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The procedure though Parliamentary was substantially
judicial, the allegations were investigated and if sub-
stantiated, the relief sought was granted as a matter
of right and justice. In short, Parliament was the tri-
bunal for such cases and was resorted to as a matter
of recognised procedure by those who sought relief
on good grounds and could afford to pay for it. By the
Matrimonial Causes Act 1857 the procedure for Divorce
was
in England
given to a regular Divorce Court which
could pronounce a final decdee. The Act did not apply
to Ireland, and the old procedure of petitioning for
a private bill to the Imperial Parliament remained
the only method available.
The position remained un-
altered until the passing of the Constitution of Ireland
in 1922 followed by a further Constitution of Ireland
in December
1937. Under Article 41 of the latter it
was provided that:-
"The State guarantees to protect the
Family
in its
Constitution and authority as the necessary basis of
social order and as indispensable to the welfare of the
Nations and the State.
The State pledges itself to guard with special care
the
institution of Marriage,
on which the family is
founded, and to protect it against attack.
No law shall be enacted providing for the grant of
a dissolution of marriage.
No person whose marriage has been dissolved under
the civil law of any other State but is a subsisting valid
marriage under the law for the time being in force
within the jurisdiction of the Government and Parlia-
ment established by this Constitution, shall be capable
of contracting a valid marriage within that jurisdiction
during the lifetime of the other party to the marriage
so dissolved."
What then is the position here?
In a nut-shell there
is no divorce which entitles the parties to remarry —
only Divorce a mensa et thoro — a legal Separation.
What legal steps are open to parties in this Country
wishing to live apart:-
(1) Proceedings in the District Court by wife for
Maintenance (up to £15) + £5 for each child.
(2) Deed of Separation.
(3) Judicial Separation by the Court i.e. a Decree
a naeiwa et thoro. (Must prove either Cruelty, Desertion
or Adultery).
What is the position regarding English and foreign
Divorce Decrees?
An entirely different question is the recognition which
will be afforded
by our Courts
to the decrees of dissolu-
tion of marriage granted by English and foreign Courts
to persons
domiciled
within the jurisdiction of those
Courts.
Different Communities have different views and laws
respecting matrimonial obligations, and a different
estimate of the causes which justify divorce. It is real-
ised here as elsewhere that it would be ridiculous to
have a situation where a man and woman could be
held to be man and wife in one Country and strangers
in another.
This whole question was dealt with in an English
Court Decision of
Breen v. Breen
(1961) 3 All E.R. 225.
Mr. Breen had been divorced (in England) and
married his second wife in the Registry Office Dublin
in 1953. In 1961 Mrs. Breen (the second) sued for
nullity of the marriage in England on the grounds that
her husband's English divorce decree would not be
recognised in Ireland and therefore her marriage was
bigamous. This argument was based on Article 41 of
the Irish Constitution referred to earlier.
Mr. Justice Karminski held that it was highly un-
likely that the Constitution of Ireland intended, with-
out clear words, to reverse a practically universal rule
of private international law. He therefore found that
the
Law
of Ireland
recognised the validity of the
decree of dissolution pronounced by the English High
Court, dissolving the marriage between the husband and
his first wife, and also recognised the validity of the
marriage celebrated in Dublin between him and the
second wife. He approved the Judgment of Mr. Justice
Kingsmill Moore in an. Irish Case of Mayo Perrott v.
Mayo Perrott and came to the same construction and
for the same reasons as the Irish Judge.
Up to the present time
this Country recognises the
validity of a divorce granted in the Country of domicile
of the parties.
The State grants authority to marry
persons who have English or certain foreign divorce
decrees provided the parties were
domiciled
in the
Country where the divorce was obtained. A contrary
view would lead to strange results, e.g. if persons
domiciled in England were divorced and remarried the
remarriage would be valid in England and the children
legitimate but if the remarried persons came to Ireland
they would be prosecuted for bigamy and their child-
ren would be illegitimate.
But we must now consider the well known Irish case
of Mayo Perrott v. Mayo Perrott (1958 IR 336). The
Plaintiff who had been the successful Petitioner in
the High Court in London
for dissolution of
her
marriage,
sued in the High Court here for the unpaid
balance of
costs
awarded to her in the suit. It was
held by Mr. Justice Murnaghan at first instance and
affirmed by the Supreme Court on Appeal that the
order for costs could not be severed from the substant-
ive order for divorce
and could not be enforced here,
being repugnant to our policy as declared in the
Constitution. On appeal to the Supreme Court two
of the Judges, the then Chief Justice Maguire and
Mr. Justice Kingsmill Moore considered the question
whether or not the English decree of divorce would
be recognised by the Irish Courts as valid to dissolve
the marriage, and their views differed completely. The
Chief Justice stated that Article 41 subsection 3 of the
Constitution said as plainly as possible that a marriage
dissolved under the law of another State remained in
the eyes of the law here a subsisting valid marriage.
On the other hand Mr. Justice Kingsmill Moore in
his judgment expressed the opposite view. "I cannot
find, he said, anything in Article 31 (3) to suggest that
the Courts (in. the absence of further legislation) are
entitled to do otherwise than regard as valid and
effectual a divorce a vinculo granted at the time of the
shit
were domiciled in that Country,"
but later in
his judgment added, "the general policy of Article
f
41
(3) seems to me clear. The Constitution does not
honour dissolution of marriage. No laws can be enacted
to provide for a grant of dissolution of marriage in
this Country. No persons whose divorced status is
not recognised by the law of this Country for the
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