Love is for Life: Pastoral Letter of the Irish Bishops
PART IV Marriage and the Family in Society and in the Church
(21.) THE STATE AND THE FAMILY
(21.1) The Rights of the Family
213. The Holy See 's Charter of the Rights of the Family, published
in 1983, declares:
- Those who wish to marry and establish a family have the right to expect
from society moral, educational, social and economic conditions which enable
them to exercise their right to marry in all maturity and responsibility.
The Christian call to Government in our country, both in Northern Ireland
and in the Republic of Ireland, is to elaborate, in the legal, economic
and social fields, policies which will protect marriage and support the
family. Marriage and the family are the foundations of a strong, stable
and responsible society.
(21.2) The Irish Constitution and the Family
214 The Constitution of the Republic of Ireland commits the State to
the protection of marriage and the family. In Article 41, Bunreacht na h-Éireann
declares:
- 1.1 The State recognises the Family as the natural primary and fundamental
unit group of Society, and as a moral institution possessing inalienable
and imprescriptible rights, antecedent and superior to all positive law.
- 1.2 The State, therefore, guarantees to protect the Family and its constitution
and authority, as the necessary basis of social order and as indispensable
to the welfare of the Nation and the State.
- 1.3 The State pledges itself to guard with special care the institution
of Marriage, on which the Family is founded, and to protect it against attack.
The sincerity of one's commitment to these ideals will be determined by
action, by legislative provision, by social policy, by personal practice.
Government and people in Northern Ireland have the same duty, for the good
of society itself, to witness in word and in deed to the fundamental value
of marriage and family life.
(21.3) Public Policies of Support for Marriage
215. It is hard to see how the overall interests of marriage and the
family can be properly safeguarded without a unified department or interdepartmental
group at government level which would monitor all programmes and policies,
existing or proposed, in the light of their impact on marital stability
and family welfare, and which would elaborate positive policies for strengthening
and supporting marriage and the family and for safeguarding the welfare
of children. Society neglects the family at its own peril. The Charter
of the Rights of the Family states:
- Society, and in a particular manner the State and International Organisations,
must protect the family through measures of a political, economic, social
and juridical character, which aim at consolidating the unity and stability
of the family, so that it can exercise its specific function.
- The rights, the fundamental needs, the well-being and the values of
the family, even though they are progressively safeguarded in some cases,
are often ignored and not rarely undermined by laws, institutions, and socio-economic
programmes (Preamble, I and J).
216. Economic and social deprivation creates intolerable difficulties for
many families. There is a degree and extent of poverty in Ireland today,
both North and South, which is totally unacceptable in a Christian society.
There are families in Irish society today, both North and South, whose income
does not provide them with sufficient food or clothes or fuel, who suffer
from malnutrition and inadequate hygiene, who live in sub-standard accommodation
or in decayed and squalid environmental conditions, who do not have proper
educational opportunity to equip them for living in modern society. There
are many families and social groups whose living conditions are inadequate
for elementary human well-being and minimum human dignity. There are many
families for whom "ends don't meet". There are levels of inequality
which violate justice and which make some citizens feel excluded from and
rejected by the society in which they live. This is particularly true of
the young employed, especially among the semiskilled or unskilled. There
is still unacceptable inequality of educational opportunity. God's "preference
for the poor", as revealed in the Bible and in the Gospels, is not
sufficiently reflected in our society's attitudes towards the poor and in
our public policies. The settled community's attitudes towards the Travelling
People are too often a sad reminder of this.
217. Housing policies should be carefully scrutinised in terms of their
effect on the family. It is essential that there be adequate housing to
give each newly-wed couple their own home. Some housing programmes are based
on the concept that a married couple should change house and move elsewhere
as more children are born and the family grows in size. This has the great
disadvantage that neighbourhood communities are disrupted and extended family
ties are broken. These are factors making for further instability. It is
important also that there be a "mix" of owner occupied and publicly
owned housing in all new developments, so as to reduce the segregation of
the social classes. Mortgage repayments are a heavy burden on married couples,
and public policy must aim at keeping these at reasonable levels.
218. There is no doubting but that unemployment is one of the greatest social
factors damaging family life and contributing to marriage breakdown. The
creation of jobs should be the State's social priority at this time. This
is the social reform worthy of the name. The State, however, must not be
expected alone to solve the unemployment problem. Local community enterprise
and parish based job creating programmes must be vigorously promoted.
219. Much of our social and social welfare policy has developed piecemeal;
so also has our taxation system . These have now become vast and complicated
systems, difficult to understand, difficult to operate, and especially difficult
to change. Nevertheless it is time to take a comprehensive look at social
and social welfare policy and taxation; with a view particularly to identifying
their impact on marriage and the family, which should be a central concern
for society. In curious and unintended ways, some social welfare and housing
allocation policies and some taxation codes can be abused to the detriment
of marriage and the family and to the benefit of marital separation or of
cohabitation. Familiaris Consortio says that families themselves
must become "protagonists of family politics".
- The social role of families is called upon to find expression also in
the form of political intervention: families should be the first to take
steps to see that the laws and institutions of the State not only do not
offend but support and positively defend the rights and duties of the family
(no. 44).
220. It is of particular relevance in Ireland, both North and South, at
the present time, to note that the Charter of the Rights of the Family
also states:
- The rights and necessities of the family, and especially the value of
family unity, must be taken into consideration in penal legislation and
policy, in such a way that a detainee remains in contact with his or her
family and that the family is adequately sustained during the period of
detention.
In this light, there should be scrutiny of prison regimes which would systematically
impose "closed visits " on certain categories of prisoners, that
is to say, visits during which no physical contact is allowed between a
prisoner and his wife and children. Because of past experience of security
risks, however, one has the right to expect cooperation from prisoners in
the provision of open visits . There should also be examination of policies
regarding the imprisonment of persons in conditions which make visits by
spouses or children unnecessarily difficult or prohibitively expensive.
There are many long-sentence prisoners in the North whose offences were
committed when they were still minors; their situation should be re-examined
in this light. Indeed the authorities must pay much more attention than
heretofore to the impact on conjugal and family life of the interminable
absence from home of long sentence and especially life-sentence prisoners.
Prisoners with indeterminate sentences should have their cases reviewed
regularly, with a view to having a date fixed for their release.
(21.4) Reform of Family Law
221. Just as the country's social policies should support the family,
so also should its system of law. There have been notable advances in family
law reform in recent years. Yet there are areas which still need revision.
The adversarial procedures of the ordinary legal system are often unsuitable
in the personal, intimate and sensitive area of marital and parental relationships.
These require a stress on reconciliation and conciliation procedures, rather
than on adversarial ones. They require that a counselling element become
part of a family judicial system. There would seem to be need for a new
kind of Family Court or Tribunal, to which marital and family problems requiring
legal intervention would be referred. The Family Court could also provide
a reconciliation and counselling service for marriages in trouble. It would
furthermore provide a conciliation or mediation service, through which couples
who have irrevocably decided to separate might do so with as little recrimination
among themselves and as little damage to children as possible, and with
just legal and financial arrangements for spouses and children. Judges and
others working in the family courts, as well as being specialists in family
law, should also be familiar with the special psychological and other aspects
of marital tension and breakdown. In jurisdictions permitting divorce, it
is found that reconciliation provisions are largely inoperative, to the
point of being called "a dead letter". There are much better prospects
of success for reconciliation services in a non divorce jurisdiction. Opportunities
should be available for attendance at a reconciliation hearing before other
court proceedings go forward. All proceedings of the Family Court should
be held in camera.
222. Some aspects of the present procedures for resolving the legal problems
arising from marital separation are unsatisfactory. Indeed some at least
of the present pressures for divorce in the Republic of Ireland come from
these deficiencies in existing law. Updated legal instruments are needed
whereby the Court can move expeditiously to decide the exact status that
is to obtain between husband and wife following their separation, and under
which the Court could deal with all issues arising from the separation,
including maintenance, property and custody of children, access to children
and to the family home, etc. The Family Court should be given competence
in these areas.
223. The notion of dependency of domicile for wives should be abolished.
At present a married woman's domicile is legally presumed to be the domicile
of her husband. This has humiliating, as well as potentially damaging, implications
for the wife. If her husband were to become domiciled outside the country,
a wife would also be deemed to share his domicile, even though she may never
have left the country. This implies a lack of reciprocity between wife and
husband, and does not reflect equality of persons in the marriage partnership.
The new Code of Canon Law specifies that spouses have a common domicile,
but in the case of lawful separation or for some other just reason, each
spouse may have his or her own domicile (Can. 104). The law on matrimonial
property also needs revision. Under present law, each spouse owns his or
her own property separately. The Succession Act 1965 in the Republic of
Ireland conferred on either partner important rights in the estate of the
other partner in the event of death. But in life a partner has no rights
in respect of property owned by the other unless he or she contributed financially
to its purchase. This applies even to the family home. It is true that an
Act of 1976, the Family Home Protection Act, prohibited the sale, mortgage
or other disposition of the home by one spouse without the prior consent
of the other. This measure provides important protection in practice, but
it leaves the unsatisfactory underlying principle unchanged. It is good
that local authority tenancies are now in the joint names of husband and
wife. A right of residence should be declared in favour of a spouse who
is deserted. The law should move towards the concept of community of property.
Increased legal provision for community of property should help to bind
the couple together more firmly and to provide a stronger basis for family
life. It would also be a clearer recognition in law of the true nature of
the marriage partnership.
224. The Holy See's Charter of the Rights of the Family declares:
- The institutional value of marriage should be upheld by the public authorities;
the situation of non-married couples must not be placed on the same level
as marriage duly contracted (Article 1c).
It also declares:
- All children, whether born in or out of wedlock, enjoy the same right
to social protection, with a view to their integral personal development
(Article 4e).
Law should not give equal status to marriage and cohabitation, but should
give unambiguous legal and social support to marriage. In general, all legal
and social provision for children and all child care services need to be
brought into a more unified and coherent system. Children are not objects
of law, but should be treated as subjects of rights. Children do not choose
to be born out of wedlock. Children so born should not be stigmatised because
of the circumstances of their birth. They need legal protection of their
rights. The legal reforms which will take account of the rights of illegitimate
children must not undermine the principle that monogamous and indissoluble
marriage is the legal basis of the family.
225. In the Republic of Ireland, the law relating to maintenance of spouses
and children was amended in 1976. The new Act represented very important
progress as compared with previous legislation. It provided that orders
for maintenance can be made even when the spouses are living together. A
wife thus has redress against a husband who fails to provide adequate money
for household expenses and for children. The Act provided also for attachment
of earnings for enforcing maintenance orders. There is room for further
improvements in the law. The present statutory machinery for the attachment
of earnings should be supplemented by more effective, humane procedures
to enforce maintenance orders, where a spouse who fails to support the family
has assets and income other than wages or salary.
(21.5) Averting Marital Breakdown
226. We outlined in Part III some of the main factors contributing to
marital breakdown. The broad range of measures, social, economic and legal,
which we have outlined in the previous paragraphs, are needed both to support
marriage and the family and to meet the new challenges facing marriage and
the family today. We noted previously that marriage breakdown has increased
over recent years in Ireland and is now a serious national problem. This
is not a cause for panic: the incidence of breakdown in Irish marriages
is still much less than it is in other countries. It can scarcely be denied
that the absence of divorce has been an important element in fostering stability
in marriage in the Republic of Ireland. The availability of divorce can
create a feeling that something positive has been done about the problems
of marriage breakdown. It can lessen the impetus and the sense of urgency
for positive measures to support marriage and the family, and for genuinely
preventive interventions to avert marriage breakdown. But saying no to divorce
also imposes on society a greater obligation to provide these measures.
The community's general understanding of marriage as a lifelong institution
provides a strong basis for positive public policies of support for marriage
both in the Republic and in Northern Ireland.
227. Marital breakdown in many countries has become a massive social and
national problem. The increase in marital breakdown in England has been
described as "alarming" and as a "national disaster".
Even the financial cost to the State can give some indication of the scale
of the problem. Between 1971 and 1976 the number of one-parent families
in Britain rose from 570,000 to 750,000, an increase of 32 per cent. A recognised
authority on population trends, Richard Leete, has no hesitation in saying
that this increase was "due largely to the big increase in the number
of divorced lone mothers". The rapid increase in one-parent families
during these five years can scarcely be unconnected with the introduction
in 1971 of divorce based on "irretrievable breakdown". We have
already pointed to the sharp increase in divorce statistics during those
same years. In Britain, there are now well over 800,000 one-parent families,
with 1,500,000 dependent children. The cost to the Exchequer of benefit
for these families in 1983 was considerably more than £500,000,000.
Certainly by no means all of these are the result of divorce, yet a significant
number of them are. The great majority of children in care come from broken
homes. These children are now costing the British Exchequer more than £180,000,000.
A directly divorce derived burden on the State is free legal aid for persons
seeking divorce. Since 1977, legal aid is no longer made available for undefended
divorce cases, in which, of course, legal representation is no longer necessary.
Still, however, two-thirds of all civil legal aid certificates go towards
matrimonial proceedings. In 1979/80, the cost of civil legal aid in Britain
was nearly £50 million . Dr. Jack Dominian estimated in 1981 that marriage
breakdown, directly or indirectly, was costing Britain something "of
the order of one billion pounds" per annum.
228. The financial cost of marital breakdown is, of course, far outweighed
by its human cost. A great body of professional literature testifies to
the fact that marital breakdown is a causal factor in a wide range of personality
problems and social ills. It is indeed becoming one of the major sources
of social and individual psycho-pathology in modern society. Positive policies
for averting marital breakdown are among the most urgent needs facing our
society. Marriage and the family are truly the bedrock of our civilisation.
They are a school of deeper humanity, where society's values and standards
are fostered and transmitted across the generations. It is here that faith
and love and hope, human as well as divine, are learned, shared and communicated.
Government must be constantly reminded by the electorate of its responsibilities
towards marriage and the family. New legislation and new social policies
and measures of taxation reform should be carefully scrutinised in the light
of their impact on marriage and the family.
(21.6) Preparation for Marriage
229. It is paradoxical that marriage is one of the easiest contracts
to enter into, though one of the most serious in terms of its consequences
and responsibilities for the whole lifetime of the partners. International
statistics show that marriages contracted under the age of 18 have a higher
risk of breakdown. It would seem therefore, that the minimum legal age for
marriage should not be less than 18. It would be useful to have a legal
requirement for adequate prior notice of intended marriage.
230. There is urgent need for more systematic provision of preparation for
marriage, both in terms of general education in human and sexual relationships,
and in terms of direct pre-marriage preparation. "Sex education"
is often understood in a narrow sense which sees sexuality as a merely physical
phenomenon, which could be adequately taught in biology classes, in isolation
from its true context in loving human relationships. "Sex education"
classes in other countries have sometimes presented sex in a clinical and
so-called "value-free" manner. Such a presentation lessens reverence
for sexuality and could even encourage sexual experimentation by children.
Sometimes indeed "sex education" programmes have been strongly
weighted towards instruction about various forms of contraception. This
is perceived by children as an invitation to engage in sexual intercourse.
Sexuality must not be isolated from its emotional, moral, spiritual and
religious dimensions. Education of children in human sexuality and in relationships
is primarily the right and duty of parents. It is imparted, not only in
formal instruction or discussion between parents and children, but, even
more importantly, through the influence on children of the relationships
between the parents themselves . The atmosphere of love and forgiveness
which pervades a marriage and which prevails between parents and children
is the best preparation which children can receive for their own future
marriage and parenting. More formal education in male/female relationships
is however also necessary. Ideally, parents should provide this themselves.
Sometimes however they feel inadequate to do so or are deterred from doing
so by a false sense of modesty.
231. Parents must, therefore, be helped by schools in providing the necessary
instruction. It is not sufficiently appreciated that excellent programmes
of education in relationships already exist in the majority of Catholic
schools. Catholic school heads and teachers deserve public recognition and
gratitude for the excellent work they do in this domain. The need is not
for the State to introduce programmes as if none existed, but for the State
to support and facilitate what is already being done. The need is for cooperation
between State, school and parents. Education in relationships is one of
the most important of the tasks of the school in preparing young people
for life. It must be given an important place in all school curricula. There
are some indications that education for relationships for boys is not as
well catered for as it is for girls. Instruction should be provided at different
ages, in a manner corresponding to the psychological and physical development
of the child. No young person should leave school without proper preparation
for integrating his or her sexuality with Christian faith and morality,
with love, with respect for others and a sense of responsibility for others'
welfare. The effectiveness of school programmes will, however, be greatly
diminished if parents are not also involved.
232. Education will not by itself ensure right behaviour. It is a fallacy
to assume that knowledge will eliminate wrong sexual behaviour. Society
educates even more than schools do; and what society teaches may be very
much in conflict with what schools teach. There is a "hidden curriculum"
provided for young people by the attitudes and behaviour of adults, by the
media, by advertising, by commercial and social pressures, and by peer-group
influences. The responsibility of preparing young people for marriage and
family life is shared by the whole of society. Schools should not be expected
to discharge society's responsibilities for it, or to solve problems which
society creates.
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