Time to think about introducing some real equality for heterosexual marriages
Published 20/05/2015 | 02:30
A lot of planning went into the wedding. In 1989, before emails and mobile phones, much of it had to be organised by fax. The sun came out from behind a cloud as they stood on the steps with a sizeable wedding party. The bouquet of delicate coral roses and freesias were picked out in the husband's tie. The bride wore champagne wild silk. The reception was in a beautiful castle outside Edinburgh, the hotel organised a kilted piper, a banquet and a band.
The bride and groom, a woman and a man, returned to their home in Ireland and within three years were blessed with two beautiful, healthy sons. They made the children themselves, not by adoption, surrogacy or IVF. The children are a happy mix of their parents' qualities, good and bad. As sometimes happens, all over the world, circumstances change, the man had to work abroad, the marriage suffered and ended.
So what, you may well ask.
I was that bride and this is Ireland, where all we hear and read and see is how much a heterosexual marriage with biological kids is the centre of everything that is cherished and sacred and has to be sanctified and eulogised. It's enshrined in our Constitution. Not only that, the woman, by virtue of her special place in society, must not even be forced to work lest it affect the stability of the home.
But my heterosexual marriage is not recognised by the Church and State, nor by anyone who is eulogising such a union in favour of a No vote for same-sex marriages.
Before divorce was introduced in Ireland in 1995, some couples - including my husband and his first wife - agreed to get divorced elsewhere, so that they could move on with their lives and accept that their marriage had not worked. Just to ensure they would not get away with that, our government introduced the Domicile and Recognition of Foreign Divorces Act 1986.
'Domicile' is a nebulous concept, it is not just where you live and work, it has to be your home.
There were no children from my husband's previous marriage and the couple were in full agreement about legal separation and a subsequent UK divorce.
My first encounter with intolerance was when I phoned the parish priest to see if I could get married in our local church.
When I explained my fiancé was divorced, he asked, "why are you ringing me then?" and hung up. And then, years later, not as anyone would wish, we separated and I was subsequently told my marriage was invalid in the Irish state. INVALID. Not recognised. Not real. My children were not of a marriage.
Two months ago, the Supreme Court called for legislation to enable a uniform approach to recognition of foreign divorces.
It follows another ruling that Irish law does not recognise the validity of divorces obtained before 1986 in certain circumstances. In his dissenting judgment, Mr Justice Donal O'Donnell agreed the matter should be addressed through legislation but believed the court should do what is within its power to "limit the unnecessary distress and cost" to people domiciled in Ireland.
The State's pretence at cherishing the sanctity of male/female marriage is best explained by the case of a wife who appealed to the Supreme Court in 2004 (CK v NK). In that case, the husband sought to rely on the invalidity of the marriage to avoid his legal obligations to the family. With the convenience of the Domicile Act, he could do that, much to the distaste of the Court. Mrs Justice Susan Denham, as she then was, said "that because there was no divorce in Ireland until 1996, a considerable number of people applied for divorces in foreign jurisdictions when they had little or no link with the jurisdiction in question, and they then entered new marriages. As a consequence, anomalous and difficult cases emerge where litigants would attempt to gain an unfair advantage."
Mr Justice John L Murray added: "If the law permitted a person to induce . . . another to enter into an otherwise lawful marriage and after many years of ostensible marriage to cut himself adrift without any obligation to the other person, it would in my view undermine the status of the marriage contract itself and the constitutional rights which that person was entitled to have protected by virtue of that status."
And for good measure, Mrs Justice Catherine McGuinness said: "It is not satisfactory for the court to deal with these complex and anomalous situations on a case by case basis . . . It would be preferable that legislation be enacted both to create a clear and consistent code of recognition and to provide a remedy for persons who, through no fault of their own, have become parties to a marriage which later proves to be invalid."
Eleven years later, legislation has been ignored. So, while the Domicile Act was introduced to protect wives from husbands who filed for a divorce in another jurisdiction without consent, it overlooked the consensual foreign divorce and the negative impact of our domestic legislation on the subsequent wife.
The Act should be abolished or amended, and any marriage that has taken place legally after a consensual divorce should be recognised.
Only the legislature can effect a remedy to this marriage inequality. No referendum is required. It just takes one TD who can wear more than a Yes badge to introduce the amendment and all the Government Yes men to vote for it.
Because 'mummies and children matter', allegedly.