Academic journal article Vanderbilt Journal of Transnational Law

Ireland's Divorce Bill: Traditional Irish and International Norms of Equality and Bodily Integrity at Issue in a Domestic Abuse Context

Academic journal article Vanderbilt Journal of Transnational Law

Ireland's Divorce Bill: Traditional Irish and International Norms of Equality and Bodily Integrity at Issue in a Domestic Abuse Context

Article excerpt

I. INTRODUCTION

In 1937, Eamon de Valera drafted the Irish Constitution using text that explicitly highlighted the favored status of the Roman Catholic Church within Ireland.(1) Although Ireland ultimately dropped this express language of favoritism, its Catholic-based tenets remained in the Constitution.(2) One such tenet, found in Article 41, provided that "[n]o law shall be enacted providing for the grant of a dissolution of marriage."(3) Operating under this prohibition, Ireland was, excepting Malta, the only European country outlawing divorce.(4)

On November 24, 1995, the Irish population voted on a referendum proposing to ease the prohibition on divorce by constitutional amendment.(5) The opposing sides of the referendum warred throughout the pre-vote stage of the process.(6) On the "anti" side of the referendum, Catholic fundamentalists campaigned that a favorable vote would (1) erode the family-based morals of Ireland, (2) encourage divorce, and (3) unjustly harm the children and non-earning spouses of the first marital unit,(7) many of whom entered into the familial relationship with constitutionally supported expectations of permanence.(8)

On the "pro" side, the government argued that the referendum would allow large numbers of already separated citizens to obtain marital benefits in more promising subsequent relationships.(9) Furthermore, referendum proponents argued that a "yes" vote would facilitate the peace process in Northern Ireland by making the country more inclusive of non-Catholic ideals.(10) To buttress its position, the government emphasized in informational materials that the Irish divorce law would protect the "first family" by maintaining existing separation benefits.(11)

The referendum passed by the closest margin of any such vote since the inception of the 1937 Constitution.(12) After surviving a court challenge, divorce became the Fifteenth Amendment to Ireland's Constitution.(13)

On November 20, 1996, the Irish legislature passed the Family Law Divorce Bill (Divorce Bill) to effectuate the new amendment.(14) Among the dictates of the Divorce Bill, Section 5 provides that, prior to the grant of divorce, the spouses seeking divorce must have lived apart for a total of four of the previous five years. In addition to Section 5 and numerous provisions surrounding spousal support issues, the Divorce Bill also contains safeguards to ensure that spouses are advised of the alternative of private settlement via mediation.(15)

In Ireland, the problem of domestic abuse is severe and pronounced,(16) yet the interests of spousal abuse victims were noticeably absent from the debate surrounding the Divorce Bill's passage.(17) At first glance, the introduction of divorce seems to create a new weapon for Irish women seeking escape from an abusive marital predicament;(18) however, on closer examination, the Divorce Bill arguably discriminates against battered spouses in a fashion that subjects them to a risk of continued and increased violence. This apparent discrimination exists because the Divorce Bill, by virtue of its broad application to all divorcing spouses, subjects battered spouses to the same waiting periods and mediation possibilities as non-battered spouses. In an abusive domestic environment, such divorce delays and court-suggested dispute alternatives have a deleterious impact not found in abuse-free marital contexts.(19)

Part II of this Note focuses on the equality guarantees under Article 40.1 of the Irish constitution(20) and analyzes the ways in which Irish notions of equality are at odds with the Divorce Bill in a domestic abuse context. The analysis centers on the Irish jurisprudence that shaped the contours of Article 40.1 and ways in which the Divorce Bill's waiting period and mediation provisions potentially depart from Ireland's historic ideals of equality. Part II also examines the same provisions with regard to traditional Irish notions of the right to life and bodily integrity guaranteed by Article 40. …

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