The Gazette 1982

GAZETTE

JULY/AUGUS T 1982

where only grounds of divorce are set out. The reader may rightly ask "what's beyond the 'good divorce law' for wives and the children?" At page 69 Mr. Duncan agrees with the Canadian Commission as being against the administrative process, whereas in Note No. 16 at page 71 he argues for conciliatory procedures rather than investigation as to whether grounds for divorce have been established. There is some contradiction here. The last sentence of the Report at page 102 concludes — "The case is based rather on the view that the social consequences of its denial are far more undesirable than the risks attached to its introduction." The "social consequnces" and risks of divorce are not revealed by Mr. Duncan. He says we must try to predict. The statistics available of divorce and multiple divorce through several generations must be sufficient to predict at this stage. They just scream out as evidence that divorce is destructive of the true objective common good of Society. There is deprivation of property rights and enormous financial consequences for wives and children (as well as the State) from divorce. This is where the humanitarian argument wears very thin indeed. I think Mr. Duncan has not really shown the cold facts of divorce. He has underplayed these hardships even in his further replies to objections in the Postscript. The words of Montesquieu seem so apt: "Such is the effect of bad laws that even worse are needed to check the evils of the first." The argument for the case for divorce under the heading "the Individual's right to control his or her own destiny" p. 36 is a narrow and individualistic one. Considering that the sciences of politics, sociology and economics deal with individual and collective human welfare, the case for divorce ignores the philosophical and religious implications of man's origin, nature and destiny in relation to marriage. ("Man" of course embraces "woman"). Nowhere does the Report treat of marriage as a natural institution which is in the realm ofthe sacred. If one regards marriage as based on mere contractual rights the arguments for the case for divorce may seem persuasive to that degree only. The chapter on the different roles of Church and State could be found somewhat exasperating to many readers in Ireland. Here Mr. Duncan purports to attach blame and create confusion about a clear and legitimate jurisdiction of the Catholic Church in relation to the validity of the marriages of its members. It is difficult to see how its nullity jurisdiction could be regarded as a challenge to the civil law as stated on page 29. It may be agreed, however, there are some problems in which the civil law could help in relation to the consequences of nullity decrees. The phrase "current social teaching of the predominant Church" p. 39 is a vague and strange one. If it refers to indissolubility of marriage Catholics would not accept this as just current or social but as perennial teaching. I found the Report stimulating and provocative too particularly where some of the arguments at times became over-laid, over-persuasive. An over-eager salesman can prove to be off-putting, and one begins to ask "where are the snags?"

His painstaking research into all the varied facets of this very live and difficult issue is truly extensive. Some small criticisms of the text would be a frequent reference to a later chapter at a critical stage of an argument or vice versa a reference back to an earlier chapter. Also here and there an agrument is continued in the notes at end of chapters. The binding in this edition is unfortunately bad. Pages come loose very easily. The Report is worth reading. It impels one to deeper consideration and study of the reality of true marriage. It is so easy to get bogged down completely in the problematic aspects. This does not exclude concern to find ways and means to solve family problems. The "Case for Divorce" presents two positions. It attempts to persuade all citizens (1) to introduce divorce into the laws of the State on the general arguments made, or (2) to allow it as an "extra option" for some few people who want it. It aims at objective No. (1) but will settle for objective No. 2 if No. 1 fails. If objective No. 1 wins acceptance the success of objective No. 2 is assured. If the "extra option" argument were accepted it would be the thin edge of the wedge. It would be good to see the I.C.C.L. commission a complementary Report on the defence of marriage also. Brendan Fitzgerald This is a revised edition, with a postscript added, of the work first published in October 1979. Mr. Duncan's, The Case for Divorce in the Irish Republic has, in the intervening years, attracted a good deal of attention. The work has in the main been well received and, in this reviewer's opinion, deservedly so. The case for divorce is clearly presented by the author and cogently argued. A commendable feature of the work is the sensitivity which is displayed towards the competing view that the introduction of divorce in this jurisdiction would be socially undesirable. In short, the author is in no way dismissive of the traditional understanding of the institution of marriage in this country. The author states in his introduction that "the case for divorce is basically a humanitarian one". Specifically, it is the unhappiness which results from broken marriages which constitutes the primary justification for divorce. In such situations the author suggests that divorce should be made available to those who wish to dissolve the legal ties of marriage. He makes it clear as to what he means by an unhappy marriage: it is one which has irretrievably broken down. The system of divorce which is favoured by the author is therefore based on 'irretrievable breakdown'. There are other systems of divorce such as divorce by repudiation, divorce by consent, and diyorce based on marital fault but the author decided that a detailed discussion on the kind of divorce system which might be introduced into this juris- diction did not fall within the ambit of his study. One can, perhaps, agree that acceptance of divorce in principle, and the particular kind of divorce law 223