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GAZETTE
DECEMBER 1978
SECOND MARRIAGES* AFTER
CHURCH ANNULMENTS— A
PROBLEM OF LEGAL POLICY
W. R. Duncan, M.A., Barrister at Law, and Lecturer in Law, Trinity College, Dublin
The legal problems associated with second marriages
where one party has obtained a Roman Catholic Church
annulment are fast becoming familiar to lawyers. The
invalidity of such marriates at civil law, except it is clear
that the first marriage was void ab initio at civil law (in
which case no decree is necessary), leaves each partner
having the relatively unprotected legal status of co-
habitee, and renders any children born to them
illegitimate. In practical terms this means that the
dependent partner has none of the rights and protections
normally arising from the husband/wife relationship, e.g.
maintenance rites, rights relating to family property and
the matrimonial home, succession rights, protections
against abuse. In relation to their mother* any children
born of the second marriage have support rights but
imperfect succession rights, and in relation to their father
they have no automatic succession rights, and
maintenance rites which are subject to considerable
limitations and burdens, not least that of establishing
paternity, which would, if the marriage were valid, be
presumed.
It is not the purpose of this article to discuss the
wisdom or morality of the people who find themselves in
this predicament or of the Church authorities who help
them to arrive there. It will be accepted that a social
problem exists arising from the increase in the number of
legally unprotected relationships, and an attempt will be
made to explore some of the possible legal responses. In
this context it is worth remembering that the expanding
jurisdiction of the Roman Catholic Church's marriage
tribunals is not the only source of the problem, Second
marriages contracted after one of the parties has obtained
a non-recognisable foreign divorce and the formation of
long-term stable relationships not based on any form of
marriage are both on the increase, and present similar
problems for legal policy.
Response Number One:
Strict Enforcement of the Criminal Law
If the existing criminal law relating to bigamy were
vigorously enforced it would become extremely difficult
for the Roman Catholic Church to continue sanctioning
second marriages where it is known that under the civil
law one of the parties is already married. In favour of this
•The expression "second marriage" is used for convenience to indicate
a marriage between persons one of whom has taken part in a previous
ceremony with a different partner who is still alive at the time of the
second ceremony. It is appreciated that under the civil law the word
"marriage" is not strictly appropriate in a case where one party is
already married, and that under Canon Law the qualification
"second" would be objectionable by virtue of the theory that an
annulled marriage never had an existence.
policy, which would involve prosecution of the parties to
the marriage and of officials of the church involved in
sanctioning or celebrating the marriage, it may be said
that the Sate has a duty to prevent the Church usurping
its functions in relation to marriage, particularly where
the Church's activities result in the stranding of
individuals, both adults and children, in a vulnerable
status under civil law. The established position of the
minority Church of Ireland was abolished more than a
hundred years go, and since that time it has been accepted
that the State and the Church perform parallel but quite
distinct functions in relation ot marriage. It is the State's
province to establish rules regulating the civil validity and
effects of marriage, and if it allows any Church, albeit
only in relation to its own members, to undermine with
impunity the civil law it is reneging on its responsibility to
regulate marriage as a social, rather than a spiritual,
institution, and on its duty to protect the physical and
social interests and welfare of the parties.
As against this, it can be argued that underlying the
increase in the number of Church annulments followed by
second marriages are strong social pressures which are
leading to a greater incidence of marital breakdown and
an increasing desire among individuals to form second
relationships which are intended to be permanent. The
Church is responding to these pressures more rapidly
than the civil legislature. The effect therefore of subduing
second Church marriages by remorseless application of
the criminal law would be on the one hand to re-establish
the authority of the civil law, but on the other hand to
leave unaffected and unresolved the basic social problem.
There is wide agreement among sociologists that, iii an
area like that of marriage which involves intimate
personal relationships, the law, in a democratic society at
least, is fairly powerless to prevent actual changes in
social habits and morals, even if it were thought desirable
that it should try to do so. Changes in marriage laws,
even fundamental changes like the introduction of
divorce, have tended to follow and reflect changing living
patterns rather than generate them. Equally, if the civil
law fails to respond to social changes, it is to an
increasing extent ignored or ways are found to circumvent
it, and in either event it loses respect and authority. This
indeed seems to be the pattern developing in this country
where for many individuals the civil law of marriage has
ceased to be a serious point of reference.
Once it is accepted that changes are occurring in living
patterns independently of the law, then the activities of the
Roman Catholic Church in the marriage sphere appear in
a different light. They represent not so much a deliberate
challenge to the authority of the civil power, but appear
more as one of the symptoms of the failure of the civil law
to respond to change. In short, while it is clearly desirable
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