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The introduction highlights the longevity of Ireland’s history of divorce and the minimal historical interest it has attracted to date. The historiography of divorce, all-Ireland analysis and three-century chronology are outlined to contextualise the study. Key concepts are highlighted such as the parliamentary system of divorce, the sexual double standard, the importance of subjectivity as well as the gendered grounds for divorce. Augmenting church interest in the area of marriage and its dissolution as well as the prerequisite suits of criminal conversation and separation required to divorce are similarly considered. Irish divorce is also placed within a UK and imperial framework as well as alongside other strategies deployed to break or dissolve a marital union. The class basis of parliamentary divorce, its rarity as well as Irish citizens’ ability to divorce in either Westminster or the Irish parliament until the passage of the Act of Union in 1800 are also assessed.
Marriage was often afforded high status as a societal stabiliser in newly-established states and the Irish Free State, operative from 1922, was no exception. Unlike Northern Ireland which adopted the parliamentary system of divorce, the Irish Free State provided no mechanism for private bills of divorce to proceed. Although a range of opines existed on divorce provision, the government sought advice from the Irish Catholic hierarchy whose position was steadfast: there should be no mechanism to divorce in the new state. Although there was no popular call for divorce in the new state, as Yeats infamously highlighted, removing the already restrictive parliamentary route from Irish petitioners raised concerns about minority rights in the new state. Subsequent consideration of divorce was often religiously charged but, as in both Westminster and Northern Ireland, this lacked a regimented religious or party divide. Divorce was subsequently banned in the 1937 Irish constitution and divorcees and those seeking divorce law reform were frequently lampooned by the Catholic church as morally suspect.
A case-study approach of two Irish cases in the mid-1850s drew popular attention to the vulnerability of women under the existing gendered law of divorce and the need for its reform. The 1856 divorce of John Talbot of Co. Roscommon and Mary Anne (néeMacCausland) of Co. Londonderry was highly publicised. The case also raised popular criticism of Talbot for conspiring to be rid of his wife, the ecclesiastical courts and parliamentary divorce. The case coincided with a lunacy panic regarding the incarceration of sane women in asylums; however, in the Talbot case, Mary Anne never regained her sanity after being detained and subjected to a physical and likely sexual attack to allow her spouse to divorce her on the grounds of adultery. This divorce attracted considerable legal attention and prompted calls for divorce to be removed from the parliamentary arena. The Westmeaths, even after decades of litigation, never secured a divorce. A re-reading of Emily, Marchioness of Westmeath, is presented here to restore her to the historical narrative as a divorce law reformer and challenge Stone’s earlier sexist portrayal of her as petty, vindictive and obsessed with women’s rights.
In Northern Ireland, the parliamentary system of divorce, replete with the shortcomings of Westminster’s practice, was introduced as a stopgap measure in 1925. Inherent conservatism and the long-lived reluctance to debate an issue with the potential to deepen the religious divide meant that this system survived in Northern Ireland until 1939. This chapter profiles those who divorced in the Northern Ireland parliament in terms of gender, class, region and religion. It also highlights the continued significance of the Westropp precedent which, with Westminster’s passage of the 1923 Matrimonial Causes Act equalising the grounds for divorce in court, allowed divorce bills in the Northern Ireland parliament to be brought by women solely on the previously male preserve of spousal adultery. This also allowed men to bring bills on the grounds of aggravated adultery such as adultery and desertion. Attitudes regarding the moral issues encircling divorce are also explored as a backdrop to the slow process of moving Northern Irish divorce from parliament to court.
Although the sexual double standard endured in the divorce court, parliamentary divorce remained lengthier, costlier and more socially and gender-biased. This chapter examines the profile of Irish parliamentary divorce petitioners and legal critics of the system. Successive attempts to reform Irish divorce provision failed. The personal trials that the lack of legislative uniformity in the UK caused was underscored by the Yelverton case which invoked Scottish, Irish and English law and partially inspired a royal commission to consider extending the jurisdiction of the divorce court in 1861. The commission recommended the unification of divorce provision throughout the UK, but this was never implemented. A further royal commission considered the laws of marriage from 1865 and recommended that divorce laws should be unified throughout the UK, but like the earlier calls for Irish divorce reform, this was never enacted: Ireland remained legislatively stranded. The O’Shea divorce in 1891, citing Irish nationalist leader Parnell as co-respondent, also drew the association between morality and divorce ever tighter and the full force of moral Catholicism was unleashed for the first time.
This chapter explores Irish bills for divorce brought to Westminster from 1701 and to the Irish parliament until the Act of Union in 1800. The moral, reputational and financial impact of divorce is considered from a gendered and class-based perspective and noteworthy cases such as that of Sir John Dillon and Lord Abercorn are examined. The profile of the first Irish divorcees in terms of gender, religion, class and grounds for divorce is determined. Moreover, themes of female agency, illegitimacy, collusion, adultery, false testimony (procured in particular from servants) as well as the association between the availability of divorce as an incentive to adultery which became a recurring theme in both clerical and lay debates are also explored in both jurisdictions. The impact of the Act of Union on the rate and profile of Irish divorces is analysed. In addition, the popular criticism and press reportage of Irish divorce allow the tropes of immorality and moral superiority to be defined and considered.
This chapter explores divorce law reform in Northern Ireland. The Northern Ireland government liaised with Westminster regarding the removal of divorce from parliament’s jurisdiction from 1931; however, Westminster’s passage of Herbert’s bill along with the reform which in 1937 added desertion of three years’ duration; presumption of a spouse’s death; cruelty, although still legislatively undefined; and incurable insanity as sole grounds for divorce revived the debate in regard to equity of divorce provison throughout the UK. Debates concerning the Matrimonial Causes Act (NI) of 1939 are explored alongside the impact of the reform which transferred divorce jurisdiction to the Northern Ireland High Court, reformed the grounds for divorce along English lines and ended the faltering criminal conversation action, replacing it with a statutory action for damages. The subsequent rise in divorce rates in Northern Ireland and later divore law reforms are explored as well as the continuing moral conservatism bolstering cross-party oppoition to ‘easy’ divorce.
Despite the retention of the parliamentary system of divorce for Irish petitioners, divorce law was not static as the changing definition of marital cruelty and precedent established in the divorce court facilitated more Irish parliamentary divorces, especially from female petitioners. The legal definition of marital cruelty evolved from the late 18th century to embrace non-physical violence, the threat of violence and the abuse of children in front of a mother with intent to cause distress. These legal changes were indicative of transformative social mores concerning men’s role in marriage and the marital union more generally. The Irish body of case law pertaining to this shifting definition is explored in addition to the parliamentary divorce of Louisa Westropp, the first Irish woman to divorce whose case established legal precedent in allowing grounds for divorce recognised in the divorce court to be applied to parliament. Contemporaneous reforms in custody rights also impacted and therefore, by the early 20th century, female Irish petitioners were in the majority in bringing divorce bills to Westminster.
The successful divorce referendum of 1995 was followed by numerous legal challenges, but much of the debate on the subsequent Family Law (Divorce) Bill of 1996 revealed a country coming to terms with the reality of marriage breakdown. However, any proposition that divorce reform marked the end of the country’s liberalisation was premature: Ireland still had to negotiate a myriad of social issues including abortion. The subsequent Family (Divorce) Law Act of 1996, bar minor and technical amendments, mirrored the draft bill presented to the country prior to the second referendum and the provisions of the act are considered in a comparative perspective. The rate of divorce in the post-reform era is also assessed on gender, religious and regional grounds; there was no flood of applications to divorce as many had predicted in the anti–divorce campaign. However, by the late 1990s the Irish divorce rate moved towards Western European norms. As Irish divorce rates stabilised, they proved that most of the qualms which both delayed divorce law reform and fuelled preoccupations with the ‘common good’ over the needs of the individual were inexorably flawed.
Those of Irish domicile or lacking a permanent home in England or Wales were barred from the divorce court, but parliamentary divorce’s noxious reputation encouraged some Irish petitioners to develop means to circumvent its expense and publicity. Various strategies such as renting a house and paying rates in England were deployed to access the divorce court. This chapter samples Irish petitioners who divorced in court both legally and surreptitiously. A covert court divorce could invalidate second marriages, bastardise issue and contest marriage settlements. The late-nineteenth-century court-based divorces of domiciled Irishmen Colonel Sinclair and Colonel Malone were the most widely publicised of these cases. The legitimacy of their divorces was questioned, and problems arose regarding marriage settlements. The court was therefore increasingly rigorous about testing domicile; a rule that all divorce court petitioners would have to swear English domicile and falsification would bar the proceedings was introduced. However, although domicile was more stringently tested, Irish cases were presented to the divorce court with an increased regularity in the early twentieth century.
The conclusion highlights the shared moral terrain between the majority of faiths on the island of Ireland which pertained throughout much of the history of Irish divorce. Despite the lack of legislative progress pertaining to Irish divorce from the mid-nineteenth century, the grounds for Irish divorce were not inert. Attitudinal changes towards marriage, marital cruelty, husbands’ superiority, wifely endurance and a reassessment of the role of church and state in individual lives collectively led to divorce reform. However, divorce was never easy and its cost was rarely solely financial. With mooted divorce law reform in both the UK and the Republic of Ireland in 2019, the controversy of divorce, so evident throughout its long history, may re-emerge. Yet, only divorce affords the means for a permanent release from the bonds of marriage and a subsequent union, options which were too long denied to many of Ireland’s citizens.
The period from 1969 to 1984 saw divorce reform in the majority of Western countries, but Ireland remained in the unique position with no provision for divorce, finding an ally only further afield in Malta. The establishment of the Oireachtas Joint Committee on Marital Breakdown in 1985 was, however, an admission by the state that increasing numbers of marriages ended before the death of a spouse and laid the foundations for the first referendum to remove the constitutional ban on divorce in the following year. Social activism, clerical and political attitudes towards divorce reform as well as the cause of the defeat of the referendum are explored. Despite the referendum defeat, a significant and overdue era of Irish family law reform followed which laid the foundations for a second divorce referendum and ultimately the removal of the constitutional ban in the second divorce referendum of 1995. Keenly and often antagonistically fought, the result was so close that a recount was held. This left Ireland with the challenge of introducing legislation on divorce, an issue long-held as the pinnacle of liberalism where many remained resistant to reform
This chapter explores the rationale for and impact of Ireland’s exclusion from the 1857 Divorce and Matrimonial Causes Act which moved English (and Welsh) divorce from parliament to court. The lack of engagement with this reform was apparent across the religious divides in Ireland which allows the suggestion of Catholic orthodoxy emerging as victorious against a liberal reform to be challenged. The Irish Catholic and Protestant presses opposed the bill more forcibly than any of the churches which evidences that Irish resistance to divorce was not always denominationally bound. However, akin to the Irish church response to divorce reform, the press never encouraged more popular protest. That Ireland was seen as a case apart in regard to divorce reform is highlighted by the government’s encouragement of other areas of the empire to apply the rulings of the 1857 divorce act. In consequence, by 1869 only Irish divorce bills were routinely heard in Westminster which remained averse to introducing divorce reform for Ireland. This inertia continued for decades as successive administrations proved disinclined to extend the 1857 act to Ireland and few called for its application.
Irish divorce reform began in the recognition of foreign divorces which produced convoluted case law from the time of the 1937 Irish constitution. The balance of these rulings pivoted on domicile, the intention to reside in a country permanently, which was challenging to test and still dictated by a husband’s domicile. Reform in foreign divorce and domicile was forthcoming from the 1980s and was part of a broader process of Irish family law reform which reflected changing social mores including those relating to the central position of the Catholic church in the Irish state. Some more liberal Irish priests emerged in the 1960s yet, more effective in prompting a reassessment of the position of the Catholic church was Vatican II, which recognised democracy and liberalism. The level of martial breakdown in independent Ireland was also becoming clearer and harder to ignore. A key recommendation of the New Ireland Forum of the mid-1980s was therefore the separation of church and state but divorce reform still provoked antagonistic and often religiously-charged debate.