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GAZETTE

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E

PT

EMBER1982

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BOOK REVIEWS

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The Case for Divorce in the Republic

of Ireland

By William Duncan. Irish Council of Civil Liberties 1982.

107pp. IR£2.40.

In view of the importance of the topic, we present

contrasting reviews by Brendan Fitzgerald and Paul A.

O'Connor.

This book is a revised edition of a report

commissioned by the Irish Council of Civil Liberties

on "The case for Divorce in the Republic of Ireland".

The author is Mr. William Duncan of Trinity

College Dublin Law School. The first edition was in

1979. The revised edition contains a postscript giving

developments in the debate on the political side and

gives further up-dated statistics and results of

Opinion Polls as well as an enlargement of some of

the arguments and replies to objections made.

It is not a legal text. It is rather a sociological study

high-lighting a good deal of marriage problem areas

in Ireland and dissatisfaction with the legal remedies

in so far as they apply to "an increasing minority of

cases" to use Mr. Duncan's phrase.

The Report's stated objective is very briefly

described in the blurb on the back of the cover viz.

"The object of this study is to present in detail the

arguments for the introduction of divorce into the

Irish Republic, and to reply to those who fear that

divorce would have a damaging effect on the stability

of family life." A longer resumé is given in the

Introduction.

The Report is clearly intended as an instrument of

persuasion in the campaign to provide for divorce in

Ireland. Mr. Duncan acknowledges that there is no

specific right to divorce nor is it a human right but

claims it is a civil right.

The Report contains seven short chapters (with

notes, sources and references) ranging from the scale

and causes of marital breakdown in Ireland in the

first chapter to the summary and conclusions in the

seventh. There are two appendices and the

"Postscript Two Years On". Incidentally the

Postscript is not referred to in the contents.

It is only possible within the confines of this short

review to put before readers a few of the most

pertinent arguments made for the case and to

comment on them.

In Chapter 1 Mr. Duncan illustrates marriage

breakdown in Ireland from various statistics and

ends the chapter suddenly by asking the reader to

accept that divorce has in fact no effect on marriage

breakdown. This is said would be proved later in

Chapter 5. Even at the end of the Report he makes the

inconclusive statement that divorce could be the

cause — or just a symptom of breakdown of marriage.

He is really "begging the question". The inclusion of

the number of applications to Regional Marriage

Tribunals is not relevant as evidence of breakdown of

marriage. He comments however that these figures

"provide an indication only of the minimum extent of

marital breakdown among Roman Catholic couples."

(p. 13).

222

Chapter 2. "The problem defined. What's so

different about divorce?" is really a misnomer

because here he tries to persuade the reader that a

divorce decree is the same as a nullity decree. He very

properly distinguishes the terms, legal separation,

decrees of nullity and divorce. A nullity decree in

effect says there was no valid marriage. It is not a

question of a right to re-marry as Mr.Duncan insists.

He says if the result of both decrees of nullity and

divorce are the same on social grounds why deny a

right to remarry after a divorce decree? He seems to

say that there is no legal basis for a nullity decree.

Surely there must be provision for nullity, in any

legal system that deals with marriage? Mr. Duncan

continues however through the Report in the vein of

dismissing the important place of a nullity decree in

marriage laws e.g. at page 41 and Chapter 4 under

heading "The future without divorce — Living with

annulment" pages 44 et seq. The argument must

assume that the annulment of marriage is not based

on any consideration of marital breakdown.

Readers could not but agree with the statement at

page 33. "It should be remembered that family law

represents only one element of state policy in relation

to marriage and the family. In the long term it seems

likely that social and economic policies, particularly

in relation to housing and family income, will

exercise a far greater influence on the future stability

of Irish family life than changes in matrimonial

laws." Recent legislation e.g. the Succession Act,

1965, the Family Home Protection Act 1976 etc. have

been positive and supportive of marriage and the

family but the case for divorce advocates the ultimate

radical and destructive force of dissolution to deal

with problems in marriage.

It is good however to see reference in the Notes to

the NESC Report No. 47 "Alernative Strategies for

Family Income Support" in the Report. It is most

relevant.

At page 43 it is argued that while marriage is a

voluntary free act of the parties the absence of divorce

facility brings compulsion into marriage and Mr.

Duncan continues "put more crudely, marriage

without divorce is a trap from which each spouse

knows that the other cannot escape." Readers will no

doubt regard this argument under the heading "the

absence of divorce being damaging to marriage and

family life," which some horror and amazement.

The equality (or rather inequality) argument at

page 41 has two parts, one, that nullity allows re-

marriage where it is possible to find defects in a

marriage whereas prohibiting divorce is a form of

discrimination. In fact this is not so, since in a nullity

decree it must be conceded that there was legally no

first marriage therefore it is

not

a question of re-

marriage.

The second, part, that the rich can get foreign

decrees while the poor cannot, is far-fetched and it is

not true, as practitioners will verify. It is further

stated that there is collusion by practitioners. Foreign

decrees create their own difficulties on domicile. The

comparative systems of divorce law at chapter 6 can

hardly be considered a basis for "a good divorce law"