The issue we are addressing is by definition a fundamental issue going as it does to the root of what is described in the Constitution as the fundamental unit in our society. The Constitution in Article 41.1.1º provides that:
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.
As it stands, the Constitution under which we operate our laws recognises as a fact that the family has a primary and fundamental role to play. The family as such is not defined in the Constitution but it is clear from the development of the concept of family, either in Irish law, Brehon law, Roman law or any concept of law, that the family being referred to is the broader definition, not just the narrow unit of parents and their immediate children. Grandparents and, if they are alive, great-grandparents, are as much a part of the family and the unit we are discussing as are the parents or the children.
It is significant that the Irish term for family, Clann, is in a sense the direct equivalent of clan. The role of a family is not just the role of the husband and wife but of the dependants, as they are described in law, who extend to grandparents and even great-grandparents. We must recognise that that family where it can be promoted is a very worth-while and positive unit that should be promoted. In congested areas in our cities we do not have the balancing influence of grandparents. In settled communities of two or three generations, not necessarily in rural Ireland but in the village communities of this city like the Liberties, one of the most stable elements in those families are the "gran" and sometimes the "great-gran" or the grandfather. Compare that with what can arise in newly developed housing schemes such as Dublin Corporation have been promoting for some time. From the environmental and physical point of view they may be ideal schemes but there is always something lacking. Some of the schemes that have been regarded here as being disastrous at various stages compare very favourably in terms of the physical planning with what is available in other cities in Europe. What is missing in many cases is the real family concept involving, understandably, the old "gran" or "great-gran".
I am trying to illustrate that the stability of the family does not depend only on the husband, wife and immediate children. It goes beyond that and in any consideration we should address ourselves to that. We should take note of the contributions older generations make to stability. In my experience I can see the way my children relate to their "gran" and I know what that does for stability when, perhaps, the role of rather infrequent visitors to the home like myself would not necessarily be a great contribution to stability. Therefore, we must tread rather carefully if we are proposing changes in the way we introduce them in these areas.
One must have concern for young couples living in a rather detached suburban environment who do not have the benefit of concern, care or advice of their parents or grandparents and who have to face economic pressures and pressures of adjusting with each others personalities. That is where the problem seems to arise. We must look at the secure, stable elements which are perhaps most characteristic of rural Ireland — I am not making any great boast about that — but are also characteristic of the wonderful village communities of this great old city, places like the Ringer, where I taught for quite a while, the Liberties and so on. It is time we recognised those values and promoted them. The old Irish saying on a wedding day, "Go raibh sliocht sleachta ar shliocht bhur sleachta", "That you may have the generations after generations on your immediate family" is the real blessing and it is time we recognised it as such.
There has been a lot of talk about rights in this debate. It is important to recognise that there are rights but rights have always a balancing responsibility. A right that does not have a balancing responsibility is not a right at all, it is a licence not just one subject to certain regulations but one without restriction. That is not the type of right we want to consider. For instance, if we talk in terms of the right of a parent to exercise a separation or divorce and consider that right as being an absolute one irrespective of the rights of some others involved in that contract, the children, we are not then talking about rights any more but a licence in the sense of absolute freedom. We are not talking about a licence in the sense of a regulated control. The trend in current analysis on a number of issues is to focus entirely on rights as if they can be discharged, as if the citizen lived entirely in isolation from the society in which he or she lives.
As I try to gather my thoughts I should like to draw the attention of the staff to the fact that it is a little distracting to hear them talking. If there has to be discussion I would prefer that it be conducted sotto voce.
Let us consider marriage as a civil contract, because it is that, and leave out the religious aspect, the church ceremony and so on. It has special characteristics that some other contracts do not have and I hope I can deal with it both ways in terms of what it has in common with other contracts and what distinguishes it from them. What distinguishes it from other contracts is that the two people who enter that contract bring about a situation in which other people are born, people who were not there at the time of the original contract but who were a direct consequence of it and have rights as well as being simply accidental consequences of the contract. Therefore, when looking at the question of whether either of the two original parties to the contract can exercise their rights one must also take into account by definition the rights of those who have come into being as a consequence of the original contract. That is what distinguishes the marriage contract from others. If Deputy Barnes and myself for a variety of reasons entered into any other type of contract we can freely break by agreement between us what we freely entered into by agreement because it affects nobody else. If in discharge of our civil contract we affect other people the law will tell us that if the consequence of our discharge of a contract will have a damaging effect on others then we are not quite so free to end that contract because of that. That must apply by definition in this case.
That characteristic of the marriage contract is unlike most other contracts. For that reason we have to consider the rights of children, particularly those who are not at an age of being able to express themselves, much less protect their rights. For that reason the law has always laid down protection for children. Marriage also has characteristics of any other contract and one of them is that there is a consensus, ad idem, an agreement towards the same end for the same purpose. Where it can be demonstrated that there are no longer conditions which show a consensus ad idem, then we have the end of any contract.
I have some little experience of this as a lawyer, because I appeared as Senior Counsel before the Supreme Court with Senior Counsel, now Mr. Justice Séamus Egan, in the first nullity decree, to my knowledge, for 15 years or perhaps 20. That was in the early seventies — 1974 or 1975 — when I went back to practise after some years in Government. This decree had been refused in the High Court. I notice that even in the Law Reports the names are not mentioned. The basis on which that decree of nullity was given in the Supreme Court was that in this instance the behaviour of the male party almost immediately after the formal contract was entered into on the marriage day was of a nature which was inconsistent with any intention of having a permanent contract, despite the fact that the conduct of the couple before marriage indicated at least a sexual relationship which is characteristic of marriage. Certainly, by the second night that all ended. That would be a good base for nullifying a marriage, because no consensus was there. Since then there have been many decisions in our courts declaring that that fundamental element of consent was absent. In one recent case it was held that there was undue pressure to marry, which was a very simple, clearcut case. In the case to which I am referring there was a misleading intention — one party was conveying to the other the impression that they both agreed about the same thing when they did not. There must have been since then 40 cases of civil nullities.
We can certainly bring that element of the law, through the Statute Book, much more into line with reality. I am not talking about Church nullities which are not a matter of concern to me here; I am talking about civil nullities. An examination of the consequences of court decisions will show that the least we should do is adopt into legislation what already is decreed in so many consistent court decisions. I am taking an analytical or philosophical approach to this matter, bit it is not just as easy as using clichés like "Let us take our courage in our hands". Broader issues are involved and I hope the Chair and the House will bear with me when I address these issues. I shall address some false presumptions.
There is a trend in presentation of referring to all who are enlightened and tolerant "in these modern times"— as if every stage in the human experience has not been a modern time. Perhaps the most beautiful experiences of the human condition occurred 2000 years ago in the then modern times of Athens. Every succeeding generation must face up to reality in their modern times. I find certain presumptions a little offensive, for instance, that if you are enlightened, informed and tolerant you must, by definition, reach the conclusions suggested by certain commentators as. in their minds, the mark of the tolerant person. The person who is really engaged in deep analysis will go much beyond correspondence columns and instant comment to look at the root of our society and what secures it. I hope that we would not charge those who have one view as being troglodytes and blind and promote the others as being the only people who care. There has been a slight hint of that in the debate, both inside and outside the House. Some Deputies in favour of change, perhaps for good reasons as they see them, are very unfairly accusing those who are trying to protect what they see as valuable in the status quo of being blind and prejudiced and not being prepared to think. These are accused of closing their minds and being influenced only by the Church. That is not true and it is presumptuous to suggest that only those who argue, for instance, for the dissolution of marriage are enlightened.
Some very loose phrases have come into use in recent times in discussing issues of this sort. One phrase which is a contradiction in terms is that of "private morality" and that is the judgment of deeper and better intellects than mine. There is no basis for the concept of private morality. There is basis for the concept of private behaviour. If we suggest that morality is a matter for each individual person, as if that person lived totally in isolation from the other individuals in society whom he or she affects or by whom he or she is affected, we are proposing the ridiculous. If people suggest that what they do is their business in matters of morality, whether to do with sexuality, public order, religious freedom or whatever, that would be ignoring the whole basis of morality. It is a consensus towards the standards of the mores—the customs, habits and consensus in society and this was never better described than in a treatise by the former Lord Chief Justice Devlin of England in The Enforcement of Morals. He deliberately used to describe himself for this purpose as being a lapsed Catholic. He was certainly one of the best thinkers in this area for a long time. He points out that “what makes a society of any sort is a communtiy of ideas, not only political ideas but also ideas about the way its members should behave and govern their lives. These latter ideas are its morals. Every society has a moral structure as well as a political one”. This treatise was published in 1975 and introduced, at my request, into the Oireachtas Library five years ago.
When we talk about private morality we are talking about private behaviour within private morality. Let us not tell people that they can develop their own code of morals and do what they like in terms of marriage without affecting the rest of society, for good or ill. I am not saying that change would be for ill, but let us recognise the reality that any change for any individual will impact on others with whom that individual is in contact.
I think there would be a consensus that the family is the fundamental unit. What are we doing to protect it? The first point is to give to that family the opportunity to work and the dignity which comes with it. There are great risks nowadays in unemployed families who are under particular pressures. These pressures are avoidable if we provide adequate work and income. We must promote and protect the positive elements within the family by doing much more to provide the dignity of work and security of income which families require. We must order our society in such a way as not to bring unnecessary pressures on families which give rise to marriage breakdown. When husbands lose their dignity and hang around the house, how can there be anything but tension? Those people deserve all our sympathy and must get our support in every possible way.
