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GAZETTE
JULY-AUGUST 1979
Motion for Debate: That
Divorce should be available in
Ireland
Response read by Sean P. Bedford, K.S.G., at the Society's Annual Conference in Galway, 3-6
May 19 79, to the paper of the proposer of the motion, Professor Mary McAleese, the text of which
was published in the June issue
o / The Gazette.
Introduction
This issue is about marriage and society. It is about the
desirability of, or the necessity for, changing and existing
law relating to marriage in order to overcome the
hardships arising from what are broadly termed
irretrievably broken marriages. It is essential, therefore, to
put it in its proper perspective.
The institution of marriage is so fundamental to our
society that any serious debate on proposed changes to
the law must embrace the very broad context of marriage
and society, and the inter-reaction of the one on the other.
The debate must include consideration of the moral,
historical, legal and social aspects of marriage. The legal
aspect will be of particular interest to you, of course. I do
not have to remind you of the necessity for stability in an
effective legal system, and I accept that, at the same time,
change is inevitable if progress is to be made. However,
we are not dealing here with the administration and
interpretation of existing law. This can safely be left to the
judiciary who invariably carry out these responsibilities
with deep understanding and sympathy especially in the
field of family law. We are considering a proposal for a
very drastic change, an abrupt break in continuity with
the past, in existing matrimonial law. There is,
accordingly, a very heavy responsibility, especially on the
legal profession, to ensure that a very objective and
reasoned judgment is made on the issue.
Marriage & Society
If we are to discuss marriage and society there has to
he a starting point. There has to be some principles and
we must define what we mean by marriage and society,
and what we understand to be the inter-reaction of the one
on the other.
Throughout history marriage has been one of the vital
areas of human life which society has felt the necessity to
control by law, and for the most part for reasons which
have not primarily been religious ones. The relevant law,
too, has always reflected fairly accurately the concept of
Carriage accepted by the society in which that law
applied. Unlike, for instance, Great Britain, there has been
in this country an unbroken stream of legal thought and
expression in this regard. The law here has never seen
marriage as other than the voluntary union for life of one
man and one woman to the exclusion of all others, as
understood in Christian countries. Article 41(2) and (3) of
the 1937 Constitution is, in legal terms, simply a
continuation of this age-old tradition. Incidentally, the
suggestion by some parties that this Constitutional
provision is no more than a reflection of the Catholic
ethos cannot be sustained by anyone who takes the
trouble to study our legal history in this matter. In this
connection, it is worth quoting the words of Lord Devlin
in a lecture on 'Morals and the Law of Marriage'
published some years ago by the Oxford University
Press:—
Society has a right to define the status of marriage
in accordance with the ideas of the majority and to
refuse to confer it upon those who do not conform.
A society which permits no divorce at all may still
properly regard itself as a free society. If the general
feeling in that society, whether it springs from a
religious source or from any other, is that marriage
ought to be dissolved only by death, then that is the
sort of marriage that society is entitled to have.
Indissolubility of marriage is firmly enshrined in our
existing legislation. It has taken root in our society and
irrespective of religious tenets it is a fundamental social
fact. There is no deprivation of either religious or political
liberty in the constitutional provisions which make
marriage indissoluble. In any society, everyone must
agree to social norms, and, as regards marriage, must
accept it as it is understood and operated by law in that
society. For example, public policy in Britain demands
marriage should be dissoluble; public opinion in this State
demands indissolubility. If we are to contemplate a
change in this fundamental issue, all of us must be fully
aware of what is involved and the consequences likely to
stem from a change. Certainly it reinforces the necessity
to ensure stability and continuity in the law and to avoid
the dangers inherent in any abrupt break in continuity
with the past.
We cannot, in Contemplating the proposed change in
matrimonial law, adopt the extreme positivist theory that
one treat law and morality as two separate concerns. One
just cannot separate law from moral values. It is not
realistic. They both deal with the practice of human living
and with the quality of human life, and they must support
each other. Law must keep close to the moral sense of the
community and the moral sense of the community must
inspire law. This is not repressive of minority opinion
because in a civilised and Christian community toleration
of differing moral viewpoints and practices will be part of
that general moral sense. We are speaking, therefore, of
the interdependence of law and morality.
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