The Gazette 1978

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. 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 Response Number Two: Give Civil Effect to Church Annulments

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

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

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