TUARASGABHAIL O CHO-CHOISTE NA MBUAN-ORDUITHE (GNO PRIOBHAIDEACH) AR AN gCUMA INA bhFUIL AN SCEAL I SAORSTAT EIREANN MAIDIR LE BILLI A BHAINEANN LE CURSAI POSA.
REPORT OF THE JOINT COMMITTEE ON STANDING ORDERS (Private Business) ON THE POSITION IN SAORSTAT EIREANN OF BILLS RELATING TO Matrimonial Matters.
1. Three applications for leave to introduce Divorce Bills were deposited in the Private Bill Office on or before the 20th February last.
2. The Examiner of Private Bills informed the Joint Committee on Standing Orders that Standing Order No. 1 is the only Order applicable, and that if no further Standing Orders are prepared dealing with Bills of this character, he will have no option but to report that the Standing Orders have been complied with and the Bills will then be deemed to be read a first time.
Standing Order No. 1 states that “Every Bill promoted for the particular interest or benefit of any person, or that interferes with the private property of any person, otherwise than in the interests of the public generally and as a measure of public policy, shall be treated as a Private Bill.”
3. The Joint Committee considered the position, and in view of the fact that this would mean the introduction of Bills of Divorce practically without any restrictions thought it advisable to inform the Oireachtas and to place before it a statement of the present position in Saorstát Eireann as regards Bills relating to Matrimonial Matters, setting out briefly the history and state of the law in Great Britain and Ireland before the Treaty.
4. In England before the Reformation, marriage, if validly celebrated, was regarded as a Sacrament, and was indissoluble—even by Parliament. After the Reformation, the Ecclesiastical Courts continued to exercise a limited jurisdiction in Matrimonial cases, their jurisdiction being confined (i) to the granting of decrees for divorce a mensa et thoro—decrees that do not permit the remarriage of either of the parties, and (ii) to declaration of nullity of marriage for causes existing at the date of the marriage. But Parliament in rare cases before the year 1700, and in many cases between that date and 1857, passed Bills dissolving marriages. There were 317 of such Bills between 1701 and 1857.
In 1857 jurisdiction was given for the first time to an English Court to grant decrees of divorce a vinculo matrimonii—decrees dissolving marriage and permitting remarriage. The Statute conferring this jurisdiction (20 & 21 Vic. c. 85) established a Court for Divorce and Matrimonial Causes, to which was also given jurisdiction to award damages against a co-respondent, and to deal with the variation of settlements and the custody of the children of the marriage. The jurisdiction of this Court for Divorce and Matrimonial Causes has, under the English Judicature Acts, been transferred to the present Probate and Matrimonial Division of the High Court of Justice in England. The jurisdiction of this Court is confined to persons domiciled in England or Wales—which means, to cases where the husband is domiciled in England or Wales.
It will therefore be seen that in England, since the year 1857, the Courts have had complete jurisdiction, not only to grant decrees of divorce a vinculo matrimonii but also to vary a settlement made on the marriage, and to deal with the custody of the children, and that it was not necessary to go to Parliament for any of these purposes.
In Ireland, prior to the year 1871 the position of affairs with reference to divorce was similar to that in England prior to 1857. The Ecclesiastical Courts exercised a jurisdiction similar to that exercised by the Ecclesiastical Courts in England, i.e., it was confined to the granting of decrees of divorce a mensa et thoro, and to declaration of nullity of marriage on ground’s existing at the date of the marriage. But the Ecclesiastical Courts in Ireland had no jurisdiction to vary a settlement for the benefit of any of the parties, or to make an order dealing with the custody of the children of the marriage. In the year 1870, by an Act which came into force on the 1st January, 1871, the jurisdiction previously vested in the Ecclesiastical Courts in Ireland was vested in a new Court of Record called the Court for Matrimonial Causes and Matters. This Court possessed the same jurisdiction as the Ecclesiastical Courts which had preceded it and no more. Its jurisdiction was transferred under the Irish Judicature Acts to the King’s Bench Division of the High Court of Justice in Ireland. And under the Courts of Justice Act, 1924, this jurisdiction has become vested in the High Court of Saorstát Eireann constituted by that Act.
As the jurisdiction of the Ecclesiastical Courts in Ireland prior to 1871, and of the Courts to which their jurisdiction was transferred since that date, did not include the grant of divorce a vinculo matrimonii, persons domiciled in Ireland who desired such relief were obliged to resort to Parliament. Before the Union nine Divorce Bills were passed by the Irish Parliament-the procedure, and the grounds upon which the relief was given, being the same as in the British Parliament. And it is a curious fact that in at least three cases prior to the Union the British Parliament exercised its powers and granted divorce a vinculo matrimonii to persons domiciled in Ireland. After the Union the jurisdiction of the Irish Parliament was transferred to the Imperial Parliament, and Private Bills for divorce have from time to time, down to the establishment of Saorstát Eireann been passed at Westminster on the petition of persons domiciled in Ireland.
5. In considering the present position in Saorstát Eireann it is important that the limitations on the power of the Courts should be clearly understood. Their powers are restricted to (a) the granting of decrees of divorce a mensa et thoro and (b) the declaration of nullity of marriage on grounds existing at the date of the marriage. The Courts cannot vary a settlement executed on the marriage for the benefit of any of the parties and they cannot deal with the custody of the children of the marriage except by making them wards of Court—which is often undesirable. It is therefore probable that in many cases where decrees of divorce a mensa et thoro are granted by the Courts, the parties concerned may find it necessary to apply by way of Private Bill to the Oireachtas, when the justice of the case demands variation of a marriage settlement or decisions as to the custody of the children, irrespective of whether they seek divorce a vinculo matrinonii or not.
6. In England Bills relating to Matrimonial Matters are governed by special Standing Orders which restrict the class of cases for which leave is granted to introduce Bills.
Amongst other provisions it is required that before the Bill can be examined in committee the record of the proceedings and judgment in an action at law must be produced and the preamble must be proved by oral testimony. Such Bills are considered by a special committee and every precaution is taken against dishonest or fraudulent cases being brought before Parliament.
7. The Committee have carefully examined the whole problem but have not reached any definite judgment. They recognize that considerable differences of opinion exist, and that although on the one hand, there are citizens of the Saorstát who have no conscientious objection to the granting, under certain circumstances, of divorce a vinculo matrimonii and who believe that the same facilities in this respect should be available that were in existence before the Treaty, nevertheless the majority feel that such proceedings are contrary to their religious convictions and that divorce with a legal right to remarry should not be permitted.
But the Committee consider that a definite decision should be reached by the Oireachtas as to what restrictions on the introduction of Bills dealing with Matrimonial Matters are desirable, including a decision as to whether applications to introduce Bills of divorce a vinculo matrimonii may or may not be received.
8. Whilst the Committee do not desire to prejudge the decision to be reached by the Oireachtas they consider it proper to point out that the present position is unsatisfactory from every point of view as under Standing Order No. 1 unrestricted power is given to introduce Divorce Bills into the Oireachtas even in cases where a judgment of a court of law has not been previously obtained. They are of opinion that some additional Standing Orders should be prepared dealing with Bills relating to Matrimonial Matters. They also think it right to point out that, should the Oireachtas decide that Bills for divorce a vinculo matrimonii should not be introduced, an anomalous position may arise owing to the fact that, whilst a man domiciled in the Saorstát may change his domicile to England or Northern Ireland and be thereby enabled to obtain divorce with a right to remarry, a woman, who by reason of her marriage is domiciled in the Saorstát cannot, of her own accord, change her domicile and therefore will not be able to obtain divorce a vinculo matrimonii under any circumstances.
JAMES G. DOUGLAS,
Cathaoirleach an Chó-Choiste.
11adh Iúl, 1924.