The Gazette 1982

GAZETTE

JULY/AUGUS T 1982

which are recognized in this country, are free to re- marry but that other persons whose marriages have irretrievably broken down cannot. It is submitted that this argument, from the legal point of view, is open to question. A claim by a citizen that he has not been accorded equal protection by the State typically involves inpugning legislation which is alleged to have impermissibly discriminated between that individual and another individual similarly situated. Thus, for example, if divorce were made available in this country only to those persons who belonged to religious groups that permitted divorce, there would, in the legal sense, be discrimination. The situation which Mr. Duncan refers to does not involve a statute arbitrarily including or excluding specific classes of individuals from its provisions. Rather he refers to three different legal situations: nullity, the recognition of foreign divorce decrees, and the absence of divorce a vinculo. There is no legal discrimiantion with respect to how the law in each of these situations is applied. Logically, each of the situations is separate from the other; they each embody a different legal reality. As such, the fact that it is possible to remarry when what was thought to be a valid marriage is deemed a nullity, and where a valid foreign divorce is obtained, is incapable of supporting the view that this constitutes dis- crimination, in the accepted legal sense, against parties to valid marriages which have broken down. The case for divorce is most persuasive when it is argued from the point of view of principle. It is not possible to prove on an empirical basis the desirability of introducing divorce. This is not to suggest that empirical studies are irrelevant. Far from it. Mr. Duncan performs a useful service in drawing the reader's attention to a number of studies which cast doubt on the empirically based arguments of those who suggest that divorce is a source of marital instability. The point is made repeatedly by the author that it has not been shown in those countries that have divorce that divorce is a major determinant of marital breakdown. However, there is much that can never be proved such as whether a liberal divorce system would result in ill-considered marriages and whether children would tend to suffer more by being raised by divorced parents as opposed to remaining with the parents of a broken marriage. The revised edition of The Case for Divorce bears ample testimony to the valuable and continuing contribution being made by Mr. Duncan to the divorce question in this jurisdiction. He is to be congratulated for his efforts in this regard. Paul A. O'Connor Contract By Robert Clark. Sweet & Maxwell Ltd., London. 1982. IR£8.32/ This book is one of the first two titles in the publishers' Irish Legal Texts series. Because of the abundance of good books on English contract law, some may have felt that its production was unnecessary. However, Robert Clark has proved

which might be suitable for this jurisdiction, can be treated as separate issues. However in a polemical work of the kind Mr. Duncan has written, the omission in not dealing with a specific divorce law which might find a place in the statute books of this country is unfortunate. Divorce is not an abstract issue and in this reviewer's limited experience many people in this country feel confused as to the criteria which would be employed in any legislative scheme for divorce based on this notion of irretrievable breakdown. Given that the introduction of divorce is expressed to depend primarily on humanitarian considerations, there is no need for the author to establish that there is a high incidence of marriage breakdown. The relevant consideration is not the size of such a problem but rather the fact that marriages break down, and do so, irretrievably. Before proceeding to a consideration of the arguments adduced by the author in favour of divorce some observations ought to be made. Firstly, Mr. Duncan's attitude towards the family is fundamentally conservative. He accepts the constitutionally defined position of the family, as described in Article 41, as "the natural primary and fundamental unit group of society", and "the necessary basis of social order" and as "indispensable to the welfare of the nation and the State". One might further add that it is the family which is founded on the institution of marriage which the State in Article 41 pledges itself to guard with special care and protect against attack. Thus, to a very large extent, the author shares the same views of the family and the institution of marriage as those who oppose the introduction of divorce. Given that this is the case the major area of disagreement between Mr. Duncan and his opponents pertains to the effect which divorce would have on family life. This leads to my second observation. One cannot prove that the introduction of divorce in Ireland would not adversely affect the institution of marriage and the family. In arguing his case for divorce the author, it is submitted, does not purport to do this. What the author does purport to do, and succeeds in doing, is to provide a reasoned argument in favour of divorce. One of the principal arguments made by Mr. Duncan in support of the case for divorce is the individual's "right" to control his or her own destiny. This normative proposition is quite capable of being used to support the adoption of radical divorce systems in Irish law. However, Mr. Duncan is far from radical in his approach. Such "right" is clearly envisaged as a limited one since it is specifically linked to a divorce system based on irretrievable breakdown. Under such a system the freedom of individuals to shape the legal incidents of marriage in the way they see fit would be quite limited. The view that one should introduce divorce is grounded by the author on a political argument which is inspired by humanitarian considerations. Mr. Duncan further argues that the absence of divorce creates inequality between married persons in similar circumstances. The inequality results, it is claimed, from the fact that persons whose marriages are a nullity and those who obtained foreign divorces,

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