The Gazette 1979

GAZETTE

JULY-AUGUST 1979

our legal heritage for something to which it has always been diametrically opposed?

that, even with the best preparation, the experience itself of marriage will turn up problems and difficulties which, if they are not to lead to a breakdown, demand early and expert remedial action. Here is the importance of marriage counselling. This work so far has been initiated principally by the Churches, and society cannot remain indifferent to it. The State itself should see in it the fulfilment of a vital social need which demands effective support. I would like to emphasise the potential of modernising the civil law of nullity for achieving substantial relief for broken marriages. At the outset, let me refer to the clear distinction between divorce and nullity, a distinction which, to judge from some of the comments made, is not widely appreciated. A divorce is a decision by a judge to dissolve a marriage which up to that point is acknowledged to have been a true and valid marriage. A decree of nullity, on the other hand, is a decision by a judge that something which at the outset had all the outward appearances of a true and valid marriage was not in fact a marriage at all for well defined reasons. It is a declaration that a marriage never existed because of some substantial defect in the law. It is evident from the history of marriage law that this is neither a new distinction nor one which has been easily confounded. The annulment doctrine has inherent consistency as well as an age old respectable tradition. It is the corollary of the basic definition of the nature of the marriage institution, of the freedom and capacity of the partners to contract and live marriage, of an established form of marriage ceremony. It declares that a substantiaj defect in any identified in the law. It is evident from the history of marriage law that this is neither a new distinction nor one which has been easily confounded. The annulment doctrine has inherent consistency as well as an age old respectable tradition. It is the corollary of the basic definition of the nature of the marriage institution, of the freedom and capacity of the partners to contract and live marriage, of an established form of marriage ceremony. It declares that a substantial defect in any of these areas renders marriage null and void ab initio. There is an urgent need to update and consolidate our marriage laws. The need is obvious when, for example, one tries to find one's way through the labyrinth of legal prescriptions which comprise the formalities for a valid marriage ceremony in our civil law. The modernisalion of our civil law of nullity could provide a remedy for many difficult family situations. The Nullity Bill proposed in • 976 by the then Attorney-General, Mr. Declan Costello, was an honest and responsible endeavour to come to terms with aspects of the social problem of marital breakdown. Its intention was clearly to preserve Irish family and social life from the evils which tyDically attend straightforward divorce legislation. The desirability of some such legislation is now even more pressing, and this is where we should be directing our attention rather than to divorce. Whatever the limitations of an annulment system, they are socially preferable to the consequences of dovorec which are so destructive of fundamental family values. A new law of nullity would have the added merit that it would be an evolutionary step, rather than an abrupt break, in our matrimonial laws. In a matter of such fundamental importance to society, what lawyer would lightly set aside the principle of the indissolubility marriage, which is an obvious and an integral part of

Code of Family Law Divorce is not the answer to our problems in the matrimonial field. It is a social evil, a social evil of such grave consequences that no relief of a relatively few genuine hard cases could compensate for it. Furthermore, there are alternatives in keeping with out traditions which could provide positive reliefs to marriage problems and which could and should be pursued. I would ask you to reject decisively this proposal to introduce dovirce into our country. Having said this, I do not think that we should adopt a passive or negative attitude. It is the responsibility of us all, including the legal profession, to take positive steps to expand and develop our matrimonial laws in order to alleviate the many hardships and injustices relating to family life in our present society. The question of irretrievably broken marriages is but one of many problems. If we do not take the initative to deal with these in a truly Christian fashion, we could at some future date be pressurised into adopting some expedient which would undermine family structures which many other traditions envy. The whole institution is so fundamental to our society that it is essential to approach desirable and necessary changes in our matrimonial laws in a comprehensive fashion and not on a fragmented basis arising from ephemeral pressures. We require the compilation of a Code of Family Law which would clarify all of the existing matrimonial legislation and consolidate also for instance, the law on illegitimacy, guardianship of infants, adoption, succession, maintenance, nullity, etc. The question of nullity, as we have seen in the most urgent issue and action should not be delayed. The need for expertise and selectivity in administering such a comprehensive code would suggest Family Courts as the most appropriate method of administering it. There is a very important aspect in all of this. The issues are too important to be left to a bureaucracy or any Government of the day. If legislation relating to public morality should continue to reflect the level of public morality in the society, proposed changes in this legislation should be initiated, researched and proposed by a body whose objectivity would be beyond doubt. This body should be seen to be free of any pressures arising either from political or religious expediency. In other words a Commission for the review and codification of family law should be established, with a comprehensive membership. It could be headed by an eminent member of the judiciary with representation on it from, for example, denominational churches, social services, the legal and medical professions. Recommendations for evolutionary improvements in our family laws would be far more likely to prove acceptable to our society coming from such a body than from any other source.

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