Ireland's divorce bill: traditional Irish and international norms of equality and bodily integrity at issue in a domestic abuse context.

• Author: Barnes, Anthony Tyler

1. 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 40.3 of the Irish constitution.(21) This analysis concludes that the waiting period and mediation sections of the Divorce Bill conflict with bodily integrity and right to life jurisprudence decided prior to the passage of the Divorce Bill.

   Part III of this Note examines the same legislative sections under the European Convention on Human Rights, with particular focus on Article 8 and its provisions protecting private and family life.(22) This Part argues that, in light of European Court of Human Rights case law and international human rights norms, the Divorce Bill is inconsistent with the European Convention on Human Rights with regard to battered spouses.

2. THE DIVORCE BILL AND THE IRISH CONSTITUTION

   1. Equality Under the Law

      Article 40.1 of the Irish Constitution provides that "[a]ll citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."(23) Akin to the Equal Protection Clause of the U.S. Constitution, Article 40.1 addresses state action(24) that discriminates against certain classes of individuals that fit within the judiciary's interpretation of the article.(25) Eamon de Valera, the drafter of the constitutional language,(26) described the mandate of the article as twofold: (1) a guarantee of impartiality of judges and (2) a recognition of the notion that differences of capacity and social function within classes can mandate the need for differing legal treatment.(27) This section is interpreted as applying not only to the actual application of laws, but also to the process of enactment.(28)

      As a practical matter, determining exactly what de Valera's guarantee ensures is a diffuse and, at times, contradictory undertaking;(29) however, an analysis of cases decided prior to the passage of the Divorce Bill establishes the contours of the equality doctrine relevant for a discussion of the bill in a spousal abuse context.

      As a general rule, Irish jurisprudence surrounding Article 40.1 addressed the permissibility of legislation treating individuals differently on the basis of some sort of classification.(30) The general question in those cases was whether the constitution allowed the classification at issue.

      In State (Nicolaou) v. An Bord Uctitala, a natural father brought suit under the Adoption Act of 1952 (Adoption Act) alleging that it violated the Article 40.1 guarantee of equality under the law.(31) The father argued that the statute discriminated against him because it allowed only the mother to be heard in adoption cases involving illegitimate children.(32) Interpreting the second sentence of Article 40.1, the court held that the Adoption Act did not violate the equality principle.(33) The court stated that a natural father, in an "out of wedlock" context, differed in social function and moral capacity from individuals who had hearing rights under the Adoption Act. This difference in social function and moral capacity justified the difference in treatment.(34)

      Similarly, in O'Brien v. Keogh, Section 49 of the Statute of Limitations was challenged under Article 40.1. The plaintiff argued that the statute discriminated because it treated children in parental custody differently than children who were not in parental custody.(35) The court held that the distinct treatment afforded to children not in parental custody was consistent with Article 40.1 because the children at issue were under a "disability" compared to children under parental care.(36)

      In both cases, the court used an equality-based doctrine to uphold differing treatment for individuals in distinct moral, social, or physical predicaments. The relevant question with regard to the Divorce Bill is whether the equality doctrine mandates distinct treatment for those who are in such predicaments. De Valera's comments surrounding Nicolaou, O'Brien, and the drafting of 40.1(37) all seem to answer this question in the affirmative.

      Irish legal scholars have interpreted de Valera's statements surrounding the drafting of Article 40.1 as requiring distinct treatment of individuals of different capacity or social function.(38) The court in Nicolaou supported this analysis when it interpreted Article 40.1 as follows:

      Section 1 of Article 40 is not to be read as a

      guarantee or undertaking that all citizens shall be

      treated by the law as equal for all purposes ... [.

      I]nequality may or must result from ... some

      deficiency or from some special need and it is clear

      that the Article does not either envisage or

      guarantee equal measure in all things to all

      citizens. To do so regardless of the factors

      mentioned would be inequality.(39)

      The court reiterated this interpretation in O'Brien, quoting the passage above in its entirety.(40) From these sources, it appears that the Irish Constitution embodies the notion that equality before the law requires distinct treatment of individuals in different situations by reason of capacity or social function.(41)

   2. The Traditional Equality Doctrine and the Divorce Bill in the Context of Domestic Abuse

      Under the Divorce Bill, battered spouses seeking divorce are subject to the same waiting period(42) and mediation possibilities(43) as spouses who are not abuse victims. Arguably, this differential conflicts with the apparent constitutional ideal that differences in individual capacity may mandate distinct treatment under the law.(44)

      Battered women often have different physical and mental capacities than women who have not been abused.(45) These differences make battered women particularly vulnerable in divorce contexts where long waiting periods and mediation are part of the divorce regime. The Divorce Bill, however, treats all spouses seeking divorce as a class subject to the same treatment. This equality of treatment includes a minimum four-year delay before a grant of divorce as well as provisions providing for...