Love is for Life: Pastoral Letter of the Irish Bishops
PART III Marriage: Its Graces and Its Stresses
(20.) THE DIVORCE DEBATE
182. Sadly, however, married unions do break down. Public opinion in Ireland
has been increasingly preoccupied over recent years by the problems of marriage
breakdown. It was in response to this public concern that the Oireachtas
set up the Joint Committee on Marriage Matters. Simultaneously with the
deliberations of this Committee, there are, as everyone knows, strong lobbies
campaigning for the reform of the Irish Constitution, so as to strike out
the constitutional prohibition on the introduction of any law providing
for the dissolution of marriage and thus clear the way for divorce legislation.
A vigorous national debate is currently in progress about these matters.
This debate reflects, on the one hand, the deep commitment to the family
and to the sanctity of marriage which are characteristic of Irish society;
and, on the other, the widespread public concern about the growth in marriage
breakdown. Despite the deep divisions of opinion which the debate reveals,
there would seem to be a general desire among most participants to the debate
to find solutions to the problem of marriage breakdown which would not undermine
the principle that marriage is a lifelong union and will not lead to still
further increases in marriage breakdown.
183. In a public debate like this, especially if it is conducted in a campaigning
atmosphere, promotion of one's cause and victory over one's opponents can
be held to justify any tactic; verbal abuse of the opposing side can replace
calm assessment of their arguments; emotion can prevail over charity and
reason. In a debate so fraught with consequences for our whole society as
this one, it is essential that opposing views be fairly stated and be honestly
listened to and appraised. Contempt, scorn and abuse of one's opponents
are unworthy. Abusive phrases have become regrettably common in such debates;
they should be excluded. Name-calling and emotive labelling have no place
in adult debate. There should be a presumption of good faith in one's opponents,
even when one strongly disagrees with their views. Verbal violence or threats
from the mouth or pen of Christians are detestable.
184. It is particularly important that both sides of the debate be reported
by the media with strict objectivity and impartiality. Regrettably, there
are already some signs that our print and our electronic media are leaning
heavily towards one side of the debate, the side which favours divorce .
This is ground for real anxiety. We would be rightly disturbed if all our
media were to be heavily biased in favour of one political party, because
this would damage the freedom of opinion and debate which is essential to
the democratic process. We should be even more vigilant that genuine plurality
of editorial opinion and complete fair-mindedness in reporting should be
found in media when matters so grave as marriage and divorce are being discussed.
Responsible editors owe it to the public to take conscious and deliberate
care to ensure this impartiality.
(20.1) Law and morality
185. The divorce debate raises again the question of the relationship
between law and morality, and indeed the question of Church influence upon
legislation. The Catholic Church teaches that remarriage following divorce
is impossible; but it does not follow from this alone that the laws of the
State must embody this principle. Legislators have many considerations to
keep in mind when they are drafting or enacting legislation. They have to
consider the convictions of those who are not Catholics and those who do
not accept the Catholic Church's teaching. They have to try to give citizens
the maximum of freedom that is consistent with the rights of others and
with the common good of society. They have to aim at creating a body of
laws which, as far as possible, favours reconciliation between citizens
and communities Their first concern as legislators, however, is for the
well-being and the common good of society as a whole. Few will deny that
the stability of the social fabric and the well-being of society are closely
linked with the stability of marriage and the family.
186. The divorce debate, therefore, raises questions of the public welfare
and the common good. It raises questions of public, and not just private,
morality. The Catholic Church's stand in matters concerning law and morality
has been frequently stated. It has been consistent throughout repeated debates
over recent decades. We cite some of the relevant documents in Appendix
II.
187. In any debate concerning divorce legislation the position of the Catholic
Church would be unchanged. We do not ask that Catholic doctrine as such
be enshrined in law. We recognise that morality and civil law do not necessarily
coincide. Nevertheless, moral issues affecting the whole of society are
raised by the question of divorce; and we as pastors have a responsibility
to offer moral guidance to Catholics to help them to form their consciences
in respect of their moral responsibilities as legislators or as voters.
Where questions of public morality and the moral well being of society are
concerned, we have a duty and a right to call attention to the moral implications
of proposed legislation and to its consequences for the moral well-being
of the community. No Catholic hierarchy anywhere in the world has failed
to record its moral objection to the introduction of divorce or to its extension.
188. It is true that morality cannot be legally enforced. One cannot impose
virtue by law. Yet one can by law create conditions unfavourable to virtue.
Certain kinds of law can make virtue more difficult and non-virtue more
likely. Law and morality are interlinked. Law rests upon a foundation of
moral conviction. For example, laws designed to safeguard the rights of
the person or the rights of property would be quite inoperable unless there
is a shared conviction in society that what these laws command is morally
right and what they forbid is morally wrong. On the other hand, moral convictions,
in matters affecting the rights and the well-being of others, need support
from law. Conscience should ideally be enough by itself to deter people
from wrongdoing. Yet no one would feel that the consciences of employers
are a sufficient safeguard of the rights of workers, or that the consciences
of workers alone guarantee the rights of employers. No one would hold that,
for example, the consciences of contractors or tradesmen or shopkeepers
are a sufficient safeguard against dishonesty; or that the consciences of
customers are enough to protect shopkeepers against stealing. The protection
of the rights of others obviously demands that legal sanctions should support
the promptings of conscience in matters where personal behaviour touches
the rights of others and the common good.
189. Conversely, law has an influence upon moral attitudes and moral behaviour.
Law is, among many other things, a statement of what society regards as
socially and morally acceptable. In theory, people know the distinction
between morals and law. Yet they have a strong tendency in practice to regard
what is legally permissible as being also morally right; and this tendency
becomes reinforced by time and custom. For example, since abortion became
legalised in British law, it has virtually ceased to be regarded as a moral
problem for large numbers of people in Britain. Yet, before the Abortion
Law Reform Association began its campaign for a change in the law, only
a minority of Britons would have thought abortion to be morally right. The
history of the Association in question and of its campaign is a textbook
illustration of how lobbies operate and of how they can bend public opinion.
The tactics used in that campaign have served as a model for many lobbies
for 'law reform' in other countries.
(20.2) Divorce and the definition of marriage
190. The experience of other countries shows that the legalisation of
civil divorce leads rapidly to acceptance of divorce and remarriage as morally
right and socially normal. It is sometimes argued that a divorce law in
a country like Ireland would be minimal in its effects. Religious conviction
would, it is said, be so strong that only a small minority would avail of
divorce. This expectation does not seem to be justified in the light of
experience elsewhere. In the USA and in other countries, there would seem
to be little if any significant statistical difference between the incidence
of divorce and remarriage among Catholics and their average incidence in
the population at large. Catholics in England are only marginally less represented
in divorce statistics than the general population . Estimates suggest that
there may be as many as eight million divorced Catholics in the United States,
the majority of them remarried outside the Church . It is as though the
legal availability of divorce builds up a social pressure which, for large
numbers of people, becomes stronger than moral or religious resistance.
191. This is not accidental. It is a result of the fact that, when it introduces
divorce, society is in fact redefining its legal understanding of marriage.
It is simply not true that a divorce law would affect only the small minority
of marriages which break down irretrievably, leaving the happy and successful
marriages untouched. Divorce introduces a quite radical change into society's
legal understanding of marriage. The classic legal definition of marriage
in England was that set out in 1866 by Lord Penzance, when he stated:
- I conceive that marriage, as understood in Christendom, may be defined
as the voluntary union, for life, of one man and one woman, to the exclusion
of all others.
Divorce legislation immediately upturns that whole legal tradition and introduces
a completely new legal definition of marriage. Indeed, at one stroke, the
legal concept of indissoluble marriage is abolished. From being defined
in law as indissoluble, marriages, all marriages, become immediately defined
as dissoluble. Marriage becomes, in legal principle, a temporary union.
Marriage as a life-long union becomes legally obsolete. A commitment for
life is replaced by a legal commitment to stay with one's spouse unless
and until one decides otherwise. The very notion of commitment is weakened.
A couple's attitude to an intended marriage is influenced by the change.
It is not just broken marriages which are affected. All existing marriages
are in principle implicated. The 'multiplier effect' of divorce as a factor
making for instability in marriage is unavoidable and it is irreversible.
The mounting statistics of divorce which have been experienced worldwide
follow inevitably from this logic.
(20.3) "Irretrievable breakdown"
192. The concept of "irretrievable breakdown" seems a perfectly
rational and almost self-justifying basis for the legal dissolution of marriage.
It is presented as the obvious starting point for the introduction of divorce
in the Republic. The truth is, that far from being a moderate and restrictive
basis for divorce, the concept of "irretrievable breakdown" is
the basis for the most advanced and unrestrictive form of divorce in the
world today. So far from being an obvious starting point for moderate legal
reform, the concept of "irretrievable breakdown" is the end product
of a long evolution whereby, in country after country, legal restrictions
on divorce proved themselves to be unworkable and were progressively abandoned.
Divorce was, in most countries, at first based on "fault" (for
example on adultery, cruelty or desertion). This was, however, so open to
collusion, to contrived situations, to perjured or paid "evidence",
that, in most countries in the world today, fault-based divorce has been
abandoned and has been replaced by "no fault divorce", based simply
on the fact of "irretrievable breakdown". This development occurred
with bewildering speed within the space of the past fifteen years or so.
This almost universal development must stand as warning that restrictions
on divorce are in practice impossible to maintain, and that expectations
of a moderate and limited divorce law are pious hope more than well-founded
expectation.
193. The term "irretrievable breakdown" is often so used as to
suggest a responsible mutual agreement by a couple to terminate their marriage.
Instead, divorce by "irretrievable breakdown" can be sought and
obtained by the mere fact that one partner decides unilaterally to break
up the marriage and separate from his or her partner. It can be imposed
on an innocent and unwilling partner by an unfaithful spouse; and, in actual
practice, there is nothing the innocent partner can do to prevent it. It
is tantamount to divorce by unilateral repudiation. "Irretrievable
breakdown" is established in law by the mere fact of separation. The
English Divorce Reform Act 1969 required five years' separation for divorce
against the wishes of one partner, and only two years with the consent of
the partner. In country after country, however, in the past ten years, the
required period of separation has been progressively shortened. In several
European countries, divorce is obtained after one year's separation, with
the consent of the partners, and after three years' separation without consent.
194. The contemporary legal trend is towards making divorce no longer a
judicial but merely an administrative procedure. In England, when the 1969
Act was being enacted, Parliament insisted that divorce should remain judicial,
in other words that it could be granted only by the Court. Nevertheless,
in the years immediately following, by a series of court orders, a "special
procedure" for undefended divorces was introduced. Through this procedure,
a court hearing becomes unnecessary. The petitioner's evidence (which in
most cases has to do merely with establishing the "facts of separation")
is given only by means of an affidavit. If there are "relevant children"
(that is to say children under the age of 16 or minors who are undergoing
education), the petitioner is asked to see the judge in chambers, so that
the judge may be satisfied regarding the arrangements proposed for the welfare
of the children. This hearing normally lasts only a few minutes . Otherwise
the Court Registrar simply examines the affidavits. In practice, he needs
only to be satisfied about the "facts of separation". If, on the
basis of the Registrar's Certificate, the petitions are listed for decrees
nisi, then on the day of the court a clerk reads out a list of names
of cases and the Judge says something like: "In all these cases I pronounce
a decree nisi". The whole operation takes a couple of minutes.
The parties are rarely present to witness the dissolution of their marriages.
The intervention of the Judge is clearly a formality and a further step
may be to dispense with his function altogether and simply make the Registrar's
certificate the decree nisi. Thus divorce is in reality becoming
an administrative procedure. This is, in effect, "divorce on demand".
The divorce is recognised to be "divorce by post". The notion
of "postal divorce", or, in the popular phrase "quickie divorce",
is not just a future fear, it is a present fact; and it is inseparable from
the notion of divorce based on "irretrievable breakdown".
195. This progressive dilution of legal restrictions on divorce is not due
to any special libertinism on the part of other peoples, from which the
Irish could claim to be immune. It is a logical and necessary result of
the changed legal understanding of marriage. It has come about because generations
of experience in other countries have proved that restrictive conditions
simply cannot be sustained. Once divorce is introduced, it does not seem
possible to restrict it. Once the legal concept of the indissolubility of
marriage is abolished, ever-rising statistics of divorce follow with inexorable
logic.
(20.4) Divorce statistics
196. Statistics show that increase in divorce is directly correlated
with changes in divorce laws. Since divorce was first introduced in England
and Wales in 1857, there have been repeated changes in the law, each making
the grounds for divorce more 'liberal' and the procedures more simple .
Each change has been immediately followed by an upsurge in the number of
divorces. In the years following 1857, when adultery was the sole ground,
divorces went up to about 300 annually. The annual increase was slow until
1937, when the law recognised cruelty and desertion as further grounds for
divorce. In 1952, when legal aid was introduced, a new rise in the graph
was recorded; but the numbers receded again until the 1960s. In 1961, there
were 23,868 divorce decrees. In the decade from 1960 to 1970, a new series
of "liberalising" provisions was followed by a steady increase,
until in 1971 the number of divorces had reached 74,400. The year 1971 saw
the entry into operation of the most radical change so far in divorce law,
when the notion of "matrimonial offence" was virtually replaced
by the new concept of "no fault" divorce, or divorce based on
"irretrievable breakdown" . The next year, 1972, saw 117,481 divorces,
an increase of more than 43,000 over the previous year's figure. Some of
this increase was claimed to be the clearing of a "backlog" of
divorces, now made possible by new legislation. But the increase continues.
The figure for 1983 was 29,000 higher than that for 1972.
197. In the later 1970s, the operation of the "special procedure"
for undefended divorces in England and Wales led to further significant
annual increases in the number of divorces, culminating in 1983 in the figure
146,669. This represents almost 43 per cent of the total of marriages for
that year, in other words, two out of every five marriages. Britain has
the highest incidence of marriage breakdown in Western Europe. In the United
States, approximately one in every two marriages now ends in divorce. Even
divorce statistics however, no longer reveal the full extent of the effects
which the divorce mentality exerts on the understanding of marriage. There
is a growing trend in the Western world towards cohabitation without marriage.
Divorce is obviously not the only cause of this; but it is manifest that
it has massively contributed to the trend by attacking the very concept
of marriage as a lifelong institution.
(20.5) Divorce in Northern Ireland
198. The experience in Northern Ireland is particularly instructive.
In 1970, there were 300 divorces. There was a slow gradual increase until
1978, when the number was 600. In 1979, under the Matrimonial Causes (Northern
Ireland) Order, the legislation in Northern Ireland was brought into line
with the English legislation of 1971. In the following year, 1980, divorces
in the North rose to 900. In 1981, the number was 1429; in 1982, it was
1471; in 1983, it was 1655. Divorce decrees in Northern Ireland are now,
in 70 per cent of cases, based on the mere fact of separation. In ten years,
therefore, the number of divorces in the North has increased four-fold.
This has occurred in spite of the strength of Christian moral conviction
and of religious practice among all sections of the Northern population.
Churchmen of all denominations have expressed their grave concern about
the trend. So have politicians of opposing political persuasions.
199. Writing in 1977 in relation to a private Bill proposing to introduce
into Northern Ireland the provisions of the English divorce law, Lord MacDermott
firmly opposed the Bill. He pointed to the effects that the English legislation
has had in terms of escalating divorce statistics. He declared:
- In such matters as these, one has to look beyond individual cases to
the long-term effect on society. We may expect that, with statutory encouragement
for an "easy come, easy go" attitude to marriage, respect for
it as an institution will diminish, and what is linked so closely to it‹our
most vital social unit, the family‹will sustain yet another heavy blow.
Lord MacDermott held that the Bill would have gravely injurious effects
for children. Children, he wrote, suffer, not just when their parents' marriage
breaks down, but specifically when divorce follows the breakdown. The fact
of their parents' divorce itself, he held, brings about "even in quite
young children, a sense of shame and insecurity and resentment". Regarding
the proposed legislation in general, he said:
- I do not think many Protestants really want this here.
200. There are proposals at present to introduce the "Special Procedure"
in Northern Ireland. This was deliberately excluded from the Northern Ireland
legislation in 1979, when the law was otherwise being brought into line
with the English law. The Minister concerned at the time said in the House
of Commons:
- The majority of those who gave us the benefit of their opinions made
strong representations against the introduction of the special procedure
for Northern Ireland. These strong objections to the special procedure indicated
a general view that such a procedure would reduce the dissolution of marriage
to an unacceptable mere formality‹ as though it were of little consequence‹and
in honesty that is not the view of marriage still commonly held in Northern
Ireland.
If the special procedure were to be introduced into Northern Ireland, there
is no doubt but that a still further increase in the annual divorce rate
would follow there. Divorce, there as elsewhere, would become more and more
a mere administrative formality. It would still further weaken marriage
and the family, both of which have been under unprecedented strain over
the past decade and a half.
201. It is sad to note that one of the arguments now being advanced in favour
of introducing the "special procedure" for divorce in Northern
Ireland is the cost factor. It is conceded that "hearings have become
shorter; most last less than ten minutes". Yet, in the official Government
Consultation Paper accompanying this proposal, it is argued that:
- Divorce hearings account collectively for a disproportionate amount
of judicial and courtroom time.... (and) the general requirement of an oral
hearing is seen as a time consuming and expensive formality.
It is further argued that, whereas in Northern Ireland the average cost
of obtaining a decree of divorce is about £300, in England and Wales
the cost is approximately £40. In actual fact, the court time now required
in Northern Ireland for undefended divorce cases is normally three or four
minutes . It is hard to see how this could be called "disproportionate"
to the extreme personal and family and social seriousness of divorce. It
is surely astonishing to see the policy of "financial cutbacks"
being applied in an area so laden with human tragedy for spouses and for
children, and so fraught with consequences for society, as is divorce.
(20.6) Divorce and children
202. The main motivation behind the campaign for divorce is compassion
for persons locked in intolerable marriage situations, suffering mental,
emotional or even physical cruelty from their spouses, or deserted by their
spouses, who have set up house with another partner. The motive is praiseworthy,
and victims of such situations deserve sincere compassion. There are, however,
other persons than marriage partners affected by divorce; and compassion
must be felt for these as well. None are more deeply affected by divorce
than children. Whatever law may say about marriage, parenthood at least
is lifelong. Parents are forever. Even when marriage ceases in law to be
a lifelong and indissoluble union, it continues to have lifelong implications
and responsibilities, of which parenthood is the chief. None suffer more
than children do from the divorce of their parents . Children are the chief
casualties and victims of divorce. There is strong evidence from the United
States and other countries that children of divorced parents are prey to
a cluster of psychological and emotional problems and personality disorders.
Even the danger of the divorce of their parents produces a host of disturbed
behaviour patterns among children. Divorce is a markedly spouse-centred,
and definitely not a child-centred development. Children are in fact sacrificed
to the interests or whims of their parents. Divorce is experienced by children
as a rejection of them by their parents. The remarriage of a divorced parent
intensifies this feeling of rejection. No divorce system anywhere has ever
succeeded in satisfactorily assuring the welfare and happiness of children
in divorce. Indeed, as "no fault" ideas of divorce become accepted,
and as divorce becomes an administrative rather than a judicial procedure,
less and less attention is paid to the rights of children.
203. It is argued, of course, that the real damage suffered by children
is due, not to divorce, but to marriage breakdown. It is said that children
suffer more from an unhappy home than they suffer from a divorce. Children
certainly do suffer grievously in unhappy marriage situations, or from parental
separation without divorce. Nevertheless, divorce adds its own specific
dimension of damage to children over and above home tension or even parental
separation. There are studies which suggest that children prefer even an
unhappy marriage relationship between their parents to the divorce and remarriage
of their parents. To the shock caused to children by the break-up of the
parents' marriage, divorce and remarriage add the further stress of the
appearance of a new "father" or "mother" in their lives.
The child is torn by a conflict of loyalties. The wound is constantly reopened
by visits to or by the "real" father or mother. A crisis of identity
can develop. There have also been many studies of post-divorce step-parental
relationships and their effects on children. They reveal a sad
history of conflict and tension. The child is emotionally torn inside between
the step-parent and the real parent. The child becomes the victim of a tug-of-love
struggle between his or her own conflicting emotions, superadded to the
competition between ex-wives and ex-husbands for their affection. Children
are sometimes rejected by a post-divorce "step-parent". The sexual
maturation of children of divorced parents is often affected . American
research indicates that the offspring of divorced parents are themselves
more divorce-prone than others.
204. An Ecumenical Working Party on the Effects of Divorce on Children,
set up in 1980 by the then Archbishop of Canterbury, reported in 1983. The
Report is entitled Children and Divorce. It concludes:
- 1. The divorce process upsets and disturbs all children in the short
term.
- 2. Divorce may affect children detrimentally in the long-term, and probably
does so to a much greater extent than is commonly realised.
- 3. The degree of distress caused to a child arising from conflicting
loyalties may lead to a severe loss of integrity, self-esteem and capacity
for responsible judgement, which can affect his or her spiritual, mental,
physical, moral and emotional development.
- 4. Divorce involves spiritual dilemmas for children, as well as for
adults.
In an Appendix to this Report, one contributor writes:
- Divorce is always a disaster for children. This is true even if their
parents' marriage was stormy, unhappy or violent, or any combination of
these. It is true also of civilised divorces. . . Divorce must be seen as
one of the hazards of childhood.
The extent of the price paid by children for the divorce of their parents
is shown by the fact that about one million children in Great Britain at
present have divorced parents. It is estimated that 1,600,000 children will
have divorced parents by the end of the century. The figures vividly illustrate
the built-in "escalator effect " of divorce . It is all too sadly
true that today's remedy becomes tomorrow's disease. It was with good reason
that the Vatican Council spoke of divorce as a plague (Gaudium et Spes,
no. 47).
(20.7) Divorce and women
205. After children, it is undoubtedly women who are the chief sufferers
from divorce. There are many indications that divorce favours men rather
than women. One California study found in 1981 that men experienced a 42
per cent improvement in their standard of living following divorce, while
women experienced a 73 per cent loss. A man finds it easier to meet a new
and younger partner and begin a new life, than does a woman who has borne
children and still wishes to care for them. Divorce obviously increases
the number of one-parent families and it is interesting to note that in
England some 70 per cent of these are now lone-mother households. The proportion
of families headed by a divorced mother more than doubled in Great Britain
between 1972 and 1979. The proportion of lone-mother households in Northern
Ireland in 1984 was 85 per cent of the total of single-parent households.
Maintenance orders are in practice difficult to enforce. Many divorced women
and their children are forced to depend on social welfare and supplementary
benefits. It is reckoned that there are 392,000 divorced women in Britain
now living on supplementary benefit.
206. The Divorce Reform Act of 1969 in England required the courts so to
exercise their power as to place the parties, so far as is practicable and,
having regard to their conduct, just to do so, in the financial position
in which they would have been if the marriage had not broken down and each
had properly discharged his or her financial obligations and responsibilities
towards the other. The English Law Commission, however, in 1980, in a discussion
paper, concluded that this provision had, in practice, served "little
useful purpose". Legal opinion moved quickly towards the concept of
the "clean break" divorce. The Matrimonial and Family Proceedings
Act, which became law in October 1984, does in fact give statutory recognition
to the principle of the "clean break", qualified however by the
Court 's obligation to give priority consideration to the welfare of the
children. The Act enshrines the concept of effecting a smooth transition
from the status of marriage to the status of independence. Several commentators
seriously question, however, whether the principle of the welfare of the
children will prove to be meaningful and effective in practice, or whether
it will adequately protect the interests of divorced women. More and more
the law in England is moving towards the notion of "clean break divorce",
with its underlying assumption that husband and wife should be financially
independent, both within marriage and after divorce.
207. Increasingly, court practice in other countries expects the wife to
be working and to be financially independent during the marriage, and to
remain financially independent after divorce. The philosophy of "no-fault"
divorce, or divorce based on "irretrievable breakdown", is that,
once a marriage is "dead" the obligations attached thereto should
be pronounced dead also, including the obligation to support the former
wife who, legally is now a stranger. In many countries, divorce is coming
now to be widely regarded as a "clean break" with the previous
marriage. When "no-fault" divorce was being introduced, provisions
were invariably included for protection of the divorced wife against hardship,
financial or other. In practice, the provision has not worked. In principle,
it is actually opposed to the concept of divorce based on "irretrievable
breakdown', that is to say, based merely on "the facts of separation".
Divorce has become literally "divorce on demand", regardless of
financial hardship. In Northern Ireland, the Court has never been known
to refuse divorce on grounds of hardship. In many countries, the attitude
is growing that women who contest divorce suits, on grounds of hardship
or otherwise, are being "vindictive", "insisting on their
pound of flesh', "abusing the law to harass the spouse", demanding
a "meal-ticket for life". In fact, no divorce law has ever been
devised which effectively solves the problem of financial injustice following
upon divorce.
208. It is true that a majority of divorces are sought by women. The same
is the case for a majority of separation orders. It must be remembered,
however, that, where legal divorce exists, the divorce court becomes the
normal method for obtaining legal recognition of separation and for seeking
maintenance. Consequently, even for wives who oppose the divorce in principle,
it is the normal legal mechanism for a wife seeking maintenance for herself
and her children or seeking protection for her property rights.
209. It would, of course, be wrong to identify divorce as the cause of all
the problems of broken marriages. Undeniably, however, the existence of
divorce increases the rate of marriage breakdown. Divorce is first introduced
as a measure of compassion for the hardship of couples whose marriage has
broken down beyond hope of reconciliation and who are not deterred by religious
or moral conviction from contracting another relationship. The remedy for
a minority of marriages which fail becomes, however, itself a factor causing
more marriages to fail. Experience of divorce in every other country shows
indisputably that divorce cannot be restricted in law and that its growth
cannot be limited in fact. A divorce mentality spreads through the community.
Divorce becomes socially acceptable, even fashionable. It comes to be regarded
as one of the signs of a "civilised ", "tolerant " and
"liberal' society. A country lacking divorce is castigated as morally
backward.
210. In a society with divorce, married people have less motivation to work
hard to make their marriage successful, to overcome crises together and
be reconciled after quarrels. Marriage itself becomes regarded less as a
lifelong commitment and more as an arrangement which can be terminated if
it does not "work out". As a result, people enter marriage with
less sense of seriousness. Couples seek divorce who, if this option had
not existed, would have surmounted the crisis and gone on to a second phase
of their marriage, which could have been even more satisfactory than the
first. In this second phase, the couple could well have been happier together
than either of them has been following divorce. Two researchers in the University
of Bristol in 1984 surveyed a sample of divorced persons. They found that
40 per cent of the sample now wish that they had not been divorced. Many
of the remarried spouses expressed regret that they had changed partners.
An impression is often given nowadays that divorce is followed by a "happy
ever after" relationship in a new marriage. Instead, partners often
bring into the new marriage the very same problems which led to the breakup
of the first. Second marriages following divorce have themselves been found
to show a high rate of breakdown.
211. It is claimed that many of these dangers could be eliminated by building
conciliation procedures into divorce legislation. This hope is not supported
by the evidence. The 1983 Ecumenical Report, Children and Divorce, to
which we have already referred, deplored "the virtual disregard of
the reconciliation provision" included in the Divorce Reform Act, 1969.
Most observers now admit that these provisions are now a dead letter. Experience
worldwide has shown that, however well intended, provisions for conciliation
and reconciliation quickly become obsolete once divorce becomes available.
The motivation for saving the marriage seems no longer to exist or to be
sufficiently strong. One of the Bristol University researchers to whom we
referred said that:
- There are disturbing indications that the divorce process once started,
has a juggernaut-like momentum of its own, which can leave the parties apparently
powerless to apply the brakes. There are cases in which the solicitors appear
to have been blind to the possibility of reconciliation, and where people
felt they had been pushed into a divorce.
212. There is a strange similarity between these words and those written
by the man chiefly responsible for introducing the very first divorce act
in England in 1857, Lord Campbell. Only a few years after the passing of
the Act, seeing the annual increase in divorces even then, he wrote:
- I have been sitting two days in the Divorce Court, and like Frankenstein,
I am afraid of the monster I have called into existence. . . There seems
some reason to dread that the prophecies of those who opposed the change
may be fulfilled by a lamentable multiplication of divorces and by the corruption
of public morals.
Net publishing courtesy of the Newman Center at Caltech
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