GAZETTE
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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"