The Gazette 1978

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

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

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.

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