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Cases For and Against Divorce

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CASES FOR AND AGAINST DIVORCE

This document consists of the full text (in English) of the statements in favour of and against the proposed Irish divorce referendum produced under the supervision of the Ad Hoc Commission on Referendum Information in 1995.
Information on the composition of the Commission appears in the statements.
The document is also printed in the Irish language, but not in this internet version.

Here is some background information on the Irish divorce referendum:

Article 41.3.2 of the Irish Constitution of 1937 states:
No law shall be enacted providing for the grant of a dissolution of marriage.

In 1986, a referendum to remove this ban on divorce was defeated . The "Yes" vote was 36.5%.

On Friday 24 November 1995, the Irish People will vote again on a new referendum. The wording of the referendum appears at the beginning of each of the statements.

The full text (in English) of the statements now follows:

Statement of the Case in favour of the proposed amendment

Statement of the Case against the proposed amendment

A Statement of the Case
IN FAVOUR OF
The proposed amendment to Article 41.3.2 of the Constitution

2 - A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that -

(i)   at the date of the institution of the proceedings, the spouses
      have lived apart from one another for a period of, or periods
      amounting to, at least four years during the previous five years,

(ii)  there is no reasonable prospect of a reconciliation between
      the spouses,

(iii) such provision as the Court considers proper having regard to the
      circumstances exists or will be made for the spouses, any
      children of either or both of them and any other person
      prescribed by law, and

(iv)  any further conditions prescribed by law are complied with.

A vote in favour of is a "YES" vote.

The Case for the Amendment

Thousands of Irish men and women have suffered the pain of a broken marriage. Virtually all of us have a relative, friend or colleague whose marriage has ended. What's more the problem is growing. In 1986 the census showed over 37,000 people as separated, by 1991 the figure had risen to over 55,000, up by 48%. These marriages have collapsed even though you cannot get a divorce in Ireland.

This Referendum

In this referendum you have to decide whether separated people should be given a second chance to remarry. At present people in second relationships lack proper legal recognition and protection. Now they are to be given a chance of remarriage in certain limited circumstances which are to be spelt out in the Constitution.

The Amendment

To get a divorce a person will have to show that:
(a) the couple have lived apart for four out of the last five years, and
(b) there is no possibility of reconciliation, and
(c) adequate provision in the circumstances has been or will be made for the spouses and children.

There is no "quickie" or easy divorce. The grounds are restrictive but fair. They cannot be made more liberal without the agreement of a majority of voters at another referendum.

The Likely Effect on Marriage

Fortunately there are a lot more happy marriages than unhappy ones. Divorce will not turn happy marriages into unhappy ones any more than it will change unhappy marriages into happy ones. But it will give a chance to people who are in a stable and loving second relationship to obtain all the benefits that come from a happy marriage.

It is in nobody's interest that we go on ignoring reality. There are many marriages which have entirely collapsed and which are marriages in name only. On the other hand there are many caring second relationships which are marriages in everything but name. To give legal recognition to this fact can only strengthen the institution of marriage.

Support for Marriage

Extra finance and support is to be provided for marriage guidance services to help reduce the number of broken marriages. The mediation service, which helps separating couples to resolve their differences by agreement, is to be expanded and upgraded.

Children

The breakdown of marriage is always a source of sadness for those involved especially the children. Often the parents will take steps to protect and reassure them and will agree on future arrangements for their care. In some cases they are exposed to bitterness and conflict which can cause them damage.

But this damage is not caused by divorce. It is caused by the breakdown of the marriage and the children becoming part of the conflict between their parents. The availability of divorce will not increase the risk of such damage. This is particularly the case since under the amendment divorce will only become an option long after the breakdown of the marriage.

After a divorce both parents will continue to have the same rights and duties in respect of their children as they had prior to the divorce. For the first time children born to parents in a second relationship will have the chance to become members of a family based on marriage.

Finance and Property

As it stands the courts have to deal with all the financial consequences of marital breakdown. Since 1986 nineteen pieces of legislation have been introduced which give the courts power to deal with money, the family home, the division of assets, inheritance rights and pension entitlements. Divorce will not make any difference to this; it simply allows people to remarry.

The courts will continue to have power to ensure that fair and proper provision is made for all, and in particular dependent spouses and children. The question of proper provision must be considered at the time of the divorce application.

Social Welfare

No one will lose their right to any social welfare benefit or allowance by reason of the grant of a divorce.

Tax

Persons who are divorced will be taxed in exactly the same way as if they were legally separated.

Legal Aid

Legal Aid and Advice will be available under the Civil Legal Aid Scheme for those who cannot afford the cost of seeking a divorce.

Your Choice

The Constitution sets out the basic rules by which we live. Those rules should be appropriate to the realities of modern Irish life. Most importantly they should reflect a compassionate approach to the circumstances of all the people including those who have suffered a broken marriage.

This amendment is about extending the benefits of marriage to more people while recognising that some marriages unfortunately fail. If it is passed it will give a second chance of happiness for those whose marriages have ended. In casting your vote you must decide whether they deserve that chance.


This booklet has been produced and distributed under the supervision of the Ad Hoc Commission on Referendum Information, consisting of Mr Kevin Murphy, Ombudsman, Mr Kieran Coughlan, Clerk of the Dáil and Ms Deirdre Lane, Clerk of the Seanad. The Ad Hoc Commission was established on the invitation of the Minister for the Environment, Mr Brendan Howlin, TD, on behalf of the Government. The Chairman of the Bar Council was also invited by the Minister to nominate two Senior Counsel to prepare the statements of the case for and the case against the proposed constitutional amendment. The statement of the case for the proposed constitutional amendment was prepared by Mr Gerard Durcan, SC, and the statement of the case against was prepared by Mr John Finlay, SC.


A Statement of the Case
AGAINST
The proposed amendment to Article 41.3.2 of the Constitution

2 - A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that -

(i)   at the date of the institution of the proceedings, the spouses
      have lived apart from one another for a period of, or periods
      amounting to, at least four years during the previous five years,

(ii)  there is no reasonable prospect of a reconciliation between
      the spouses,

(iii) such provision as the Court considers proper having regard to the
      circumstances exists or will be made for the spouses, any
      children of either or both of them and any other person
      prescribed by law, and

(iv)  any further conditions prescribed by law are complied with.

A vote against is a "NO" vote.

Arguments against the Introduction of any form of divorce

Effects on Marriage

Divorce would change the legal basis of all marriages. The law would no longer define marriage as a lifelong commitment. This would undermine, destabilise and devalue marriage, contrary to the constitutional guarantee by the State to protect the family and the institution of marriage.

The level of marriage breakdown in this country is low by comparison with other countries. The absence of divorce must contribute significantly to this low level.

Divorce would result in an increase in the number of broken marriages. This has been the experience in other countries where it has been introduced or made more freely available. It is a likely result of the availability of divorce. There is no reason to suppose it would not occur here.

Children

Children inevitably suffer as a result of marriage breakdown. An increase in the number of broken marriages would increase that suffering. Divorce and the remarriage of one or both parents would be likely to worsen the harmful effects of marriage breakdown. All hope of the parents reuniting would be lost. The break with an absent parent would be more complete. Children would be likely to have difficulty in adjusting to living with the partner and children of any second marriage.

Financial Cost

The break up of a family leaves all its members less well off. Children and non-earning spouses, most typically women, are particularly vulnerable. Divorce and remarriage of the earning spouse would further impoverish the dependent spouse and children.

These impoverished spouses and children would have to be supported by taxpayers through social welfare payments. The indirect financial cost of dealing with the social consequences of an increase in family breakdown would also be substantial.

Broken Marriages

The law already provides the necessary remedies to deal with marriage breakdown and to protect those affected by it. That some separated spouses will enter into new relationships is also recognised. The law could not and does not seek to prohibit them from doing so. The status and rights of any children born in such relationships are fully protected. It is argued that divorce should be introduced so that the parties to such a relationship could have the benefit of being married. But the marriage available would be undermined and made conditional by the existence of divorce. This limited advantage could only be made available at the general cost of devaluing all marriages and to the specific disadvantage of the members of the original family.

Arguments against the Proposals in the Amendment

"No Fault" Divorce

Divorce would be granted upon proof that the spouses had "lived apart from one another" for four of the previous five years. A spouse guilty of desertion, abuse or other misconduct could obtain a divorce against the wishes of the wronged spouse. This would be fundamentally unjust.

The phrase "lived apart from one another" would be open to different interpretations. If it were defined to mean emotionally or spiritually apart it would involve a great deal of uncertainty and be open to abuse. If it were defined strictly to mean physically apart it might deter couples who had temporarily separated from attempting to live together again.

Existing Marriages

The proposal would apply to all marriages. A spouse who had married many years ago on the basis of a mutually binding lifelong commitment recognised by law and guaranteed by the Constitution and had been faithful to that commitment could be divorced against his or her will. This too would be fundamentally unjust.

Serial Divorce and Remarriage

There would be no limit on the number of times a person could apply for divorce and no means of preventing a person from remarrying, no matter how badly he or she had behaved in the dissolved marriage.

Which Family?

If there were dependent children of a dissolved marriage and either or both spouses were to remarry there would be two or three potential 'families'. The proposal does not indicate whether the original family would continue to be recognised and protected by the Constitution. Nor does it indicate what priority would be assigned to the obviously competing and conflicting claims of the members of the respective families. In seeking to avoid the central fact that status and rights can only be awarded to a second family at the expense of the members of the original family, the proposal leaves the protection for the members of the original family uncertain.

No Case for Change

A proposal to remove the ban on divorce was decisively rejected in 1986. There is no convincing reason to reverse that decision. If divorce were introduced there could in practice be no going back. The potential benefits it might bring are doubtful and limited. Some of the evils it would bring are obvious and certain. Others might only emerge in the course of time.


This booklet has been produced and distributed under the supervision of the Ad Hoc Commission on Referendum Information, consisting of Mr Kevin Murphy, Ombudsman, Mr Kieran Coughlan, Clerk of the Dáil and Ms Deirdre Lane, Clerk of the Seanad. The Ad Hoc Commission was established on the invitation of the Minister for the Environment, Mr Brendan Howlin, TD, on behalf of the Government. The Chairman of the Bar Council was also invited by the Minister to nominate two Senior Counsel to prepare the statements of the case for and the case against the proposed constitutional amendment. The statement of the case for the proposed constitutional amendment was prepared by Mr Gerard Durcan, SC, and the statement of the case against was prepared by Mr John Finlay, SC.


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