The Gazette 1979

JULY-AUGUST 1979

GAZETTE

Motion for Debate: That Divorce should be available in Ireland Response read by Sean P. Bedford, K.S.G., at the Society's Annual Conference in Galway, 3-6 May 19 79, to the paper of the proposer of the motion, Professor Mary McAleese, the text of which was published in the June issue o / The Gazette.

suggestion by some parties that this Constitutional provision is no more than a reflection of the Catholic ethos cannot be sustained by anyone who takes the trouble to study our legal history in this matter. In this connection, it is worth quoting the words of Lord Devlin in a lecture on 'Morals and the Law of Marriage' published some years ago by the Oxford University Press:— Society has a right to define the status of marriage in accordance with the ideas of the majority and to refuse to confer it upon those who do not conform. A society which permits no divorce at all may still properly regard itself as a free society. If the general feeling in that society, whether it springs from a religious source or from any other, is that marriage ought to be dissolved only by death, then that is the sort of marriage that society is entitled to have. Indissolubility of marriage is firmly enshrined in our existing legislation. It has taken root in our society and irrespective of religious tenets it is a fundamental social fact. There is no deprivation of either religious or political liberty in the constitutional provisions which make marriage indissoluble. In any society, everyone must agree to social norms, and, as regards marriage, must accept it as it is understood and operated by law in that society. For example, public policy in Britain demands marriage should be dissoluble; public opinion in this State demands indissolubility. If we are to contemplate a change in this fundamental issue, all of us must be fully aware of what is involved and the consequences likely to stem from a change. Certainly it reinforces the necessity to ensure stability and continuity in the law and to avoid the dangers inherent in any abrupt break in continuity with the past. We cannot, in Contemplating the proposed change in matrimonial law, adopt the extreme positivist theory that one treat law and morality as two separate concerns. One just cannot separate law from moral values. It is not realistic. They both deal with the practice of human living and with the quality of human life, and they must support each other. Law must keep close to the moral sense of the community and the moral sense of the community must inspire law. This is not repressive of minority opinion because in a civilised and Christian community toleration of differing moral viewpoints and practices will be part of that general moral sense. We are speaking, therefore, of the interdependence of law and morality.

Introduction This issue is about marriage and society. It is about the desirability of, or the necessity for, changing and existing law relating to marriage in order to overcome the hardships arising from what are broadly termed irretrievably broken marriages. It is essential, therefore, to put it in its proper perspective. The institution of marriage is so fundamental to our society that any serious debate on proposed changes to the law must embrace the very broad context of marriage and society, and the inter-reaction of the one on the other. The debate must include consideration of the moral, historical, legal and social aspects of marriage. The legal aspect will be of particular interest to you, of course. I do not have to remind you of the necessity for stability in an effective legal system, and I accept that, at the same time, change is inevitable if progress is to be made. However, we are not dealing here with the administration and interpretation of existing law. This can safely be left to the judiciary who invariably carry out these responsibilities with deep understanding and sympathy especially in the field of family law. We are considering a proposal for a very drastic change, an abrupt break in continuity with the past, in existing matrimonial law. There is, accordingly, a very heavy responsibility, especially on the legal profession, to ensure that a very objective and reasoned judgment is made on the issue. Marriage & Society If we are to discuss marriage and society there has to he a starting point. There has to be some principles and we must define what we mean by marriage and society, and what we understand to be the inter-reaction of the one on the other. Throughout history marriage has been one of the vital areas of human life which society has felt the necessity to control by law, and for the most part for reasons which have not primarily been religious ones. The relevant law, too, has always reflected fairly accurately the concept of Carriage accepted by the society in which that law applied. Unlike, for instance, Great Britain, there has been in this country an unbroken stream of legal thought and expression in this regard. The law here has never seen marriage as other than the voluntary union for life of one man and one woman to the exclusion of all others, as understood in Christian countries. Article 41(2) and (3) of the 1937 Constitution is, in legal terms, simply a continuation of this age-old tradition. Incidentally, the

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