Divorce Irish style

John Horgan

Dublin When Mr Liam Cosgrave, the Republic's Prime Minister, told the leader of the Opposition in parliament recently that he had no plans to introduce government legislation on divorce, he surprised no one who was aware of his own deeply conservative—and strongly held—views. Seen in a wider perspective, however, his action can be seen at best as a delaying tactic: sooner or later the politicians will have to face up to this key issue.

It is not only a key issue: it is also an extremely complicated one, and one whose overtones would be Gilbertian if they were not also so tragic. Divorce has to all intents and purposes been impossible to obtain in Ireland for half a century. In the brief period between the setting-up of the Irish Free State in 1922 and the passage of the Marriage Laws Amendment Act in 1927, divorce Was possible only as a consequence of a private Act of Parliament. Then, in 1937, Eamonn de Valera stitched into his new Constitution a prohibition on the enactment of divorce legislation, thus ensuring that any would-be reformer would have to face the hurdle of a national referendum on the Constitution before he couldeven approach parliament.

Thirty years after the Constitution came into effect, an all-party parliamentary committee timidly approached the subject again. It noted that the existing constitutional provision was 'coercive in relation to all persons, Catholic and non-Catholic, whose religious rules do not absolutely prohibit divorce in all circumstances', but its proposed solution to the dilemma was less than radical—a con stitutional amendment which would allow divorce, in the case of persons married in church, only on grounds acceptable to the religious denomination concerned.

Such a specious form of discrimination on religious grounds did not attract much sup port : its very unworkability as a formula may have been responsible for the lack of seripusness with which it was greeted. In the

intervening period, however, sociological and other factors have combined to force a new assessment of the situation.

On the religious side, there has been the Vatican Council, with its declaration on reli gious liberty. And, within the Catholic Church in Ireland, the processes for annulling church marriages have been put under a severe strain by the growing number of couples seeking declarations that their marriages were, for one reason or another, void in the eyes of the Church. The difficulty is, of course, that even if the Church grants an annulment, the couple concerned remain married in the eyes of the law. If they remarry in church, as happens not infrequently, they are committing bigamy (and the priest who witnesses the ceremony is an accessory to the crime). In recent years, the government has simply turned a blind eye to this practice, but its other ramifications include the fact that all children of the second union are illegitimate, and that both the spouse and children of the first marriage retain all their rights, under the Succession Act, to a share of up to two-thirds of the property of the bigamous partner When he or she dies.

The ease with which marital problems are resolved by a one-way ticket to Britain for either spouse—known colloquially as 'the Irish divorce'—leaves substantial social problems in its wake. More than 4,000 women in the Republic, for example, are in receipt of a deserted wife's allowance from the state —an allowance which is administered on the basis of a strict means test and which probably excludes as many potential claimants as it includes. Legislation providing for the mutual enforceability of maintenance orders between the two jurisdictions has only recently been passed, and even this does little more than scratch the surface of theproblem.

There are only two legal remedies available to disaffected spouses in the Republic at the moment : divorce a mensa et thoro, which does not include the right to remarry, and a legal separation by agreement. In addition, many de facto divorce cases appear under the guise of hearings under the Guardianship of Infants Act. Of these three devices, an agreed legal separation is probably the cheapest, running to somewhere between £.100 and £200 total costs, but the expense of a defended High Court hearing under either of the other headings can run into thousands.

Recently a number of people have been trying to find ways of solving the problem without having recourse to a constitutional amendment—the danger of the latter, of course, being that a referendum could easily decide to maintain the status quo, especially if either of the two ma

Spec in p (Int a ti toi rc a191 pJ aurni iee si: cided to oppose a change (only the Labour Party is positively committed to such a.development, but is highly unlikely to be to 3 position to do anything constructive about it). Among them have been Mr Justice Brian Walsh, a judge of the Supreme Court whose judgment in the McGee case (overturning part of the law against the importation of contraceptives) was a model of jurisprudence, and Mr Desmond O'Malley, a Fianna Fail front-bencher who is a solicitor and 3 former Minister for Justice.

Both of them have suggested that there is

scope for substantial development in the civil law of nullity. At piesent, civil decrees of nullity may be given in cases of 11°r1' consummation, or where the marriages have taken place under fraud or duress. As theY are decrees of nullity, in effect stating that 11° marriage ever took place, the former Part' ners are of course free to marry whomsoeve! they like. One of the difficulties about this° that the number of cases is so small-0d more than one a year, on average, according to Mr Justice Walsh—that applications and inflexiblei et toprecedents. be judged on very restrict°

d fl Id' A more serious objection is that the chi

ren of any such union would be retrosPeet" ively bastardised, with all the complications, about property and inheritance that wool° ensue. And Irish society has been slow t°, take the problems of illegitimates seriouslY,; it is less than a year since a private member Bill which Would have given illegiti010, t.e children the same inheritance rights as legit!: mate children was resoundingly defeated I" the Senate. Despite these objections, this particul° 1.

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stratagem is still overwhelmingly favoll.retue by those who want as little changt as Pos5Ibli. —notably by the Catholic ArchbishoP Dublin, Dr Ryan. Effectively, all that I would do would be to bring state law fOre closely into alignment with canon law, „„

A variation on this position is the stall':

adopted by the Bishop of Limerick, Dr Nevii.e' man, who in his most recent utterance on.t"... matter suggested ehat divorce legislat,I°d" might have to be brought about in a tintt,e, Ireland, as 'the lesser of two evils'. Given 1, likely timetable for the reunification of Ire, land, this is little more than a sophisticated version of the 'no change' position. The problems of changing the Constitu tion on such a sensitive issue are immense', and the ferocious public reaction to the cool. e paratively innocuous attempts tochange trio, laws on the sale of contraceptives shows" volatile opinion can still be on any matted! dealing with sexual morality. In the however, the very magnitude of these Prouof lems may add weight to the arguments those who believe that the right thing to. do'

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not to attempt to change the Constitution len. a piecemeal fashion, but to draft a comPle.1_, ly new one—shorter, sweeter, and cont.0,1, ing a substantial Bill of Rights. Mr de "I, era's e creation da t iisodnefihna definitely ellaysst lasted showing as gmnos so d t f fwoerat Yr y