The Gazette 1981

GAZETTE

APRIL 1981

Solicitors' Apprentices Debating Society of Ireland

Inaugural Meeting — Family Law

The Inaugural Meeting of the Solicitors Apprentices Debating Society of Ireland took place at Blackhall Place on Friday, 13th February, 1981. The Auditor, Richard Grogan, delivered his inaugural address on "Marriage in Ireland." Speakers to the auditor's paper were Inge Clissman, B.L., James O'Reilly, B.L. and Rev. Fr. Liam Ryan, Doctor of Sociology, St. Patrick's College, Maynooth. In his paper the auditor, Mr. Grogan, gave a synopsis of the present Law in Ireland relating to what constitutes a valid marriage, the constitutional prohibition on divorce and the present distinction between the Civil Law and the Canon Law on Nullity. The Auditor then continued:— "While nullity and church annullments may seem similar they are distinct in many ways, firstly by a decree of nullity in the Courts the marriage is taken as having never been in existence and all acts done during that time when the parties were living together are taken as having occurred outside of marriage. One striking result of this is that any children that are bom are automatically bastar- dised, something which the Church does not agree with, whereas with a Church annullment the decree is not back- dated to the date of the marriage but only to the date of the decree. The Attorney-General's paper on nullity in 1976 proposed a total re-appraisal of the law of nullity by extending the grounds for such a decree. However, the paper envisages introducing elements which arise after the solemnisation of the marriage while the historical perspective is that the grounds on which a decree of nullity is granted should exist at the time of the marriage. "With a divorce jurisdiction a child of the marriage would remain legitimate and a spouse would be entitled to maintenance and the children to their succession rights. Such rights and privileges automatically cease with a decree of nullity. To extend dramatically the law of nullity is to allow divorce by the back door. As a nation we must now decide if we want divorce or not. To introduce it by a back door method will neither be effective nor will it be honest for it will merely be divorce under a different name. Such an approach would not be in keeping with the Constitution nor with our Christian beliefs of honesty and sincerity. It is obvious that the present is a time of excep- tional activity in family law reform. There have, of course, been similar upsurges in the past. These have been associated with the transition from ecclesiastical to secular administration of family law and the reduction of the husband's legal dominion over his wife. The present activity centres around the question of divorce. This movement has gained momentum particularly as the purpose for legal marriage has changed. Marriage has served human society well. On one hand it has institutionalised the care and protection a mother needs during child bearing and maternal care. On the other

hand it has provided a method of creating alliances by which human groups have been reconciled, united and expanded. But, in Western society marriage no longer carries these implications. Political allegiances and economic wealth are differently allocated. Even the maternal function is diminished because the proportion of a woman's married life spent in maternal care has been dramatically reduced. The result is that, for the larger part of their existence, the only social purpose for maintaining marital relationships lies in the value they have for the parties themselves. The 1937 Constitution in Article 43 introduced the ban on divorces. No such ban was incorporated in the 1922 constitution. The Irish Free State Parliament took over the jurisdiction of the British Parliament in that a petitioner could obtain a divorce a vinculo matrimonii by having a Bill of Divorce passed. By 1925 three bills for divorce had been lodged and in February of that year the Irish Free State Parliament introduced additional standing orders to prevent the intor- duction of Bills of Divorce. Mr. W. T. Cosgrove said "I have no doubt that I am right in saying the majority of people in this country regard the bond of marriage as a sacramental bond which is incapable of being dissolved." During the debate on the draft constitution Mr. de Valera said "with regard to the question of divorce in general there is no doubt that sometimes there are unhappy marriages, but from the social point of view, without considering any other point of view, the obvious evil would be so great, and it has been proved to be so great in other countries that I do not think any person would have any difficulties — at least I would not — in making a choice on this matter." His choice was to ban divorce. However, I would argue that the State's overriding goal is not to preserve 'marriages' which are marriages in name only but rather to foster viable family relationships and in the event of divorce to minimise damage to residual and re-organised family relationships. "Mr. de Valera felt that divorce facilities would be detrimental to the stability of marriages and cause marital breakdown. However, it is the factual breakdown of a marriage and not the availability of divorce which con- stitutes a social evil. The role played by divorce proceedings are not very different than that played by separation proceedings. They are merely alternative ways of dealing with marital breakdown when it occurs. The only difference is that the former permits the parties to re- marry while the latter does not. We, as a society, must now decide whether we want or need a divorce jurisdiction. However, I think we would all accept that any divorce statute must leave the decision to divorce or remain married to the adults involved. A divorce pro- cedure must acknowledge the inability of the law to order highly personal human relationships and to recognise as

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