The Gazette 1982

GAZETTE

S E PT EMBER1982

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BOOK REVIEWS | The Case for Divorce in the Republic of Ireland By William Duncan. Irish Council of Civil Liberties 1982. 107pp. IR£2.40. In view of the importance of the topic, we present contrasting reviews by Brendan Fitzgerald and Paul A. O'Connor. This book is a revised edition of a report commissioned by the Irish Council of Civil Liberties on "The case for Divorce in the Republic of Ireland". The author is Mr. William Duncan of Trinity College Dublin Law School. The first edition was in 1979. The revised edition contains a postscript giving developments in the debate on the political side and gives further up-dated statistics and results of Opinion Polls as well as an enlargement of some of the arguments and replies to objections made. It is not a legal text. It is rather a sociological study high-lighting a good deal of marriage problem areas in Ireland and dissatisfaction with the legal remedies in so far as they apply to "an increasing minority of cases" to use Mr. Duncan's phrase. The Report's stated objective is very briefly described in the blurb on the back of the cover viz. "The object of this study is to present in detail the arguments for the introduction of divorce into the Irish Republic, and to reply to those who fear that divorce would have a damaging effect on the stability of family life." A longer resumé is given in the Introduction. The Report is clearly intended as an instrument of persuasion in the campaign to provide for divorce in Ireland. Mr. Duncan acknowledges that there is no specific right to divorce nor is it a human right but claims it is a civil right. The Report contains seven short chapters (with notes, sources and references) ranging from the scale and causes of marital breakdown in Ireland in the first chapter to the summary and conclusions in the seventh. There are two appendices and the "Postscript Two Years On". Incidentally the Postscript is not referred to in the contents. It is only possible within the confines of this short review to put before readers a few of the most pertinent arguments made for the case and to comment on them. In Chapter 1 Mr. Duncan illustrates marriage breakdown in Ireland from various statistics and ends the chapter suddenly by asking the reader to accept that divorce has in fact no effect on marriage breakdown. This is said would be proved later in Chapter 5. Even at the end of the Report he makes the inconclusive statement that divorce could be the cause — or just a symptom of breakdown of marriage. He is really "begging the question". The inclusion of the number of applications to Regional Marriage Tribunals is not relevant as evidence of breakdown of marriage. He comments however that these figures "provide an indication only of the minimum extent of marital breakdown among Roman Catholic couples." (p. 13). 222

Chapter 2. "The problem defined. What's so different about divorce?" is really a misnomer because here he tries to persuade the reader that a divorce decree is the same as a nullity decree. He very properly distinguishes the terms, legal separation, decrees of nullity and divorce. A nullity decree in effect says there was no valid marriage. It is not a question of a right to re-marry as Mr.Duncan insists. He says if the result of both decrees of nullity and divorce are the same on social grounds why deny a right to remarry after a divorce decree? He seems to say that there is no legal basis for a nullity decree. Surely there must be provision for nullity, in any legal system that deals with marriage? Mr. Duncan continues however through the Report in the vein of dismissing the important place of a nullity decree in marriage laws e.g. at page 41 and Chapter 4 under heading "The future without divorce — Living with annulment" pages 44 et seq. The argument must assume that the annulment of marriage is not based on any consideration of marital breakdown. Readers could not but agree with the statement at page 33. "It should be remembered that family law represents only one element of state policy in relation to marriage and the family. In the long term it seems likely that social and economic policies, particularly in relation to housing and family income, will exercise a far greater influence on the future stability of Irish family life than changes in matrimonial laws." Recent legislation e.g. the Succession Act, 1965, the Family Home Protection Act 1976 etc. have been positive and supportive of marriage and the family but the case for divorce advocates the ultimate radical and destructive force of dissolution to deal with problems in marriage. It is good however to see reference in the Notes to the NESC Report No. 47 "Alernative Strategies for Family Income Support" in the Report. It is most relevant. At page 43 it is argued that while marriage is a voluntary free act of the parties the absence of divorce facility brings compulsion into marriage and Mr. Duncan continues "put more crudely, marriage without divorce is a trap from which each spouse knows that the other cannot escape." Readers will no doubt regard this argument under the heading "the absence of divorce being damaging to marriage and family life," which some horror and amazement. The equality (or rather inequality) argument at page 41 has two parts, one, that nullity allows re- marriage where it is possible to find defects in a marriage whereas prohibiting divorce is a form of discrimination. In fact this is not so, since in a nullity decree it must be conceded that there was legally no first marriage therefore it is not a question of re- marriage. The second, part, that the rich can get foreign decrees while the poor cannot, is far-fetched and it is not true, as practitioners will verify. It is further stated that there is collusion by practitioners. Foreign decrees create their own difficulties on domicile. The comparative systems of divorce law at chapter 6 can hardly be considered a basis for "a good divorce law"