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GAZETTE
DECEMBER1980
whilst recognising that the family based on marriage is of
prime importance to society, any such, policy must also
take into account the limitations of the law and the social
realities of Irish family life. Marriage is a personal
relationship between two people subject to all the stresses
and strains that fluctuations of physical and mental health
as well as social pressures bring to it. Programmes should
be created to reflect the value of marriage in practical
terms. Those entering marriage, should, through
education, be fully prepared for the relationship into
which they are entering. Family counsellors should be
available to assist spouses overcome marital difficulties.
"It must also be recognised that irrespective of the state
of the law or the conditions prevalent in society marriages
will always break down. When that breakdown is
irretrievable the object of the law should be to mitigate the
harmful consequences and to assist the parties to re-
organise their lives with the minimum of distress,
bitterness and recrimination".
Supports for marriage
To date, the State has failed to provide the required
type of supports for marriage. There are no State-
sponsored family counselling services that are solely
concerned with marriage and education for marriage.
Nearly all of the work in this area has been left to
voluntary agencies who receive little, if any, State
support. The Court system itself is designed in a way to
exacerbate rather than alleviate family conflict, and
recently-proposed legislation seeks to further perpetuate
this situation.
"The States policy of 'support', for marriage is a
negative one. It is summed up in one sentence: the
prohibitior on divorce contained in the Constitution. It is
time that legislators stopped sheltering behind this Article
in the Constitution and using it prove that in Ireland we
protect and support the family based on marriage. The
reality is that many thousands of marriages are breaking
down, and the State's approach is to stand back and do
nothing".
"The State's failure to recognise the reality of broken
marriages is creating a further social problem of major
dimensions. There are many couples residing in this
country who have re-married after obtaining a Church
decree of annullment or a foreign decree of divorce not
recognised by Irish law. These second marriages are not
only invalid but also criminally bigamous, but a blind eye
is turned by the State. We thus have the spectacle of a
country which professes interest in protecting marriage
and safeguarding marriage as an institution, encouraging
members of its populace to enter into bigamous unions".
Commenting on the Government's proposals for
reforming family law, Mr. Shatter saicf that the first
proposal is to abolish the High Courts jurisdiction in
custody cases and to transfer it to the District Court, and
Circuit Court, and also to abolish th£ High Court's
jurisdiction to hear proceedings for judicial separation
and to transfer it to the Circuit Court. This will not result
in any substantial change in the law or in any way
improve the remedies available to spouses upon a
marriage breaking down. A matter of particular concern
is that the High Court has had in recent years
considerable experience in dealing with custody cases arid
a comprehensive case law has been built up. The District
Court and Circuit Court have had no such experience and
difficulties will be encountered in practice if the High
Court jurisdiction is abolished. If family cases are still to
be dealt with within the existing Court structure the
urgent need is to provide qualified and specialist social
workers and psychiatric personnel to assist Courts dealing
with marital and custody cases. Ultimately what is
required is a unified system of family Courts throughout
the country.
Criminal Conversation
The second proposal for law reform made by the
Government
relates
to
"criminal
conversation,
enticement, and harbouring". The Commission has
recommended that these actions be replaced by what it
refers to as "an action for damages for adultery". Under
the Commission's recommendation if a spouse commits
adultery the person with whom the adultery was
committed could be sued for damages by the other
spouse. The Law Reform Commission in arguing in
favour of such an action suggest that it would "provide a
buttress for stable marital relationships" and that it would
deter persons
from intruding into other peoples
marriages.
"The arguments against the action proposed by the
Commission are, I believe, overwhelming. The
Commission fails to take into account the fact that the
State cannot by legislation compel spouses to be
compatible and make marriages viable. Marriage is a
relationship that can only function properly with the co-
operation of both parties. When that co-operation breaks
down, that relationship cannot be helped, but can only be
demeaned by such proceedings.
Such actions are not appropriate as they are only
concerned with the symptoms and not the causes of
marital breakdown. Upon a marriage running into
difficulties the issuing of proceedings for adultery could
militate against a reconciliation between spouses, and in
fact drive a further wedge between them.
"It is difficult to understand the Commissions
reasoning. Why, for example, should the action for
damages be confined to adultery? In order to establish
adultery in law a Plaintiff must prove that his or her
spouse has engaged in voluntary sexual intercourse with a
third party. Sexual intimacy falling short of adultery
between a spouse and a third person can provide just as
great a "threat" within the Commissions reasoning to a
marriage, as can other extra marital sexual relationships,
for example, a homosexual or a lesbian relationship".
"Rather than providing a means to assist spouses come
to terms with their marital difficulties^ the proposed action
would provide a means whereby one spouse could black-
mail the other into returning to the family home without
the parties first resolving their marital problems. This
could place in jeopardy the welfare of children living with
parents who are continuously at war with each other".
No "realistic recommendations"
In his summiljg-up Mr. Shatter said that "the establish-
ment of the Law Reform Commission in 1976 was hailed
as an event thtu would be of considerable benefit to the
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