W2B-016 Smoking - Divorce-1.txt
Divorced from reality

Two years ago Patricia Reilly was found guilty of bigamy. She wept in a Dublin courtroom as the judge pronounced a nine-month suspended sentence, against which she is appealing. Living in a country where there is a constitutional ban on divorce, she married for a second time while her first husband still lived. Under section 57 of the 1861 Offences Against the Person Act, she thereby committed a felony, punishable by seven years penal servitude or two years imprisonment.

According to the 1991 Labour Force Survey, there are 47,000 separated people in the republic, for most of whom divorce recognised by the state is not an option. The Divorce Action Group claims that many will not admit to being separated - it estimates that 60-70,000 people have parted from their spouses.

Among them is Catherine. A mother of a six- and eight-year-old, three years ago she took out a barring order against her mentally and physically abusive husband, after he hit her across he face.

The first physical assault came when Catherine was five months pregnant with their second child. But the mental torture had, she said, been going on a lot longer - until it reached the stage where "at 12 o'clock at night, when my husband had gone drinking, I 'd be running around with the hoover so that there would not be any crumbs on the floor"." When he did return in the early hours, she was abused for producing dried-up food that had been cooked earlier that evening: "Naturally it would be dry at two in the morning."

With the barring order came custody, maintenance £ 25 a week until he lost his job - and weekly access to the children, supervised by her. She had two deeds of separation drawn up by solicitors, but on neither occasion did he arrive to sign the documents. Her council house is now in her name, although to gain that right she had first to undergo a technical eviction.

This entailed a farcical dance in which a bailiff stepped in, removed a token stick of furniture and stepped out. She returned the furniture indoors and the house was then hers. "Even though I have everything - I have maintenance, I have custody - it can be done finally. It would be a once off."

The recent white paper on marital breakdown envisages a referendum to remove the ban on divorce. But while welcoming the paper, the divorce Action Group does not believe this will happen for another couple of years - beyond the life of this government - as the associated legislation dealing with joint ownership and pension rights must first be passed.

This leaves judicial separation as the only option open to someone like Catherine. It's equivalent, said Mags O'Brien, the DAG chair, to the decree nisi applying in the north: "The only thing that is lacking is the right to remarry."

As Catherine and her husband have been living apart, they would be granted a separation on the grounds of irretrievable breakdown, although she would be dependent on free legal aid to get it. So far this year, under the Judicial Separation and Family Law Act of 1989, 450 certificates for legal separations have been granted around the country - the waiting list is three to six months long.

What irks Catherine, though, is that the husband not being Irish, can return to his country, divorce and remarry while she remains married to him in the republic. "He can do it - why can't I?... I made a mistake, I chose the wrong person. I was in an abusive situation where I was abused mentally and physically. So why should I be punished by not being allowed a second chance?"

There are only two ways of gaining such a reprieve - annulment or foreign divorce. Church annulments are pointless, according to Niall Courtney, secretary of DAG and a solicitor, as remarriage would be bigamy in the eyes of the state. About 20 state annulments are granted each year, on only three grounds: mistaken identity, impotence or non-consummation, or proof that either party had not intended to fulfil the marriage contract (if, for example, one of the parties was homosexual and had no intention of becoming involved in the heterosexual relationship).

The republic, said Mr Courtney, had "the most advanced and most highly developed nullity laws throughout the western world, because we do not have divorce. So instead we have these very good jesuitical arguments and theories."

But procuring an annulment was expensive, he said, as psychiatric reports and tests were required and, if contested, if could cost £ 14,000 and take three to four years. Even if granted, it was not satisfactory if there were children involved, as they were rendered illegitimate when the marriage sank into the never-existed category.

The alternative is to seek a foreign divorce - an English postal divorce, if uncontested, costs £ 60. Half of the DAG committee had done this, said Ms O'Brien. While foreign divorces have no legal standing in the republic if the domicile seeks the divorce, they are recognised by the Revenue Commissioners, who treat any second relationship on de facto terms for tax purposes.

"From a legal point of view," said Mr Courtney, "I do not see any point in doing it, but I can understand it from a human point of view." There was finally a psychological end to the first marriage.

The deputy leader of the Labour party, Ruairi Quinn, was divorced in the Dominican Republic - although he went only as far as Morales, an information agency on the North Circular Road in Dublin, to get it. Morales declined to comment as any contact it had had with the press had led to abusive anonymous phone calls. It cost Mr Quinn £ 850, but it allowed him to remarry in New York two years ago in front of some friends and family - although having to go to New York and sort out licences and residences had been, for both partners, "a pain in the ass"."

Not having his marriage recognised in the republic bothers Mr Quinn, and would certainly cause difficulties were he knocked down by "the proverbial 46A bus". Two widows would be competing for his 17-year D&/ail pension, which, he said, would be frozen until a civil court decided the issue: "There would be no contest - it would be wife one." For his estate to be held by his second wife, it would have to be owned exclusively by her, which would entail legal costs and difficulties if she should die before him.

Couples in second relationships still encounter problems, even where the house is jointly owned. Mr Quinn cited the example of a married couple in his Dublin constituency. One of the partners had the first marriage annulled by the Catholic Church, although not by the state. Now in a second marriage recognised by Canon law, they co-owned an £ 80,000 house. But, should one die, the other was only entitled to £ 10,800 tax free as he or she was "a person who is a stranger in blood"." Mr Quinn said: "You end up paying £ 15,000 [corporation tax] simply to stay in your own house."

June Tighe was shocked into self-sufficiency when her husband almost died of a kidney disease. Living in a council house with two young children but without any qualification, she overnight felt vulnerable, insecure and dependent - not only on her husband, but, during his illness, on social welfare. At the age of 27, after nine years of being a home-maker, she went to college to study fashion design, returning home in the evenings to cook fish fingers and argue over what she was and was not allowed to do.

"To cope with that," she said, "you would have to be schizophrenic." She left. "There was nobody else involved, he didn't drink, he didn't beat me up - it would have been easier if he did. We just had nothing more in common."

They organised an amicable legal separation, forgoing all succession rights, bestowing them instead upon their children. Even were divorce introduced, Ms Tighe would not remarry as she would not get involved again in the dividing up of property.

Mary Reddy is buying off her council house. At first, the authorities concerned would not allow her to do so. But she convinced them she was better off without her husband, as she could control her £ 109 single parent's allowance for her and her three children.

Ms Reddy had had to put up with other women, alcohol, fractured ribs on Christmas day, a broken nose, scalded skin and near strangulation. "I seem to have had it every which way," she said. A doctor's letter and a barring order protected her for a year. Then she began to panic, thinking her husband would discover he was legally entitled to return - she could only renew her barring order were he to assault her again.

Separated now for three years, she laughed at the concept of the white paper and all its theories: "It is not worth the paper it is written on unless you create a whole free legal aid system." The paper says this will be done when public finances allow.

Not being able to divorce bothered her. She felt it was important "on a personal basis to be legally yourself again"." She had considered a judicial separation but felt it would cost too much in time or money.

Even were foreign divorce an option, it would be futile, as de facto status was not recognised by social welfare. If a single mother begins a second relationship she loses all benefits and depends on her partner's earnings - or, if he is on welfare, on his single allowance.

Such situations, Ms O'Brien said, rendered null and void the argument by the former Fine Gael TD Alice Glenn that divorce would represent a cost to the state. "If people could marry again, they would no longer be claiming deserted wife's allowance. They could regularise their situation," she said.

Meanwhile, Mary Reddy fills in the forms that give her the option of being single, married or widowed, even though most of the people she knows are separated - no longer able to tolerate the lives their grandmothers, mothers and aunts had.
"My whole mess has evolved from a stupid decision to get married and have three children... I 'd love to see that cardinal fella to tell him there are hundreds of people must like me who are not going to become nuns or zombies just because their husbands have left."
