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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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