Breda O’Brien: Making divorce easier will bring little benefit for children

The law is a teacher. It embodies what society considers to be worth both validating and punishing.

During the last divorce referendum, we were told that it was imperative to introduce a right to remarry.

It was claimed that here was a great pent-up flood of people trapped in bad marriages who desperately needed the right to have a legal second marriage.

And yet, we have the lowest rate of second marriage in Europe: in 2011, only 6-7 per cent of marriages took place where at least one of the partners had previously been married. We were also told that divorce would reduce the numbers of people cohabiting, and of births outside marriage.

The opposite is true and, just like the allegedly vast numbers clamouring for the right to remarry, this claim turned out to have been a mirage.

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Sociologist Tony Fahey points out that, in the absence of divorce, a vast number of provisions grew up to manage exit from marriage (such as legal separation, and provisions for custody, maintenance and access). This meant divorce was only important to those who had major financial assets, or an urgent desire to remarry. The statistics show that very few people fell into that category.

Yet despite that, since the institution of relatively restrictive divorce laws that demand four years of separation, there has been an ongoing campaign to make the process easier. But as Fahey points out, where two-stage divorce was introduced elsewhere in Europe, divorce rates remained low. Two-stage divorce involves a period of separation before divorce proceedings can be instituted.

European trends

Portugal

,

Spain

,

Italy

and

Greece

introduced two-stage divorce, and did not have the same dramatic increase that happened in other European countries. When Portugal simplified the process, rates began to climb, and now are more or less the same as in any central or northern European country.

Spain’s experience is even more striking. The Zapatero government introduced a one-stage “express” divorce law. The incidence of divorce jumped from 51,000 in 2004 to 127,000 in 2007, and eventually levelled off at roughly double the 2004 rate.

Although Fahey does not draw definitive conclusions, I think it is fair to conclude that legislation, and more particularly the form of the legislation, influences divorce rates.

It’s unsurprising. The law is a teacher, because it embodies what society considers to be worth both validating and punishing. In the past, we maintained the status of marriage by social disapproval of living together and of extra-marital childbearing.

Mother and child distress

The latter led to a lot of distress for mothers and children who were labelled unfairly, as if any child born outside of marriage were doomed to have a miserable life. That is patently nonsense.

No one secretly hopes while still at their wedding reception that they will get the chance hold a second big bash to celebrate the divorce. Divorce and separation hurt, and it is in everyone’s interests if they are rare.

However, while most people still hope to have a happy family life, the Government runs scared from any support for traditional marriage, while falling over backwards to facilitate new forms of union.

The prime example was the cuts to funding for Accord last May, which saw its budget for marriage preparation slashed by Tusla.

It is all very well to speak of Ireland’s low divorce rate but it doesn’t take human misery into account.

We won’t improve divorce statistics by introducing easier divorce. But we might if we stop seeing marriage as a private romantic arrangement between two people and instead see it as part of a vital web influenced by social, economic and legislative policies – for better, or for worse.