The Gazette 1979

GAZETTE

JULY-AUGUST

1979

Motion for Debate: That Civil

Divorce should be available in

Ireland

(

Text of a paper read by Professor Mary McAleese at the Society's Annual Conference in Galway,

3/6 May, 1979

Any apologist for Civil Divorce in the Republic of

Ireland immediately finds himself or herself stuck in the

middle of a huge obstacle course littered with in-

surmountable myths and intractable misconceptions. For

while the rest of our European colleagues busy them-

selves developing sophisticated divorce systems designed

to regulate at least some of the problems caused by dys-

functional marriages, we in the Republic have yet to

divest ourselves of the deep-rooted belief that far from

being a logical and desirable answer to a social problem,

divorce is in itself a social evil.

In common with the rest of the Western world we hold

the belief that society's best interests are served by the

creation and maintenance of stable family units, set in the

context of monogamous and lifelong marriage; hence our

law perceives marriage as the voluntary union of one man

and one woman for life, to the exclusion of all others.

However while our neighbours make concessions to the

inevitability that the ideal will not always be possible, we

steadfastly adhere to the Golden Dream of lifelong

conjugal bliss, ignoring the casualties of the married state

and making no substantial contribution towards the

alleviation of the misery of those who find it less than

harmonious.

Divorce and marriage breakdown

De Valera's naive but invincible belief that the remedy

of divorce was worse than the problem of unhappy

marriages finds expression in Article 41 of the

Constitution where immediately after pledging itself to

guard the institution of marriage, the State places a total

prohibition on the enactment of divorce legalisation. No

real evidence was offered then, nor has it appeared since

which substantiates the claim that divorce legislation

threatens the stability of marriage by diluting the

seriousness with which partners view the sanctity of their

mutual vows and commitments. Yet it is an argument

trotted out with monotonous regularity and unswaying

conviction by opponents of divorce. The dangerous

simplicity of the argument could perhaps have been for-

given in De Valera talking in 1937 when all he had to

operate on was a conglomeration of hunches and

educated guesses, but in 1979 with the benefit of probing

and comprehensive academic research which discounts

divorce legislation as a significant factor in marriage

breakdown, it is unforgiveable to continue to assert it as if

it were still an incontrovertible fact.

Let us look at some of the real facts. Even in a

jurisdiction so idealogically committed to the ideal of

lifelong marriage that it forbids divorce, marriages do

breakdown. It is hardly an exaggeration to say that in the

past decade Family Law in the Republic of Ireland has

undergone something of a minor revolution. In that time

legislative provision has been made to pay an allowance

to deserted wives, spouses can be forced to provide

proper maintenance for their families, a deserted spouse

has his or her right to remain in the matrimonial home

protected, and a battered wife or the less likely

phenomenon, the battered husband; can obtain a court

order prohibiting the offending spouse from entering or

residing in the 'victim's' home. In each of these instances

we see an increasing involvement of the State in 'casualty

marriages', the intervention being designed to provide a

limited form of redress and support. None of these pieces

of legislation created deserted wives or deserting

husbands or caused husband-battering wives or wife-

battering husbands — none of them created the

phenomenon they were designed to help — rather each

was a response to an extant need. In other words the

deserted wife, the battered wife, the spouse threatened

with eviction from the matrimonial home, these people

and their dilemmas all existed before there was legislation

to regulate their problems. And the story is true when we

come to divorce legislation. No matter how many times

we repeat the assertion that divorce wrecks homes or

damages lives we cannot make it valid or true. In the

words of Rheinstein in his treatise on American divorce:

"The breakdown of marriage is an event in the realm of

fact which is different from and regularly precedes that

event in the realm of law which is called divorce and

which does no more than ascertain the fact that a

marriage has broken down and restores freedom to the

parties."

Influence of social change on divorce

Perhaps a critical look at the experience of our neigh-

bours in England will clarify the point finally. Between

1901 and 1905 the annual average of divorce decrees

made absolute was 546; in 1976 the figure was a startling

125,910. Admittedly there had been significant changes

in divorce legislation in the interim, for whereas at the turn

of the century, adultery was the sole ground for divorce,

by 1976 it was the much wider notion of irretreivable

breakdown which concerned the courts. But it would be

facile to suggest that the liberalisation of the law was

itself the causal factor or even a significant causal factor

in marriage breakdown, for those same years there were

two major world wars and profound social changes which

affected and continue to affect the entire fabric of our

society. To ignore the significance of these changes on the

institution of marriage is to ignore the very heart and core

of why marriage appears to be less stable than before.

If we look at the pattern of divorce petitions in England

during that seventy year period some interesting

observations emerge which stress and underline the

importance and impact of social factors on marriage

breakdown. In both 1937 and 1969 the existing divorce

law was liberalised. As soon as the new law became

operative the number of petitions soared dramatically but

within a couple of years had dropped equally drama-