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GAZETTE
DECEMBER 1978
that the State should re-establish its civil authority in the
marriage sphere, it would be short-sighted for it to do so
without at the same time making the civil law more
responsive than it now is to social realities. In addition,
any attempt to do so by the strict enforcement of bigamy
laws would result either in causing considerable and
unnecessary individual suffering and misery or, more
probably, in bringing the law into further disrepute
because jurors and judges would simply not allow it tr
work.
Response Number Two:
Give Civil Effect to Church Annulments
There is some support for the view that the different
Churches should be allowed to exercise a greater influence
than at present on the civil status of the members of their
own communities. This idea was implicit in the proposal of
the Committee on the Constitution (December 1967 Pr
9817) to allow divorce only where it is acceptable to the
religious authority according to whose rites the relevant
marriage had been celebrated (para. 124). The same idea
was involved in the first draft ofwhat became the
Marriages
Act 1972,
which would have given various religious
authorities the power to grant exemption for marriagebelow
the age of 16. (The power was eventually vested in the
President of the High Court). Is there then a case for
legislation giving retrospective validity to Church
annulments; i.e. a legal policy running directly counter to the
first alternative discussion above?
Lawyers hardly need to be reminded of the difficulties
implicit in giving civil recognition to judicial decisions
made by persons other than judges appointed under the
Constitution. There is the obvious problem raised by
Article 34 of the Constitution. There is also the point that
the procedures adopted by the Regional Marriage
Tribunals may not always meet the strict requirements of
natural justice. Finally there is the objection of religious
discrimination (Article 44.2.3), because members of the
minority religious communities and persons of no
religious persuasion do not have at their disposal the same
facilities that are available to Roman Catholics.
Apart from these legal and Constitutional objections,
the civil recognition of Church annulments would be
wrong because it would confuse the rules of Church and
State, which in this sphere are quite distinct. The only
concern of the Roman Catholic matrimonial tribunals in
their nullity proceedings is the validity of marriages. The
State must concern itself not only with the question of
whether or not a valid marriage has come into being, but
also with the repercussions of the relationship on the
rights and duties of the parties, and with the welfare of
any children that may have resulted from that
relationship. The Church tribunals do not consider the
effect of their decisions on children of annulled marriages,
nor do they attempt to resolve any of the maintenance
and property problems that may arise. The State has a
duty to do so (see, e.g., the detailed proposals on these
matters in the Attorney General's Paper Document on the
Law of Nullity in Ireland 1977 Prl 5628), and would be
acting irresponsibly if it were to recognise die decrees of a
tribunal that does not do so.
Response Number Three:
Reforms in the Civil Law of Nullity
Very strong arguments for reform of the civil law of
nullity have been expressed in the Attorney-General's
Discussion Document on the Law of Nullity and
that document is now being considered by the Law
Reform Commission. Whatever reforms are eventually
recommended and enacted, it is inevitable that one result
will be a greater convergence between the grounds of
annulment accepted by the Canon Law and the Civil Law.
But that the civil law should be codified with the deliberate
aim ofproducing such convergence is doubtful in view again
of the differing interests which the Church and State have in
the institution of marriage.
As part of the legal response to the broader problem of
marital breakdown and the formation of "illicit"
relationships, the civil law of nullity can only perform a
limited role. If the law of nullity is confined to its proper
function, i.e. that of defining the minimal requirements of
a valid marriage and specifying a procedure whereby
initially defective marriages can be declared invalid — it
cannot necessarily play any major role in resolving
problems created by marriages which have had an
existence but which have later broken down. When nullity
is used as a device for coping with broken as distinct from
non-existent marriages, it becomes in its operation
dishonest, artificial, damaging and discriminatory. It is
artificial and dishonest because it does not approach the
problem of breakdown realistically but instead converts it
into an issue of fitness to enter marriage. It is potentially
damaging to the institution of marriage because the issue
posed in nullity proceedings, whether there exists a valid
marriage or not, is such as to make irrelevant the possibility
of reconciliation. It is discriminatory because its effect is to
allow "re-marriage" to individuals who can establish initial
defects in their marriage while denying "remarriage" to a
person whose marriage, though once successful, has
subsequently broken down.
For these reasons it would be naive to expect and
foolhardy to demand too much from the current moves to
reform the civil law of nullity, necessary though they are.
In addition there are reasons for suggesting that, even if
the grounds of civil annulment are brought closer to those
accepted in Canon Law, the civil law tangles generated by
Church annulments and second marriages would not
automatically be unravelled.
Firstly there would be a financial barrier. Without civil
legal aid, the cost of obtaining a civil annulment would for
most be prohibitive. Secondly, where a second marriage
has been celebrated prior to the obtaining of a civil
annulment there may be some doubt as to the effect of
that annulment on the validity of the second marriage.
This is a matter which the Law Reform Commission will
need to consider carefully, because by the time civil
nullity legislation is introduced there will exist a large
backlog of cases where second marriages have alread
occurred.
At present the position is that, where a marriage is voiu
ab initio at civil law, a valid second marriage may be
contracted by one of the parties without the necessity of
obtaining a decree in respect of the first marriage. In
practice of course a decree would generally be desirable to
establish beyond doubt the invalidity of the first marriage.
In the case of a voidable marriage a decree is necessary
though the form of the decree is such as to deem that the
marriage never existed. Hence until the decree is made,
the marriage is valid, but the effect of the decree is
retrospectively to invalidate it. If a second marriage is
contracted before the decree is granted, there is no doubt
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