very much about their circumstances because they did not have the financial wherewithal. This measure is a framework for people who find themselves in that position. To listen to some of the speakers one would think the Bill will force people into marriage break-up, but that is a travesty of its intention. Those of us who have worked as public representatives over the years are well aware that marriage breakdown is endemic in our society and is on the increase for a variety of reasons such as economic pressure and incompatibility. Some people grow apart after a number of years of marriage and nobody is to blame. Nobody in their right mind envisages that, on the introduction of divorce, people will marry on multiple occasions. That would be a form of insanity. We have heard nothing about the pain, suffering and hardship caused by marriage breakdown. Those of us who know people whose marriages have broken down are well aware there is no such thing as a clean break from a marriage. There is often a great deal of pain and trauma involved, and that position will not change on the passage of this Bill. This Bill will not force people into marriage breakdown or to marry again if they do not wish to do so. No law in the world can force people to live together if that is not their wish. People in unhappy marriages cannot be forced to live together. This Bill is not an encouragement to marriage breakdown or to marry again; it merely deals with reality. 1172 Deputy Ahern referred to abuses of [1172] the social welfare code. We are not concerned with encouraging social welfare abuse but with ending such abuse. This Bill is not a charter for social welfare abuse; if it was I would say so. If there are abuses in social welfare and in other areas of society such as taxation, they should be stamped out. A sensible attitude should be adopted to people seeking information on this matter. Sensitive counselling is necessary, but sometimes the physical layout of employment exchanges is not conducive to privacy. In rural Ireland people often have to sign on at Garda barracks and so on. It is important that proper facilities are made available in employment exchanges for people who qualify for these extended benefits. It should be possible for them to receive counselling and information in private from an official qualified in that area. The Bill is an attempt to face reality. It represents a just, comprehensive and caring approach to securing the rights of all adults and children directly affected by marriage breakdown. It is very important that it be implemented in full and that we put an end to the poor law mentality that influenced so much legislation in the past. Deputy Woods outlined some of the welcome changes and measures in social welfare legislation down though the ages, but the attitude that people are receiving charity must be changed. This Bill is a compassionate, caring and civilised response to marriage breakdown and should be dealt with in a sensitive, intelligent way. I hope there will be an improvement on the debate we have heard so far. Ms M. Wallace Ms M. Wallace 1173 Ms M. Wallace: In recent years there has been a broadly constructive consensus in this House on the various subsidiary measures introduced to deal with marriage breakdown. There has been a move from the previous uncompromising polarisation of the debate, which is welcomed by people in the House and by the general public. That move has been evident since the acceptance by a Fianna Fáil Government of an Opposition-initiated Family Law Bill which [1173] resulted from the public rejection of the last referendum in 1986. The reason for such rejection was that, while a range of vital issues remained unlegislated for, the public was unwilling to place blind faith in the future actions of a presumptive and pre-emptive Government. I can understand that, and at the next referendum the same fear will exist if proper legislation is not put in place. The result of the last divorce referendum was firmly related to the fact that legislation had been dealt with inappropriately and sufficient legislation was not in place. People will vote only for what they are certain will be a clear reality in this important matter. The nonsense started again this morning when the Minister referred to the cost of the provisions of this Bill. He said that they are minimal in the context of overall social welfare spending, but most people know that is not so. He went on to say that the cost is likely to rise to £1 million over the next five years and compared that to the total spending on social welfare support to widows, widowers, lone parents and deserted wives, currently in the order of £630 million per annum. He claims that if divorce is introduced it will cost an extra £1 million over a five year period —£200,000 per annum. I do not believe the Minister is dealing with realistic figures. The public will not accept them as realistic. While the basic approach in the 1991 White Paper on Marital Breakdown was attacked by the present Government parties when in Opposition, it worked well in setting an effective agenda for dealing with these areas. Its most important issues will be to allow for a much more constructive debate when the issue of divorce is next placed before the people in a referendum. Great credit is due to those who prepared the White Paper on Marital Breakdown for setting out the important issues that need to be addressed. 1174 One of the most significant issues raised during the 1986 referendum was a genuine fear that divorce would [1174] impoverish women. Those campaigning against the referendum were justly able to point to the uncertainty which would face non-earning spouses after a divorce. That will always be a concern for women unless legislation clearly sets out their standing in the case of a divorce. It was one of the key factors which led to the above average rejection of proposals in less affluent areas, especially in Dublin. Large numbers of women were not willing to put themselves and their children in a position of potentially severe financial hardship. They need to know their financial standing in such circumstances. It is essential in dealing with that fear that the Bill is relevant and should be assessed in terms of how far it goes towards protecting the interests of women and children affected by divorce, if introduced. The Bill largely succeeds in meeting its objective in terms of the existing social welfare code. It conforms to the approach adopted by the previous two Fianna Fáil-led Governments and the preparations undertaken by Deputy Woods in the Department of Social Welfare. Fianna Fáil strongly supports the core principle that no spouse should be disadvantaged in terms of his or her social welfare entitlements as a result of separation, desertion or divorce. Difficulties arise due to the process by which the Bill has been presented to the Oireachtas for consideration, specifically the minimalist approach adopted by the Minister in outlining his justification for the specific provisions of the Bill. That must be a matter of concern to us all. Surely we have learned from the 1986 example that all issues must be clarified by the Ministers responsible. People will not buy a pig in a poke. A number of areas must be clarified before the Bill is passed and the Government's intentions concerning associated issues will need to be addressed before the intent of the Bill becomes a reality. 1175 Given that a Bill like this must be clearly explained, I was surprised at the lack of information supplied with it. The [1175] social welfare code is difficult to understand at the best of times, and when extensive technical changes such as these are proposed, surely it is reasonable to expect that proper background information would be circulated to Members and relevant bodies. The provisions of the Bill must be made clear to relevant bodies and the public. Many questions may arise because of the brevity of the explanatory memorandum and the lack of background briefing documents. As the Bill is not crystal clear there may be much unnecessary debate and the raising of unfounded concerns for those affected by its provisions. One basic omission is that there is no indication in any of the documents circulated with the Bill of the numbers who are likely to be affected by the proposed measures. The lack of that information must have given rise to the unrealistic figure of £200,000 as the cost of the introduction of divorce. The Minister must have assessed the likely impact of the proposals and the information available to him during his preparations should be made available to all. He may be afraid such information will frighten people, but it should be available and if it is crystal clear it will help the public, especially women, who will be mainly affected, to understand the impact of the legislation. 1176 As with all measures which go before the Government, the Bill must have been examined in terms of its likely cost to the Exchequer and the House should have been given that information. The result of the lack of information provided by the Minister and the speed with which the Bill has come before the House is that interested groups did not have an opportunity to focus properly on the Bill and constructively study its proposals. While it will not affect the result of the vote on this Bill, the Government has failed to work in a spirit of consensus-building which we are all endeavouring to achieve. Worse still, if the Government is not crystal clear in explaining legislation such as this it is [1176] likely to result in a reptition of what happened in 1986. There has been no indication from the Government how it considers the social welfare code should be developed to move away from the idea of dependence and towards stressing the concept of the rights of the individual. In the short time members of the Council for the Status of Women had to read the Bill, they raised an issue related to section 6. They are concerned that a divorced woman may continue to be classified as a deserted wife. We understand the intention is to stress that the woman would be protected from the loss of any benefit, but that is essentially a clumsy way of addressing the issue. In the absence of an explanation we must assume that is the logic behind it. After marriage breakdown women work hard to reconstruct their individual indentities. While we are willing to support the proposals as short term measures, we believe the Minister should bring forward proposals which reflect the independence of women in the social welfare code, specifically regarding section 6. Assuming there is not some potentially explosive issue being hidden, this minimalist approach to background information should be abandoned in the interests of maintaining an open, informed and consensus-building debate on the Social Welfare Bill and any other necessary legislation which must be in place before the proposed referendum. The Minister should immediately publish all advice he receives regarding the cost and effects of the Bill and other amendments to the social welfare code considered during its preparation, thus ensuring an open debate. People would understand what we are doing and it would assist them in the lead-up to a divorce referendum. 1177 It is vital that we seek the opinions of women's groups. Because of the speed with which the legislation was introduced, women's groups did not have an opportunity to study the Bill at length. The Council for the Status of Women [1177] had very little time to submit recommendations on the Bill. The Minister should invite the members of the Council for the Status of Women to contribute to the discussions on this Bill. That would follow the precedent set during the passage of the Finance Bill when professional bodies made formal submissions. If Government parties are not agreeable to that suggestion, as chairperson of the Joint Committee on Women's Rights I am prepared to invite members of the Council for the Status of Women to address that committee and I propose that the committee should use its powers to question the Minister on the issues. I make that suggestion in the interests of openness and helpfulness, to give women's groups an opportunity to participate in an important area and to ensure there is open debate in the public domain. An initial reading of the Bill reveals that a number of areas require clarification. Eligibility for various benefits is generally adjudicated by the source of support for a spouse at a particular time. In the case of survivor's pension, death benefit and widow's pension eligibility is limited to cases where the woman has not remarried or is not cohabitating at the date of death of her former spouse. In cases where the second relationship ends, particularly where it ends through the death of a spouse, it may happen that the various entitlements arising from the second relationship are significantly lower than those arising from the first. The potential effects on the ability of the surviving parent to support a family arising from the first relationship could be significant. This is something which must be considered. The definition in the Bill of what constitutes a family comprehends cohabitation between an unmarried couple living together as husband and wife. This has caused considerable uncertainty and concern for a number of groups. The Minister must explain how that definition will be applied in practice. 1178 A number of other potentially grey areas must be addressed. How will the [1178] entitlement of orphans be affected by the existence of a stepparent or guardian? What about children's allowance payments? How does the Minister propose to deal with cases where one of the parties does not live in the jurisdiction? Do our existing bilateral social welfare agreements cover the proposed changes? Will it be necessary to alter the manner in which qualification for additional benefit, on the basis of the number of dependants, is defined through the social welfare code? Many questions remain unanswered, but they must be answered to ensure clarity. Even if the final version of the Bill succeeds in satisfactorily amending the workings of the existing social welfare code, it may not have a practical effect. Wider issues need to be addressed to ensure that happens, the most important of which are access to information and the appeals process. Most cases comprehended by the Bill will by definition arise in the context of an antagonistic relationship. Therefore, it will be important for an individual to have sufficient access to information on their former spouse's financial position to enable them to apply for the right benefits. In cases where there is entitlement to contributory benefits it will be vital for the Department to inform the surviving children and former spouse of their entitlements. Bearing in mind the antagonistic nature of most cases, we must adopt an open approach. The points made regarding the need for advice on legal affairs apply also to social welfare matters. In a recent presentation to the Joint Committee on Women's Rights, FLAC stressed that the delays and costs faced by women seeking legal redress in marital disputes seriously undermines the effect of statutory protection. There is no reason to believe this will not be a factor also in social welfare appeals. Therefore, the Minister should introduce proposals to ensure that independent and objective advice is readily available. 1179 The Department of Social Welfare must also ensure that full information on entitlements is made available. As [1179] evident in the take-up on many schemes, in particular the family income supplement ignorance of entitlements can often lead to exacerbated hardship for families. A large number of families are not aware of their entitlements under the family income supplement scheme. If the Department does not make specific efforts to target such people, a serious difficulty will arise. This would be particularly important in cases involving a change of status because of the death of a former spouse. If the Minister makes up for his minimalist approach to background information and facilities by having an open debate on the Bill, necessary and welcome changes will be made to the existing social welfare code and in doing so he will allay public fears about the issue of divorce and remarriage. We must learn lessons from the 1986 referendum. All new legislation should be clear and concise and time should be allowed for public debate among interested groups. This would be a major asset to the public in the lead-up to the proposed referendum and I ask the Ministers responsible to note that. Mr. Bell Mr. Bell Mr. Bell: I welcome the opportunity to contribute to the debate on this legislation which is crucial to the divorce referendum. I congratulate my colleague, the Minister for Equality and Law Reform, Deputy Taylor, for having the wisdom and foresight to ensure that the Minister for Social Welfare introduced this Bill. I was Opposition spokesperson on social welfare at the time of the 1986 divorce referendum and noted the swing from a 60 per cent in favour and 40 per cent against to a 60 per cent against and a 40 per cent in favour. That reversal was not a result of the efforts of the anti-lobby campaign and those who were against divorce. It resulted from the stories young and old people were told on the doorsteps. This Bill takes account of many, if not all, of the major difficulties experienced at that time. 1180 In 1986 the people were taken for granted, emphasis focused on divorce, [1180] the division of family property and access to children, very few reflected on what would happen later. There have been many changes since then and the concept of the family has altered dramatically. Members witness this on a daily basis in their constituency clinics where we have become second line barristers or solicitors in endeavouring to resolve the difficulties created by separations, many of which are social or in the social welfare area. It is a simple matter for a person to leave his or her spouse and live with another person, but the after-effects are the main problem. Thankfully, I have had a happy married life and after 35 years I will not be contemplating a divorce. The Bill will not affect me but I, and I am sure the Minister, wish everybody could say the same. However, that is not the case and in parts of my constituency, particularly in urban areas, 50 per cent of the lower income group are separated. I have no doubt that the electorate will have learned in the intervening ten years that our laws must reflect the times in which we live. The electorate voted overwhelmingly in favour of joining the EEC, participating in the Single Market, the Maastricht Treaty and now the European Union, which means that our laws must be aligned with European law. Our officials and representatives in Brussels look after our country's interests. It is logical to conclude that, if we do not bring our legislation into line with Europe voluntarily, we shall be obliged to do so, which is recognised by the present Government and Opposition parties. 1181 The forthcoming referendum on divorce will be the first on which all the parties in both Houses will be on the same wavelength. That said, it would be awful to have to contemplate an anti-divorce lobby attempting to influence the electorate against the overwhelming opinion of their elected representatives. That could be brought about only in the manner done on the last occasion, for example, telling old age pensioners they would lose their entitlement to free electricity, travel, fuel or television [1181] licence or telephone rental. On the last occasion it was impossible to counteract the dissemination of such propaganda on the doorsteps, as the then Government had not done its homework which it discovered too late. There is now a positive, planned, controlled effort to prepare the electorate for holding this referendum on divorce, constituting one of the most fundamental changes in our history to bring our laws in line with conditions at the end of the 20th century. A large part of the education of people on their entitlements, or what entitlements they might lose, must rest with the Department of Social Welfare, the Government and Opposition parties, which must be well prepared and advertised. The electorate must receive answers to many questions that may not be covered in the provisions of this Bill. For example, Deputy Mary Wallace referred to the family income supplement. When replying perhaps the Minister will say what will happen to the family income supplement of a divorced couple who had been in receipt of it before separating and subsequently divorcing. For example, would the wife receive any portion? Would it be divided between both parties if the former family was split, some of the children remaining with the father and the remainder with the mother as happens in the case of some divorces? It is difficult to measure the implications of such circumstances without full knowledge of the terms on which divorce will be allowed and-or based, and subjecting them to the most rigorous examination. I am confident that my colleague, the Minister for Equality and Law Reform, will strike the right balance. We do not want, nor would we expect, divorce on demand; certainly I would be opposed to that concept. The correct balance must be struck but, in the meantime, the electorate's questions must be answered. 1182 Apart from furnishing leaflets to beneficiaries of social welfare, many people will be in the twilight zone, they will not be divorced, but contemplating it or [1182] have it in train, wondering if they divorce, what their entitlements will be. The rights of people already divorced will be very clear from the provisions of this Bill. They can simply go to a post office or to the Department of Social Welfare, request a leaflet on whatever benefit in which they are interested and get details. Additionally, I recommend the establishment of a panel of experts within the Department of Social Welfare with a free telephone service to the community generally so that anybody, young or old regardless of their views, can make telephone inquiries about their prospective entitlements. We must remember that in the dying weeks of the 1986 divorce campaign the 60:40 majority in favour disappeared virtually overnight. It was too late before the then Government realised what had been happening, too late to answer the questions or to counteract the propaganda then being circulated. It is very easy to engage in a propaganda campaign within, say, a housing estate. You need only tell one woman living there that if she votes in favour of divorce she will lose her benefits. In such circumstances there will be no need for the distribution of any leaflets, she will represent the best leaflet or information service because not alone will she have changed her own mind but will have influenced many others, possibly imparting misleading information. Limited information was available on the occasion of the last referendum but not enshrined in any legislative measure. This meant that the relevant points could be argued forcefully by the anti-divorce lobby who did a good hatchet job. Nonetheless, there was a certain logic in what that lobby was saying because the then Government had not done proper preparatory homework. 1183 This Bill is one necessary legislative measure in advance of the forthcoming referendum on divorce, on which I congratulate both Ministers involved. On behalf of my parliamentary party I warmly welcome it, as it provides the necessary changes in our social welfare [1183] code to ensure that no spouse will be disadvantaged in terms of social welfare entitlements resulting from marital and-or legal status being changed, whether from married to separated, deserted or divorced. The main social welfare benefits protected under its provisions are, first, a survivor's pension, which extends entitlements to divorced persons on the death of their former spouse, an important provision, provided that person has not remarried or is not cohabiting with another party. On the death of an insured person who has married more than once, the spouse and former spouse may qualify for a survivor's pension on their own insurance record or that of the deceased. The widow's non-contributory pension was a very important issue on the last occasion in respect of which this Bill provides that a divorced woman, who fails to qualify for a survivor's pension on the death of her former husband, may now qualify for the widow's non-contributory pension, which provision I also welcome. The matter of death benefit was widely discussed before the last referendum on divorce. Under existing provisions, the widow or widower of somebody who dies resulting from an occupational accident or disease may qualify for death benefit under the provisions of the occupational injuries benefit scheme. I am pleased the Bill extends these entitlements to divorced persons. The main question at that time concerned payments to deserted wives. While the level of desertion in 1986 was lower than it is now, it was on the increase. Under the terms of the Bill, a deserted wife who is divorced may continue to be regarded as deserted for the purpose of deserted wife's benefit. That is to be welcomed and it will discourage any propaganda on the issue, which was a feature of the 1986 referendum. Since 1986, that category of social welfare recipient has increased substantially. 1184 [1184] The number of women receiving prisoner's wife's allowance has increased substantially also because of the increase in crime. The Bill provides for continued entitlement to prisoner's wife's allowance where the recipient becomes divorced and entitles a divorced woman, whose former husband is imprisoned, to this allowance. That will be welcomed by the unfortunate women who find themselves in those disastrous circumstances. The lone parent's allowance is adequately covered in the Bill. It also extends the definition of lone parents for the purpose of the lone parent's allowance to include a divorced parent. This is a clever move because it will cover a number of circumstances in that category. I wish to return to the topic of the family income supplement and I ask the Minister to expand on that when replying. I understand the Bill extends the definition of a family, for the purpose of a family income supplement, to include a former spouse where he or she is being wholly or mainly maintained by the claimant. I am not too clear about what that means. Does it mean that regulations will be issued under that section of the Bill setting out in detail the method by which the benefit would be distributed in the case of separation or divorce? The Bill extends the definition of an adult dependant to include a divorced person and provides the powers under which a person may receive more than one increase in respect of an adult dependant. I congratulate the Minister for Equality and Law Reform, Deputy Taylor, and the Minister for Social Welfare, Deputy De Rossa, on a good team effort in respect of the Bill. It will be the rock on which this referendum will be won and the measures contained in it will help the unfortunate men and women who find themselves facing a divorce. I welcome the Bill. Mr. T. Kitt Mr. T. Kitt 1185 Mr. T. Kitt: I too welcome this Bill which allows us to pave the way for divorce. In 1986, when the people were [1185] asked to vote on the issue of divorce, a considerable amount of confusion was generated. It is our duty as parliamentarians, regardless of the side of the House on which we sit, to clarify all aspects of this issue when it is put to the people before the end of this year. Fianna Fáil debated this issue and adopted a particular stance on the question of divorce. We have decided to support the principle of changing the Constitution to allow for remarriage and that the constitutional ban on divorce should be removed. In doing so, we are conscious of the thousands of people whose marriage break down — a figure of 75,000 has been quoted during this debate. It is important, therefore, that we get it right when addressing this issue. Many of my colleagues raised questions about some of the details of the Bill but it is clear that in 1986, the Government of the day did not give the issue the attention it required. I am pleased that we are now discussing all aspects of it in detail. We must ensure that spouses are not disadvantaged in terms of their social welfare entitlements as a result of a change in their legal status from being married, separated or deserted to divorced. In doing that, the Bill must provide for all the essential changes in the social welfare code. It must be pointed out that essentially this is a Fianna Fáil Bill. People are inclined to attack Fianna Fáil on social issues and, perhaps, we are an easy target at times, but we cover a wide constituency. As a proud member of the Fianna Fáil Party I admit that I might differ with some of my colleagues on certain issues but we have had many lengthy debates at parliamentary party level and I respect—— Mr. Durkan Mr. Durkan Mr. Durkan: I would love to be a fly on the wall at some of those meetings. Mr. T. Kitt Mr. T. Kitt 1186 Mr. T. Kitt: I would like to be a fly on the wall at some of the Fine Gael meetings because I am sure Fine Gael [1186] would hold the same position on many issues. Having a wide range of views promotes a healthy democracy. On social issues some of my colleagues differ from me but at least we go to the trouble of debating them at length. I respect that diversity within the party. We have publicly stated our position on this issue. Fianna Fáil contributed much to this Bill. The previous Minister, Deputy Woods, put considerable time and effort into ensuring that it would be a good Bill. Ministers De Rossa and Taylor brought it forward but we were very much involved in its preparation. When he was Minister, Deputy Woods was anxious to broaden the terms of the Bill and to deal with a long standing issue, namely, the position of women in the home. Many years ago, the then Minister, former Minister of State Nuala Fennell, who shared my constituency of Dublin South, endeavoured to deal with this issue and made certain commitments to cater for women in the home. What was proposed then was admirable, pensions for women in the home on a phased basis. I regret that this Minister did not take the opportunity of dealing with that issue. According to the 1991 census, 55,000 people declared themselves to be separated. I am sure that figure has substantially increased in the past four years and we should deal with that issue. Following our meeting on the question of divorce we underlined in particular the position of children. I welcome the fact that Deputies from all sides of the House have mentioned this. We want to remove the threat that exists for many people who find themselves in vulnerable situations following marital breakdown and this Social Welfare Bill should comprehensively remove any sense of threat. 1187 The Council for the Status of Women is unhappy with the way women are presented as dependants in this Bill. I share their view. It is essential that women are recognised as independent in their own right and that must be done in this Bill. Section 6 provides that a [1187] deserted wife who becomes divorced may continue to be regarded as a deserted wife for the purpose of the deserted wife's allowance scheme or the deserted wife's benefit scheme. The Minister should address this issue and ensure that the woman's independence in these situations is recognised. The Fianna Fáil Party supports the principle that the spouse and children will not be disadvantaged or discriminated against in any way in terms of social welfare entitlement as a result of divorce. This brings us to the question of cost. In his speech the Minister said: The cost of the provisions in the Bill is minimal in the context of overall social welfare spending. It is likely to rise to £1 million over the next five years. Total spending on social welfare support to widows, widowers, lone parents and deserted wives at present is in the order of £630 million a year. The additional cost, therefore, will have no appreciable impact on the public finances. I question this figure of £1 million and ask the Minister to have another look at it. The precise cost is important. We have raised questions as to the circumstances in which the children's allowance will be paid to the spouse. The Minister should address this issue. We have also raised the question of the availability of counselling services and which need to be addressed also. Clearly what is needed is to provide support structures. This Bill is one element of a larger debate and I speak as someone who supports the thrust of what the Minister is doing. My party has always recognised the need to provide support structures. I am proud to look at the history of my party, which provided this support structure through the social welfare code. 1188 The Minister for Social Welfare in many ways sounds as if he is still a backbencher and is scathing in his comments on Fianna Fáil's genuine criticisms. He seems to be hurt by references to the famous 2.5 per cent increase in social [1188] welfare payments. This will mean an increase of £1.50 weekly for old age pensioners, approximately 20p a day. It is legitimate that the main Opposition party should remind the Minister again and again of this derisory increase. If we cannot care for that sector in our society, it is a poor reflection on the Government, in particular a Government that claims to represent the disadvantaged. I have outlined the Fianna Fáil position on divorce. I am anxious that we introduce the right legislation in preparation for the divorce referendum. The Judicial Separation and Family Law Reform Act is in place and it is our duty to ensure that we introduce a caring Bill. We have legitimate questions on the detail of the Bill and I ask the Minister to address them. I am anxious that the position of children will be catered for. The argument has been made that the floodgates will open if divorce is introduced but nobody is forced to get divorced. The argument that children will suffer from divorce is not valid. Children suffer from marital breakdown and I speak from my experience as a teacher. We as politicians have to live in the real world and deal with this very sensitive issue. I know that each and every one of us through our contact with the public is conscious that this is a real issue. I suggest that if we put all the legislation in place — and obviously this Bill is a central part of that — we will get a caring response from the public. I believe the people will allow for the introduction of divorce in particular circumstances and my party's position is quite clear on that. We must provide support structures, face up to our responsibilities and allow for divorce in particular circumstances. We are asking the Minister to spell out precisely the costings and what exactly the Government has in mind in regard to the question of property, the position of children and all other aspects of this debate. 1189 I pay tribute to the Minister for Equality and Law Reform, Deputy [1189] Taylor, who in a methodical and quiet way has dealt with this issue. He has not looked for headlines but sought consensus. It is admirable that he has acted in this way. Notice taken that 20 Members were not present; House counted and 20 Members being present, Mr. T. Kitt Mr. T. Kitt Mr. T. Kitt: I thank the Minister for Social Welfare for coming into the House because we thought he might not be interested in hearing our comments. I called a quorum because it is important that Deputies give their attention to the debate on this legislation. Fianna Fáil's position on divorce is clear. We are concerned about family structures and hope the Minister will deal with the position of women in the home. It is a pity the Minister has not taken the opportunity to widen this Bill and I hope he will come back to this issue. The Fianna Fáil Party supports the broad thrust of this Bill and I welcome its introduction by the Minister at this time. Mr. Flanagan Mr. Flanagan Mr. Flanagan: I agree with the speakers opposite that this is important social legislation. Nobody would say otherwise. It is a vital part of the jigsaw we must put in place before holding the referendum when we will ask the people later this year if they wish to remove the constitutional ban on divorce. Much has been said about the mistakes of 1986, the absence of information and the unaddressed problems. I do not wish to deal with that now because everything in that regard has been said by Deputy Bell and others. 1190 It is of great importance to underline the need to provide information. We cannot overestimate the need for parliamentarians and the relevant State and Government agencies to ensure that proper and adequate information is available to the people between now and the holding of the referendum. It is a huge task and I hope the Minister for [1190] Equality and Law Reform does not underestimate it. Recent surveys have shown that the people know little of the legislative improvements in the area of family law that have been made since 1986; and the legislation piloted through this House has not been read to any great extent by the citizenry. It is vitally important to institute a proper and adequate process of information. I am particularly pleased the Minister for Equality and Law Reform, Deputy Mervyn Taylor, has embarked on a countrywide programme of seminars. Just yesterday we heard reports from the first of these seminars which was held in Ennis, County Clare. Further seminars are planned for other regional centres and I hope these seminars will continue to take place throughout the summer so that people in every county will have an opportunity to have their many queries dealt with by a panel of experts. I accept the Government will do everything in its power to ensure that if we have divorce legislation next year there will be no loss, financial or otherwise, for the parties involved. However, we must be realistic and acknowledge that there will be loss, trauma and suffering by virtue of the change in the marital status. Women, children and, in some cases, men will suffer, but it will not be possible for us as legislators to eradicate that suffering. Our job is to minimise the suffering. It is our duty to ensure that women will not suffer needlessly and that the position of children and women will be of prime importance in passing legislation. This Bill relates directly to the position of women who may be in some way involved in marriage breakdown and subsequent divorce. 1191 There is a number of questions on the legislation that I would like the Minister to address now or on Committee Stage. The first relates to an anomaly in our social welfare code which has pertained for quite some time and which is not justifiable. When is a divorced person not a divorced person? There are numerous [1191] women in my constituency whose husbands have disappeared to England or some other foreign jurisdiction and who have served divorce papers on their spouses in this country. If such a spouse takes no action because she does not wish to accede to the divorce or engage in the divorce proceedings, a divorce is granted to the husband. If the husband, having been granted his divorce, remarries in England and, some years later, dies, under Irish law his first wife will not be regarded as a widow for pension purposes. I hope this issue will be addressed under this or other legislation as it places an extraordinary burden on women, many of whom are elderly. A woman may have a photograph of a headstone in a graveyard in Newcastle-on-Tyne on which is inscribed the fact that her lawful husband died some years ago, but the Department of Social Welfare does not regard such persons as widows for pension purposes. Debate adjourned. Dáil Éireann 454 Social Welfare (No. 2) Bill, 1995: Second Stage. General Debate 19950615 | ||||||||||||||||||||||