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Presidential Address (27 November 1974)
MEDICO LEGAL SOCIETY
"TILL DEATH US DO PART"
by RAYMOND V. DOWNEY. SOLICITOR
The vale systems which have shaped our lives for
centuries are changing fundamentally. Wherever we
look we find ourselves caught in an upsurge of develop-
ment which bears little relationship to the familiar
ideologies of the recent past. This has been extremely
disturbing because the foundations of our beliefs, secular
and religious, are being questioned radically. We have
come to realise that there is need for change and this
is a painful moment. There are those who are bidding
us to return to the fold and follow obediently the teach-
ing of authority, and there are those who are inviting
us to overthrow
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the shackles of the past and become
free. It is no longer possible to push to one side the
problems around us. There is for example the necessity
to give women the fulness of equality and opportunity
that men have had for thousands of years, which must
include pressing for the innumerable changes in law
to protect womens rights. Her right to reside in the
family home should be beyond argument so that it
cannot be sold against her will and there should be
a power of attachment of a husband's earnings where
Maintenance Orders against him have been made. We
must also consider the newer developments to give the
child increased protection in utero, arising from the
thalidomide tragedy and further protection from cruel
parents which can cause even death as in the Maria
Colwell case in England. In order to understand clearly
the position it is vital to appreciate the change that is
occurring in the nature of marriage. Both secular and
Christian marriage has been based on the idea of a
legal contract in which a man and a women undertake
certain obligations towards each other, from which
flow certain rights and privileges.
What is now advocated is to see marriage primarily
as a personal relationship with social, emotional and
physical integrity in which will be found its viability.
In such a relationship the emphasis is no longer on just
fulfilling roles or meeting external criteria of children,
fidelity and indissolubility, but on the quality of the
personal relationship.
Under the Marriages Act 1972 the Minister for
Justice was given power to decide when certain sections
would become operative, and I am very pleased that
on 1st January next the minimum age at which a boy
or girl can marry has been raised to 16. It will also
be necessary for a minor between that age and 21 to
obtain the consent of
both
parents. A further section
of the Act coming into effect on the same date provides
that if the father and mother refuse their consent, the
minor can apply to the President of the High Court
in camera
for permission to marry.
An interesting survey of broken marriages in Dublin
Was carried out earlier this year by Kathleen O'Higgins
of the Economic and Social Research Institute and
published under the title of "Marital Desertion in
Dublin". She found that the majority of husbands who
leave their wives work in skilled or semi skilled occu-
pations, marry in the 20/24 age bracket and desert in
the 25/34 age group. The most common reason for
the break up of marriages is lack of communication,
followed by problems relating to drink, sex, irrespon-
sibility and adultery. It was rather surprising to see
that 4 1% of the women interviewed would like to
remarry if they could.
About a
third
of the women said things had begun
to go wrong from the beginning of the marriage. Over
half that number had courted for long periods and
later found marriage a disappointment as their hus-
bands became completely different persons.
Slightly over a third of the women reported sexual
excesses on the part of the husband and the general
impression was that the persons interviewed regarded
sex as part of the overall relationship and not to be
engaged in or enjoyed otherwise, or of using it as a
bargaining weapon to persuade their husbands, for
example, to stop drinking. How far removed from what
it should be. The body with its powerful sensuous
messages becomes the source of communication, of
acknowledgement, acceptance, appreciation of each
other. It is a communication that acknowledges de-
ficiencies but aims to receive each other unconditionally.
And in the process spouses give to each other the
fulness of meaning of their identity. The sexual act is
in fact the most powerful and recurrent act of affir-
mative love, because minds, bodies, and feelings unite
to cement the ongoing process of nurturing, healing
and growth. However, it is an unfortunate fact that
quite a high proportion of marriages do not realise
their potential.
Living in a Christian Country we have been brought
up to realise that divorce is an evil. It certainly is but
not perhaps in the way we have been brought up to
believe. The evil has very little to do with the badness
and responsibility of the spouses who were made to
bear the personal and social guilt of this action. The
evil lies in the actual suffering and consequences of
the breakdown of human bonds between husband and
wife, parents and children. How is it that two people
who start a relationship with every intention of main-
taining it, who honestly believe that this relationship
is the best thing in the world for them find themselves
a few weeks, months, years later in disarray, convinced
that their partner is a failure, imprisoning them in a
life sentence of misery?
It is often said that liberal divorce laws are respon-
sible for divorce. Whilst there is some truth in this,
it is certainly not the real explanation. The real explan-
ation is that men and women are raising the minimum
levels of personal expectations and when these are not
fulfilled the relationship comes to an end. Divorce laws
simply register these changes in the raising of minimum
standards of human integrity.
Until 1858 neither in England or Ireland could
Divorce be granted by the ordinary Courts. It could,
however, be granted by private Act of Parliament.
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