In the Seanad on 5 May 2004, I said, when seconding Senator Mary Henry's motion:

I hope this debate, together with the publication last week of the report of the Law Reform Commission, will spur the Government into action. I seek an indication that it will approach the implementation of the European Convention on Human Rights Act in a proactive way.

I was disappointed that the Government put down an amendment which does not encourage a proactive approach. Senator Henry put down a non-aggressive motion hoping there would not be an amendment. The Government’s amendment states that Seanad Éireann “calls on the relevant members of the Government to keep the law on these matters under review and bring forward legislative proposals on them as appropriate.”

If there is such a thing as putting something on the long finger, this is it. The wording of this amendment could have been more proactive and could have given Senator Henry’s motion some more attention.

I hope the State will not wait to be taken to court before it brings about changes in our legal system. If that was all we did as a result of the European Convention on Human Rights Act, it would be a passive, grudging and unworthy approach. If, as I hope, we approach the Act positively, we will seek to search out those of our laws and procedures that conflict with the convention and put them right before we are compelled to do so. That is the essence of tonight’s debate.

Nowhere is this more necessary than in the field of family law, which has not caught up with either the changes in European practice or the changes that have been happening before our eyes in this society.

The world in general, and Ireland in particular, have changed vastly since the Constitution was first enacted in 1937. In those days it made perfect sense to define the concept of the family as a group based on marriage because at that time that was overwhelmingly the norm. There was practically nothing else. Nowadays, as we all know, that is no longer the case. There are many single-parent families. We have an even larger number of people living together outside the framework of marriage, with or without children. It is vitally important that our law should change in step with these changes in our society.

What is the purpose of family law? It is not to protect or promote the institution of marriage, however much some of us might want to.

Ms O’Rourke:

That is what is in the Constitution.

I know what the Constitution says, but that is not the purpose of the law. The Constitution aims to protect marriage, while the purpose of the law is to cater for the rights, obligations and special needs that arise when people take on the commitment of a long-term relationship.

Every relationship involves giving and taking on the part of both parties. Usually it is love that provides the driving force for this, whether the parties are married or not. As we know, however, love is not enough to make the world go around. When people share their lives, especially when they have children, a cluster of interlocking rights, obligations and special needs arise. It is to provide for these that family law exists. Just as family law is and should be blind to the religion or race of the people involved, it should also be blind to their marital status.

I say that as a fan of marriage. It is important that we continue to recognise the institution of marriage in our Constitution. I would have great difficulty, however, with any intention to ignore the problems that are being created due to the changes in society.

Marriage is a great thing, but I do not see it as a reason for depriving people of rights they should have or releasing them from their obligations. Nor should it be a reason for failing to cater to the special needs that arise by virtue of people’s commitment to their relationships.

Despite what the Primate of All Ireland, Archbishop Brady, said at the weekend, I do not think marriage as an institution is in any great danger from the changes we need to make. We must be careful and take this into account, of course. The vast majority of our population still gets married and will continue to do so, but it is far better that they should do so out of their own free will rather than because they have been bribed with a set of privileges that only married people can access. In business terms, one bribes people to do something or rewards them for doing it. I would much prefer we did not use bribery.

More importantly, our feelings about marriage should not be used as an excuse to deny unmarried people in relationships what should by right be theirs. To discriminate generally against people because they are not married is an insult to the institution of marriage and does nothing to promote it.

In this country we seem to be particularly slow at getting out act together in such matters. Perhaps this is because of our long Catholic tradition or because most of us are still practising Catholics. We have surely learned, albeit slowly and painfully, to move away from the idea that our laws exist as a kind of policing element for any particular religion. Even if the people were 100% Catholic it would still be desirable for our laws to be totally blind as far as religion is concerned.

Some time back I visited an Muslim country and witnessed the attitude of the law there, which discriminated thoroughly against everyone no matter what religion they were. Our Constitution was written in 1937 in a fair and understandable way. We must recognise that there have been changes and examine this issue together. The amendment says we should review the matter, but no action is suggested. It is important in our increasingly diverse and pluralistic society that we are proactive. This is what should concern us as legislators, whose duty it is to serve the people rather than any particular organisation.

I realise, however, that Rome cannot be built in a day, so I support the modest and gradual approach reflected in last week’s report from the Law Reform Commission. Now we need to show that we are willing to bring our laws into line with present-day realities and to take the first steps towards doing that. I commend the motion to the House.