The Gazette 1979

GAZETTE

JULY-AUGUST

1979

Motion for Debate: That Civil Divorce should be available in Ireland ( Text of a paper read by Professor Mary McAleese at the Society's Annual Conference in Galway, \ 3/6 May, 1979

Any apologist for Civil Divorce in the Republic of Ireland immediately finds himself or herself stuck in the middle of a huge obstacle course littered with in- surmountable myths and intractable misconceptions. For while the rest of our European colleagues busy them- selves developing sophisticated divorce systems designed to regulate at least some of the problems caused by dys- functional marriages, we in the Republic have yet to divest ourselves of the deep-rooted belief that far from being a logical and desirable answer to a social problem, divorce is in itself a social evil. In common with the rest of the Western world we hold the belief that society's best interests are served by the creation and maintenance of stable family units, set in the context of monogamous and lifelong marriage; hence our law perceives marriage as the voluntary union of one man and one woman for life, to the exclusion of all others. However while our neighbours make concessions to the inevitability that the ideal will not always be possible, we steadfastly adhere to the Golden Dream of lifelong conjugal bliss, ignoring the casualties of the married state and making no substantial contribution towards the alleviation of the misery of those who find it less than harmonious. Divorce and marriage breakdown De Valera's naive but invincible belief that the remedy of divorce was worse than the problem of unhappy marriages finds expression in Article 41 of the Constitution where immediately after pledging itself to guard the institution of marriage, the State places a total prohibition on the enactment of divorce legalisation. No real evidence was offered then, nor has it appeared since which substantiates the claim that divorce legislation threatens the stability of marriage by diluting the seriousness with which partners view the sanctity of their mutual vows and commitments. Yet it is an argument trotted out with monotonous regularity and unswaying conviction by opponents of divorce. The dangerous simplicity of the argument could perhaps have been for- given in De Valera talking in 1937 when all he had to operate on was a conglomeration of hunches and educated guesses, but in 1979 with the benefit of probing and comprehensive academic research which discounts divorce legislation as a significant factor in marriage breakdown, it is unforgiveable to continue to assert it as if it were still an incontrovertible fact. Let us look at some of the real facts. Even in a jurisdiction so idealogically committed to the ideal of lifelong marriage that it forbids divorce, marriages do breakdown. It is hardly an exaggeration to say that in the past decade Family Law in the Republic of Ireland has undergone something of a minor revolution. In that time legislative provision has been made to pay an allowance to deserted wives, spouses can be forced to provide

proper maintenance for their families, a deserted spouse has his or her right to remain in the matrimonial home protected, and a battered wife or the less likely phenomenon, the battered husband; can obtain a court order prohibiting the offending spouse from entering or residing in the 'victim's' home. In each of these instances we see an increasing involvement of the State in 'casualty marriages', the intervention being designed to provide a limited form of redress and support. None of these pieces of legislation created deserted wives or deserting husbands or caused husband-battering wives or wife- battering husbands — none of them created the phenomenon they were designed to help — rather each was a response to an extant need. In other words the deserted wife, the battered wife, the spouse threatened with eviction from the matrimonial home, these people and their dilemmas all existed before there was legislation to regulate their problems. And the story is true when we come to divorce legislation. No matter how many times we repeat the assertion that divorce wrecks homes or damages lives we cannot make it valid or true. In the words of Rheinstein in his treatise on American divorce: 1 "The breakdown of marriage is an event in the realm of fact which is different from and regularly precedes that event in the realm of law which is called divorce and which does no more than ascertain the fact that a marriage has broken down and restores freedom to the parties." Influence of social change on divorce Perhaps a critical look at the experience of our neigh- bours in England will clarify the point finally. Between 1901 and 1905 the annual average of divorce decrees made absolute was 546; in 1976 the figure was a startling 125,910. Admittedly there had been significant changes in divorce legislation in the interim, for whereas at the turn of the century, adultery was the sole ground for divorce, by 1976 it was the much wider notion of irretreivable breakdown which concerned the courts. But it would be facile to suggest that the liberalisation of the law was itself the causal factor or even a significant causal factor in marriage breakdown, for those same years there were two major world wars and profound social changes which affected and continue to affect the entire fabric of our society. To ignore the significance of these changes on the institution of marriage is to ignore the very heart and core of why marriage appears to be less stable than before. If we look at the pattern of divorce petitions in England during that seventy year period some interesting observations emerge which stress and underline the importance and impact of social factors on marriage breakdown. In both 1937 and 1969 the existing divorce law was liberalised. As soon as the new law became operative the number of petitions soared dramatically but within a couple of years had dropped equally drama- 95