The Gazette 1979

GAZETTE

JULY-AUGUST

1979

much to be concerned about in continuing to forbid it. Anti-divorce lobbyists often argue that divorce damages children, yet the truth is that what damages children is not the de iure dissolution of the marriage but the process of rows scenes, violence, bitterness, recrimination and upheaval which de facto broke it up. Research shows that children of violent and broken homes suffer from mental problems in greater numbers than those from stable homes, but even without that knowledge it does not require a Ph.D. in psychology to work out that an un- happy home is not the best environment for a child nor the best education for a future spouse and parent. If we add to this the fact that research also shows that violent husbands are often themselves the victims of a violence syndrome learnt from their parents it becomes clear that by officially encouraging people to stay in unhappy relationships we are actually putting children at risk and are helping to perpetuate the syndrome of failed marriages rather than prevent it. 4 Lack of civil remedy The counterproductive effects are seen when we contrast the civil law on annulment and divorce with con- temporary canon law of the Roman Catholic Church whose traditional antipathy to divorce our constitution mimmicks. The Church has itself undergone radical change in the past number of years and has had to respond to our changing world. It has, laudably, yielded to the demands of those trapped in marriages which have foundered for behavioural reasons; — reasons, tradition- ally ignored by both Church and State in granting annul- ments. Nowadays canonical courts regularly decide that a violent and abusive husband has been too immature at the time of the marriage to appreciate the nature of the contract, therefore no real contract could be said to have been made hence the marriage is void; it never existed. So despite the home, the children, the shared years there never was a marriage. In other jurisdictions these same reasons more logically and honestly found petitions for divorce rather than annulment, but the canon law courts in the best legal tradition, resort to semahtic fiction to achieve a desired objective without diminishing a stated principle. The moral myopia, not to mention hypocrisy of this stance which denies divorce on the one hand yet pro- vides it under a different label on the other, is matched only by the State's blind indifference to the now numerous people who fall into the limbo of being free to remarry in the eyes of the Church but who at civil law are bound by the legal bonds of a marriage the Canon Law says never existed. It is ironic that the same Church which so greatly influenced the decision to prohibit constitutionally divorce legislation, should now be itself creating a situation in which the argument of divorce becomes compelling. This lack of civil remedy is further complicated by the fact that many people in this no-man's land, do enter new relationships some of them bigamous, in which new family units are created and illegitimate children born. Hence the absence of divorce legislation is itself a causal factor in the creation of 'illicit' relationships and illegitimacies. For those who sanctimoniously preach that divorce laws weaken the attitude adopted to marriage vows it is quite a comeuppance to realise how many of our illegitimate children are fathered by married men. Is our ban on divorce, far from strengthening the marriage bond, perhaps helping to create a situation in which a 97

come from the working classes and again research shows this class to be more at risk in terms of marriage failure than any other social class. Why this should be so is impossible to answer with any certainty for no single cause emerges, but rather one perceives a complex and intricate social process of action and interaction between education, conditioning, economic, social and individual factors in which the vast majority of marriages work well but some adapt badly. To a large degree this notion is substantiated by research in both America and Australia where financial insecurity and economic hardship are identified with marriage breakdown to a high degree. 3 Ineffective responses to marital breakdown So we are left with a picture of marriage as a vocation requiring great input from the partners and which adapts as an institution to prevailing social and environmental factors some of which may and do affect it adversely. So how do we cope? To a large extent we have been content to smugly congratulate ourselves on the fact that unlike our English neighbours we have no divorce problem and to the extent that we have no civil divorce at all, this is true; but on the other hand we do have the prelude to divorce, namely unhappy and broken marriages and it is these which are the real problem, not the rise and fall of divorce statistics on a graph. It must now be time for us to ask whether our response to marital breakdown has been a meaningful and helpful one. Our antidotes include a prohibition on divorce and a few pieces of legislation offering limited financial and personal protection to spouses of broken marriages — nothing more, even though the problem is growing. Where are the special support services for families in difficulty, the special courts with expertise in the sensitive area of intimate personal relationships. Where is the sex education which prevents unwanted pregnancies and rushed marriages and which attempts to rationalise sex as part of a loving long term relationship? Where are the attempts to alleviate financial hardship and housing problems, to distribute more equitably the nation's wealth? Is it not something of an indictment of our system that we can on the one hand claim to protect marriage from the many attacks made on it, by nothing more than the bald assertion that we will not permit divorce — and by the cushioning in a very restricted way, of families already on the casualty list? The traditional concentration of attention upon divorce and the rights and wrongs of allowing it, has done nothing more than to obscure the problems caused by marital failure and has impeded the search for constructive and effective remedies particularly in terms of presentation. If our neighbours have spiralling divorce rates it is because they too have neglected to tackle the problem at source, by developing new ways of dealing with difficult marriages, by insisting on proper, preparation for marriage, by ensuring that the first pqrstbh turned to when a crisis occurs is not a lawyer, trained in advocacy and pitched battle techniques which so often militate against reconciliation. These are some of the things we ought to be doing if we are really concerned to stop the rot setting into the entire institution of marriage, that plus a facility for severing the bonds where there is no hopd of the parties ever making a success of their marriage a facility which is a last rather than a first resort. We have so little to fear from permitting divorce and so