IT HAS TAKEN a long time but civil divorce will become, a reality in this State some time next year, more than a decade after the first attempts to see it introduced.
According to the Minister for Equality and Law Reform, Mr Taylor, the first divorces, under Irish law should be decreed some time in 1998.
It has been a long wait for those, like members of the Divorce Action Group, who have campaigned for constitutional change to allow the right to legally end a marriage and marry again.
The first attempt to change the Constitution came in 1986 when the Fine Gael led, coalition introduced a proposal to amend the Article prohibiting divorce. The Divorce Action Group was appalled at the timing as it felt unprepared but supported the proposal.
The Anti Divorce Campaign was founded in April, 1986, to oppose the proposal. It successfully highlighted the many flaws in the Government proposal and the anomalous position in which it would leave divorced spouses with regard to social welfare and other benefits.
Although formally neutral, in practice Fianna Fail opposed the Amendment. Support for divorce fell from 61 per cent at the start of the campaign to 36.5 per cent on the day of the vote on June 26th.
After this defeat, the government set about introducing legislation aimed at plugging the holes in existing marriage legislation highlighted during the campaign. In particular, the social welfare and pension rights of divorced spouses were copper fastened and the abolition of the status of illegitimacy removed any distinction between the rights of the children of first and subsequent unions.
A Fianna Fail government took on board the substance of a Private Members' Bill proposed by Fine Gael's Mr Alan Shatter which streamlined the proceedings for judicial separation.
It allowed for a "no fault" basis as well as on the basis of matrimonial offence. It also allowed for all other matters, such as maintenance, custody, etc. to be regulated at the same time. This forms much of the basis for the proposed divorce legislation.
The Fianna Fail/Labour Programme for Government of 1993 included a proposal to reintroduce a constitutional Amendment oat divorce. It had the support, in principle, of the other parties in the Dail. Therefore, when this government fell and was replaced by the current Coalition, Fianna Fail was obliged to support the same proposal when made by the new alliance.
The polls were showing a massive majority in favour of change. All the major political parties were in favour, as were most media commentators. It was difficult to see how the proposal could be defeated.
Undeterred by the polls, the Anti Divorce Campaign reconstituted itself and prepared a list of 26 arguments against the introduction of divorce. This time it concentrated on the adverse effects of divorce on society as a whole, especially children, the proposition that the availability of divorce increased the rate of marriage breakdown, and the claim that it would lead to greatly increased taxation through an increase in the numbers of divorced wives and their children dependent on social welfare. These arguments struck a chord with many voters.
The Government, and those who had campaigned for a change in the law, expected some such challenge, though they may have underestimated its professionalism and effectiveness. Its response was to allocate £500,000 for an "information" campaign which would it was conceded, be advocating a Yes vote.
This decision was widely castigated, not only by those who opposed the Amendment and cried "Foul" but by many of those who supported, including this newspaper, Fianna Fail, the Progressive Democrats, and many commentators.
For example, the barrister and PD deputy, Mr Michael McDowell, wrote in this newspaper that the decision was probably unconstitutional. Many said it was counter productive.
It was predictable that someone would challenge the expenditure. As she had done before (when she lost), the Green MEP, Ms Patricia McKenna, mounted a legal challenge, and this time won. A week before the vote, the Supreme Court held that the expenditure of public funds seeking a particular outcome to a referendum was unconstitutional. The Government cancelled the remainder of its advertising campaign and was galvanised into action in support of its own proposal.
The polls taken at the time showed that, if anything, the end of the advertising campaign coincided with a halt in the slide of support for divorce. When the votes were counted they, showed the narrowest of majorities in favour.
Mr Des Hanafin then challenged the result on the basis that the unconstitutional expenditure had been an interference in the conduct of the referendum, contrary to the Referendum Act, and had affected the outcome. The High Court found against him on both counts.
Yesterday, the Supreme Court, which had made the original McKenna decision, agreed with Mr Hanafin that the illegal expenditure did indeed constitute interference with the conduct of the referendum. However, all five judges found that he had not proved that this materially affected the outcome of the vote.
Ministers and politicians of all hues will be breathing a sigh of relief today that they do not have to face a new referendum on divorce.