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GAZETTE
JULY-AUGUST 1979
that, even with the best preparation, the experience itself
of marriage will turn up problems and difficulties which, if
they are not to lead to a breakdown, demand early and
expert remedial action. Here is the importance of
marriage counselling. This work so far has been initiated
principally by the Churches, and society cannot remain
indifferent to it. The State itself should see in it the
fulfilment of a vital social need which demands effective
support.
I would like to emphasise the potential of modernising
the civil law of nullity for achieving substantial relief for
broken marriages. At the outset, let me refer to the clear
distinction between divorce and nullity, a distinction
which, to judge from some of the comments made, is not
widely appreciated. A divorce is a decision by a judge to
dissolve a marriage which up to that point is
acknowledged to have been a true and valid marriage. A
decree of nullity, on the other hand, is a decision by a
judge that something which at the outset had all the
outward appearances of a true and valid marriage was
not in fact a marriage at all for well defined reasons. It is a
declaration that a marriage never existed because of some
substantial defect in the law. It is evident from the history
of marriage law that this is neither a new distinction nor
one which has been easily confounded. The annulment
doctrine has inherent consistency as well as an age old
respectable tradition. It is the corollary of the basic
definition of the nature of the marriage institution, of the
freedom and capacity of the partners to contract and live
marriage, of an established form of marriage ceremony. It
declares that a substantiaj defect in any identified in the
law. It is evident from the history of marriage law that
this is neither a new distinction nor one which has been
easily confounded. The annulment doctrine has inherent
consistency as well as an age old respectable tradition. It
is the corollary of the basic definition of the nature of the
marriage institution, of the freedom and capacity of the
partners to contract and live marriage, of an established
form of marriage ceremony. It declares that a substantial
defect in any of these areas renders marriage null and
void ab initio.
There is an urgent need to update and consolidate our
marriage laws. The need is obvious when, for example,
one tries to find one's way through the labyrinth of legal
prescriptions which comprise the formalities for a valid
marriage ceremony in our civil law. The modernisalion of
our civil law of nullity could provide a remedy for many
difficult family situations. The Nullity Bill proposed in
• 976 by the then Attorney-General, Mr. Declan Costello,
was an honest and responsible endeavour to come to
terms with aspects of the social problem of marital
breakdown. Its intention was clearly to preserve Irish
family and social life from the evils which tyDically attend
straightforward divorce legislation. The desirability of
some such legislation is now even more pressing, and this
is where we should be directing our attention rather than
to divorce. Whatever the limitations of an annulment
system, they are socially preferable to the consequences
of dovorec which are so destructive of fundamental family
values. A new law of nullity would have the added merit
that it would be an evolutionary step, rather than an
abrupt break, in our matrimonial laws. In a matter of
such fundamental importance to society, what lawyer
would lightly set aside the principle of the indissolubility
marriage, which is an obvious and an integral part of
our legal heritage for something to which it has always
been diametrically opposed?
Code of Family Law
Divorce is not the answer to our problems in the
matrimonial field. It is a social evil, a social evil of such
grave consequences that no relief of a relatively few
genuine hard cases could compensate for it. Furthermore,
there are alternatives in keeping with out traditions which
could provide positive reliefs to marriage problems and
which could and should be pursued. I would ask you to
reject decisively this proposal to introduce dovirce into
our country.
Having said this, I do not think that we should adopt a
passive or negative attitude. It is the responsibility of us
all, including the legal profession, to take positive steps to
expand and develop our matrimonial laws in order to
alleviate the many hardships and injustices relating to
family life in our present society. The question of
irretrievably broken marriages is but one of many
problems. If we do not take the initative to deal with these
in a truly Christian fashion, we could at some future date
be pressurised into adopting some expedient which would
undermine family structures which many other traditions
envy.
The whole institution is so fundamental to our society
that it is essential to approach desirable and necessary
changes in our matrimonial laws in a comprehensive
fashion and not on a fragmented basis arising from
ephemeral pressures. We require the compilation of a
Code of Family Law which would clarify all of the
existing matrimonial legislation and consolidate also for
instance, the law on illegitimacy, guardianship of infants,
adoption, succession, maintenance, nullity, etc. The
question of nullity, as we have seen in the most urgent
issue and action should not be delayed. The need for
expertise and selectivity in administering such a
comprehensive code would suggest Family Courts as the
most appropriate method of administering it.
There is a very important aspect in all of this. The
issues are too important to be left to a bureaucracy or any
Government of the day. If legislation relating to public
morality should continue to reflect the level of public
morality in the society, proposed changes in this
legislation should be initiated, researched and proposed
by a body whose objectivity would be beyond doubt. This
body should be seen to be free of any pressures arising
either from political or religious expediency.
In other words a Commission for the review and
codification of family law should be established, with a
comprehensive membership. It could be headed by an
eminent member of the judiciary with representation on it
from, for example, denominational churches, social
services,
the
legal
and
medical
professions.
Recommendations for evolutionary improvements in our
family laws would be far more likely to prove acceptable
to our society coming from such a body than from any
other source.
(Subheadings
did not form part of the
address).
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