The Gazette 1980

DECEMBER1980

GAZETTE

whilst recognising that the family based on marriage is of prime importance to society, any such, policy must also take into account the limitations of the law and the social realities of Irish family life. Marriage is a personal relationship between two people subject to all the stresses and strains that fluctuations of physical and mental health as well as social pressures bring to it. Programmes should be created to reflect the value of marriage in practical terms. Those entering marriage, should, through education, be fully prepared for the relationship into which they are entering. Family counsellors should be available to assist spouses overcome marital difficulties. "It must also be recognised that irrespective of the state of the law or the conditions prevalent in society marriages will always break down. When that breakdown is irretrievable the object of the law should be to mitigate the harmful consequences and to assist the parties to re- organise their lives with the minimum of distress, bitterness and recrimination". To date, the State has failed to provide the required type of supports for marriage. There are no State- sponsored family counselling services that are solely concerned with marriage and education for marriage. Nearly all of the work in this area has been left to voluntary agencies who receive little, if any, State support. The Court system itself is designed in a way to exacerbate rather than alleviate family conflict, and recently-proposed legislation seeks to further perpetuate this situation. "The States policy of 'support', for marriage is a negative one. It is summed up in one sentence: the prohibitior on divorce contained in the Constitution. It is time that legislators stopped sheltering behind this Article in the Constitution and using it prove that in Ireland we protect and support the family based on marriage. The reality is that many thousands of marriages are breaking down, and the State's approach is to stand back and do nothing". "The State's failure to recognise the reality of broken marriages is creating a further social problem of major dimensions. There are many couples residing in this country who have re-married after obtaining a Church decree of annullment or a foreign decree of divorce not recognised by Irish law. These second marriages are not only invalid but also criminally bigamous, but a blind eye is turned by the State. We thus have the spectacle of a country which professes interest in protecting marriage and safeguarding marriage as an institution, encouraging members of its populace to enter into bigamous unions". Commenting on the Government's proposals for reforming family law, Mr. Shatter saicf that the first proposal is to abolish the High Courts jurisdiction in custody cases and to transfer it to the District Court, and Circuit Court, and also to abolish th£ High Court's jurisdiction to hear proceedings for judicial separation and to transfer it to the Circuit Court. This will not result in any substantial change in the law or in any way improve the remedies available to spouses upon a marriage breaking down. A matter of particular concern is that the High Court has had in recent years considerable experience in dealing with custody cases arid Supports for marriage

a comprehensive case law has been built up. The District Court and Circuit Court have had no such experience and difficulties will be encountered in practice if the High Court jurisdiction is abolished. If family cases are still to be dealt with within the existing Court structure the urgent need is to provide qualified and specialist social workers and psychiatric personnel to assist Courts dealing with marital and custody cases. Ultimately what is required is a unified system of family Courts throughout the country. Criminal Conversation The second proposal for law reform made by the Government relates to "criminal conversation, enticement, and harbouring". The Commission has recommended that these actions be replaced by what it refers to as "an action for damages for adultery". Under the Commission's recommendation if a spouse commits adultery the person with whom the adultery was committed could be sued for damages by the other spouse. The Law Reform Commission in arguing in favour of such an action suggest that it would "provide a buttress for stable marital relationships" and that it would deter persons from intruding into other peoples marriages. "The arguments against the action proposed by the Commission are, I believe, overwhelming. The Commission fails to take into account the fact that the State cannot by legislation compel spouses to be compatible and make marriages viable. Marriage is a relationship that can only function properly with the co- operation of both parties. When that co-operation breaks down, that relationship cannot be helped, but can only be demeaned by such proceedings. Such actions are not appropriate as they are only concerned with the symptoms and not the causes of marital breakdown. Upon a marriage running into difficulties the issuing of proceedings for adultery could militate against a reconciliation between spouses, and in fact drive a further wedge between them. "It is difficult to understand the Commissions reasoning. Why, for example, should the action for damages be confined to adultery? In order to establish adultery in law a Plaintiff must prove that his or her spouse has engaged in voluntary sexual intercourse with a third party. Sexual intimacy falling short of adultery between a spouse and a third person can provide just as great a "threat" within the Commissions reasoning to a marriage, as can other extra marital sexual relationships, for example, a homosexual or a lesbian relationship". "Rather than providing a means to assist spouses come to terms with their marital difficulties^ the proposed action would provide a means whereby one spouse could black- mail the other into returning to the family home without the parties first resolving their marital problems. This could place in jeopardy the welfare of children living with parents who are continuously at war with each other". No "realistic recommendations" In his summiljg-up Mr. Shatter said that "the establish- ment of the Law Reform Commission in 1976 was hailed as an event thtu would be of considerable benefit to the

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