The Gazette 1982

GAZETTE

JULY/AUGUS

T 1982

which might be suitable for this jurisdiction, can be

treated as separate issues. However in a polemical

work of the kind Mr. Duncan has written, the

omission in not dealing with a specific divorce law

which might find a place in the statute books of this

country is unfortunate. Divorce is not an abstract

issue and in this reviewer's limited experience many

people in this country feel confused as to the criteria

which would be employed in any legislative scheme

for divorce based on this notion of irretrievable

breakdown.

Given that the introduction of divorce is expressed

to depend primarily on humanitarian considerations,

there is no need for the author to establish that there

is a high incidence of marriage breakdown. The

relevant consideration is not the size of such a

problem but rather the fact that marriages break

down, and do so, irretrievably.

Before proceeding to a consideration of the

arguments adduced by the author in favour of

divorce some observations ought to be made. Firstly,

Mr. Duncan's attitude towards the family is

fundamentally conservative. He accepts the

constitutionally defined position of the family, as

described in Article 41, as "the natural primary and

fundamental unit group of society", and "the

necessary basis of social order" and as "indispensable

to the welfare of the nation and the State". One might

further add that it is the family which is founded on

the institution of marriage which the State in Article

41 pledges itself to guard with special care and

protect against attack. Thus, to a very large extent,

the author shares the same views of the family and the

institution of marriage as those who oppose the

introduction of divorce. Given that this is the case the

major area of disagreement between Mr. Duncan and

his opponents pertains to the

effect

which divorce

would have on family life. This leads to my second

observation. One cannot prove that the introduction

of divorce in Ireland would not adversely affect the

institution of marriage and the family. In arguing his

case for divorce the author, it is submitted, does not

purport to do this. What the author does purport to

do, and succeeds in doing, is to provide a reasoned

argument in favour of divorce.

One of the principal arguments made by Mr.

Duncan in support of the case for divorce is the

individual's "right" to control his or her own destiny.

This normative proposition is quite capable of being

used to support the adoption of radical divorce

systems in Irish law. However, Mr. Duncan is far

from radical in his approach. Such "right" is clearly

envisaged as a limited one since it is specifically

linked to a divorce system based on irretrievable

breakdown. Under such a system the freedom of

individuals to shape the legal incidents of marriage in

the way they see fit would be quite limited. The view

that one should introduce divorce is grounded by the

author on a political argument which is inspired by

humanitarian considerations.

Mr. Duncan further argues that the absence of

divorce creates inequality between married persons

in similar circumstances. The inequality results, it is

claimed, from the fact that persons whose marriages

are a nullity and those who obtained foreign divorces,

which are recognized in this country, are free to re-

marry but that other persons whose marriages have

irretrievably broken down cannot. It is submitted

that this argument, from the legal point of view, is

open to question. A claim by a citizen that he has not

been accorded equal protection by the State typically

involves inpugning legislation which is alleged to

have impermissibly discriminated between that

individual and another individual similarly situated.

Thus, for example, if divorce were made available in

this country only to those persons who belonged to

religious groups that permitted divorce, there would,

in the legal sense, be discrimination. The situation

which Mr. Duncan refers to does not involve a statute

arbitrarily including or excluding specific classes of

individuals from its provisions. Rather he refers

to three different legal situations: nullity, the

recognition of foreign divorce decrees, and the

absence of divorce

a vinculo.

There is no legal

discrimiantion with respect to how the law in each of

these situations is applied. Logically, each of the

situations is separate from the other; they each

embody a different legal reality. As such, the fact that

it is possible to remarry when what was thought to be

a valid marriage is deemed a nullity, and where a valid

foreign divorce is obtained, is incapable of

supporting the view that this constitutes dis-

crimination, in the accepted legal sense, against

parties to valid marriages which have broken down.

The case for divorce is most persuasive when it is

argued from the point of view of principle. It is not

possible to prove on an empirical basis the desirability

of introducing divorce. This is not to suggest that

empirical studies are irrelevant. Far from it. Mr.

Duncan performs a useful service in drawing the

reader's attention to a number of studies which cast

doubt on the empirically based arguments of those

who suggest that divorce is a source of marital

instability. The point is made repeatedly by the

author that it has not been shown in those countries

that have divorce that divorce is a major determinant

of marital breakdown.

However, there is much that can never be proved

such as whether a liberal divorce system would result

in ill-considered marriages and whether children

would tend to suffer more by being raised by

divorced parents as opposed to remaining with the

parents of a broken marriage.

The revised edition of

The Case for Divorce

bears

ample testimony to the valuable and continuing

contribution being made by Mr. Duncan to the

divorce question in this jurisdiction. He is to be

congratulated for his efforts in this regard.

Paul A. O'Connor

Contract

By Robert Clark. Sweet & Maxwell Ltd., London.

1982. IR£8.32/

This book is one of the first two titles in the

publishers' Irish Legal Texts series. Because of the

abundance of good books on English contract law,

some may have felt that its production was

unnecessary. However, Robert Clark has proved

224