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where only grounds of divorce are set out. The reader
may rightly ask "what's beyond the 'good divorce
law' for wives and the children?" At page 69 Mr.
Duncan agrees with the Canadian Commission as
being against the administrative process, whereas in
Note No. 16 at page 71 he argues for conciliatory
procedures rather than investigation as to whether
grounds for divorce have been established. There is
some contradiction here.
The last sentence of the Report at page 102
concludes — "The case is based rather on the view
that the social consequences of its denial are far more
undesirable than the risks attached to its
introduction." The "social consequnces" and risks of
divorce are not revealed by Mr. Duncan. He says we
must try to predict. The statistics available of divorce
and multiple divorce through several generations
must be sufficient to predict at this stage. They just
scream out as evidence that divorce is destructive of
the true objective common good of Society. There is
deprivation of property rights and enormous
financial consequences for wives and children (as
well as the State) from divorce. This is where the
humanitarian argument wears very thin indeed.
I think Mr. Duncan has not really shown the cold
facts of divorce. He has underplayed these hardships
even in his further replies to objections in the
Postscript. The words of Montesquieu seem so apt:
"Such is the effect of bad laws that even worse are
needed to check the evils of the first."
The argument for the case for divorce under the
heading "the Individual's right to control his or her
own destiny" p. 36 is a narrow and individualistic
one. Considering that the sciences of politics,
sociology and economics deal with individual and
collective human welfare, the case for divorce ignores
the philosophical and religious implications of man's
origin, nature and destiny in relation to marriage.
("Man" of course embraces "woman"). Nowhere
does the Report treat of marriage as a natural
institution which is in the realm ofthe sacred. If one
regards marriage as based on mere contractual rights
the arguments for the case for divorce may seem
persuasive to that degree only.
The chapter on the different roles of Church and
State could be found somewhat exasperating to many
readers in Ireland. Here Mr. Duncan purports to
attach blame and create confusion about a clear and
legitimate jurisdiction of the Catholic Church in
relation to the validity of the marriages of its
members. It is difficult to see how its nullity
jurisdiction could be regarded as a challenge to the
civil law as stated on page 29. It may be agreed,
however, there are some problems in which the civil
law could help in relation to the consequences of
nullity decrees. The phrase "current social teaching
of the predominant Church" p. 39 is a vague and
strange one. If it refers to indissolubility of marriage
Catholics would not accept this as just current or
social but as perennial teaching.
I found the Report stimulating and provocative too
particularly where some of the arguments at times
became over-laid, over-persuasive. An over-eager
salesman can prove to be off-putting, and one begins
to ask "where are the snags?"
His painstaking research into all the varied facets
of this very live and difficult issue is truly extensive.
Some small criticisms of the text would be a
frequent reference to a later chapter at a critical stage
of an argument or vice versa a reference back to an
earlier chapter. Also here and there an agrument is
continued in the notes at end of chapters.
The binding in this edition is unfortunately bad.
Pages come loose very easily.
The Report is worth reading. It impels one to
deeper consideration and study of the reality of true
marriage. It is so easy to get bogged down completely
in the problematic aspects. This does not exclude
concern to find ways and means to solve family
problems.
The "Case for Divorce" presents two positions. It
attempts to persuade all citizens (1) to introduce
divorce into the laws of the State on the general
arguments made, or (2) to allow it as an "extra
option" for some few people who want it. It aims at
objective No. (1) but will settle for objective No. 2 if
No. 1 fails. If objective No. 1 wins acceptance the
success of objective No. 2 is assured.
If the "extra option" argument were accepted it
would be the thin edge of the wedge.
It would be good to see the I.C.C.L. commission a
complementary Report on the defence of marriage
also.
Brendan Fitzgerald
This is a revised edition, with a postscript added, of
the work first published in October 1979. Mr.
Duncan's,
The Case for Divorce in the Irish Republic
has, in the intervening years, attracted a good deal of
attention. The work has in the main been well
received and, in this reviewer's opinion, deservedly
so. The case for divorce is clearly presented by the
author and cogently argued. A commendable feature
of the work is the sensitivity which is displayed
towards the competing view that the introduction of
divorce in this jurisdiction would be socially
undesirable. In short, the author is in no way
dismissive of the traditional understanding of the
institution of marriage in this country.
The author states in his introduction that "the case
for divorce is basically a humanitarian one".
Specifically, it is the unhappiness which results from
broken marriages which constitutes the primary
justification for divorce. In such situations the author
suggests that divorce should be made available to
those who wish to dissolve the legal ties of marriage.
He makes it clear as to what he means by an unhappy
marriage: it is one which has irretrievably broken
down. The system of divorce which is favoured by
the author is therefore based on 'irretrievable
breakdown'. There are other systems of divorce such
as divorce by repudiation, divorce by consent, and
diyorce based on marital fault but the author decided
that a detailed discussion on the kind of divorce
system which might be introduced into this juris-
diction did not fall within the ambit of his study.
One can, perhaps, agree that acceptance of divorce
in principle, and the particular kind of divorce law
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