The moral divide between the Roman Catholic Church and civil law

national | rights, freedoms and repression | press release Thursday October 19, 2006 14:33 by Harry Rea - The National Mens Council of Ireland

Email as sent to Political Representatives and others - Oct 19th 2006

In May of this year a father of four was jailed for two weeks for contempt of orders made in family law proceedings brought by his wife in the Circuit Court. His habeas corpus application was successful after Justice Smith in the High Court commented that the manner in which he was jailed contained "worrying features". He was freed on condition that he initiate Judicial Review proceedings to resolve the important issues raised.

The husband had argued that the court had failed to show jurisdiction over his Roman Catholic Marriage, that the matter raised constitutional issues as to whether a marriage can at the one time be soluble and indissoluble and on that basis declined to appear before the Circuit Court.

The unhappy and unsatisfactory apparent dismissing of the Judicial Review in the High Court last week whilst the father was absent because of illness leaves these important issues still to be resolved and this essay is an attempt to analyse the underlying difficulties that this case has unearthed and why it might suit the legal system to have this matter swept back under the carpet.

The essential features of the case are:

1. Does the state have authority to regulate a Marriage consecrated under the rites and ceremonies of the Roman Catholic Church? It is accepted that they can regulate the civil aspects of it after some form of a Decree has been awarded?

2. Which code has authority over Roman Catholics where the civil law fails to protect the innocent party and acts immorally but the Canon law still acts morally?

3. Should the husband in the circumstances be forced to pay the costs?

4. How should one manage the conflict between following ones religious convictions and participating in civil society were the civil law offends the moral teachings of the Church.

The Husband approached the National Mens Council of Ireland and sought assistance from our Legal/Research Resource and Self-help group set up to support and promote Marriage as the necessary unit group of a free and civilised society. It is on this basis that we assist this father and many other husbands and wives who want to protect their Marriages. We take care not to get involved in anyone's private family life but to support by providing a rational look at the underlying legal and moral principles.

There has always existed at any time in history codes of law under separate authorities. It is accepted that the major churches have developed such codes, to assist and direct their congregations, which derive their authority from the teachings of the church and ultimately from the Gospels.

The Roman Catholic Church through its teachings have helped form the basis of Irish society and its founding Christian values are enshrined as natural law principles in the Constitution where they protect the people from unwarranted secular interference.

Courts of both civil and Canon disciplines exist to vindicate the rights of their people and they both, in the past, sought to protect the innocent spouse and children in a Family and so defend the institution of marriage from attack.

Thus in Article 41, Bunreacht Na hÉireann proclaims:

"The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack."

For much of the history of this state Roman Catholic Canon Law and civil law have co-existed in harmony due to both being derived from the same Judeo-Christian concepts of morality. In fact because the civil law acted in a way that the church would anyway approve Canon 22 urges the observance of Civil Law for the very good reason that the secular authorities are better set up to deal practically with such matters and this leaves the church free to attend to more spiritual affairs.

Canon 22 allows for non-observance of the civil code only where this happy confluence of codes departs and the civil law acts contrary to the Divine or moral law. That departure was initiated in 1988 when a cabal of self-professed feminists, both men and women led by Senator Mary Robinson, intent on furthering their ideology to eradicate Marriage, set in motion the conditions they hoped would lead to the eventual abolition of the institution of Marriage and the privacy and protection from state interference that it provided.

The tactics they employed then have continued unabated to this day. Their ploy was to embarrass and shame the predominantly male members of the houses of the Oireachtas, with misrepresentations of the facts, into responding "chivalrously" to the feminist demands. Their focus of attack was on the law that provided a remedy for deserted spouses, the law of Restitution of Conjugal Rights. Although this law was rarely utilised in the previous two hundred years, its mere existence acted to restrain a spouse from deserting as they knew, by it being invoked, that they could be required by a court of law to return home or be legally declared a deserter and lose all claim to the marital assets and any inheritance.

One can see that this fact was hidden from the TDs and Senators by reviewing the absurd emotive language used in the debate:

"If we grant the restoration of conjugal rights against the will of one partner we are talking about rape or a licence to rape." "In the context of our law where it is still legally right and possible for the male to rape the woman in marriage this action has a degree of sinister proportion to it ... rape, forced sexual acts could be imposed on her ... and it is only right and proper that such action be abolished forthwith this morning."

Once that protection for a deserted spouse was removed, lawyers, who dominated the Oireachtas, then and now, were given free rein to introduce new grounds for seeking a decree of separation under the Judicial Separation and Family Law Reform Act, 1989 which, it was accepted by the Supreme Court, permitted a deserter or adulterer to benefit at the expense of the innocent party.

These are the 'dreaded' 2(1)d; 2(1)e and especially the 2(1)f grounds where apparently one of the parties is permitted to claim unilaterally that the marriage has ceased to exist! The grounds where the spouse could claim they had been the victim of desertion, adultery or cruelty still existed so these new grounds were obviously designed for spouses who didn't qualify for genuine grounds!

However the Supreme Court judges were reluctant to strike down the Act as being unconstitutional as they considered there existed provisions in Part 2 of the Act which gave judges sufficient discretion to safeguard against this happening.

A year later in 1995 the Oireachtas inexplicably repealed the whole of Part 2 and never replaced the safeguards. Since that day the law has been allowed to benefit the spouse whose misconduct had caused the breakdown of the marriage.

This has led to Ireland now being a deserters' and adulterers' paradise where they can happily leave their Marriage and still get the marital assets including the children! Is it any wonder the legal profession proudly claim that family law is their growth sector!

Thus one of the fundamental maxims of law had been broken which says "the law can not allow a transgressor to benefit from their own transgression"

Not only does the Act now fail this test of being considered proper law, it is being implemented unconstitutionally and lacks both a complete and moral jurisdiction, as it no longer protects the innocent.

The state no longer protects Marriage. It assists in its destruction.

Thus the civil law and Canon law are in opposition and it was on this basis that there was a need to hear the Judicial Review initiated by the Wexford husband to have the issue as to whether a civil code, which is inherently immoral, can supersede the moral Canon law?

In the matter of whether the state has authority to regulate a Roman Catholic Marriage the issues definitely require an airing as it appears from the evidence that they do not.

The prospective husband and wife make a Covenant of Marriage with God under the rites and ceremonies of the Roman Catholic Church and declare that no man can cast it asunder.

The history of this state shows that the Marriage Laws apply to all other forms of Marriage - Registry Office, Church of Ireland, Methodist, Baptist, Jewish, Muslim etc but there has never been any requirement for Roman Catholics to also take part in a civil marriage ceremony.

The civil authorities accept that a marriage properly conducted by the Roman Catholic Church is valid and merely create a register of the details for administration purposes. The Civil Registration Act of 2004 is an attempt by the state to encroach on Catholic Marriages but that understandably appears to be running into problems of implementation as it seeks to regulate whom within the church can solemnise a marriage and how the Roman Catholic Church conducts its own ceremonies.

From this it is clear that the civil law is entitled to deal only with the civil aspects of a marriage. This means that they can assist in granting reliefs to a spouse where the conferring authority has declared one of the spouses to be eligible to live separately.

For Roman Catholics that authority remains within the church despite the apparent judgement made in the High Court last week where it was reported, "the State rejected the claims that neither the courts nor Oireachtas could regulate Roman Catholic marriages"

This is plainly not true; the state can not separate or divorce a Roman Catholic. That still can only be done by the church and only for very serious reasons.

As long as following one's conscience does not offend public morality the state must respect the right of a Roman Catholic to the practice of their religion.

Bunreacht Na hÉireann ARTICLE 44

1 The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2 1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

If the Court Reporter's account of the hearing that took place last week in the High Court is accurate, it also requires an answer as to how the state was allowed to argue against leave for a third time in this case as the state solicitor had already argued unsuccessfully against the granting of leave on two occasions. It seems extraordinary that a judge could claim that there is no arguable case when the issues patently remain unresolved.

The granting of leave for Judicial Review simply requires that the judge believes that there exists an arguable case to be discussed. This was achieved to the satisfaction of three High Court Judges. To subsequently oppose leave the man's wife had to successfully argue that the three High Court judges had got it all wrong. It is hard to accept that she did.

This threshold of permission for leave is purposely set low to allow the hearing of bona fide criticisms of the current system because the result is to bring about improvements to the administration of justice.

In this way the Judicial Review process acts in the public's interest in supervising the courts. This then beggars the question as to costs. If the process benefits the public interest why has the judge awarded costs against the husband in this case and why doesn't the state pay the costs?

The National Mens Council of Ireland has already assisted a husband in winning his Judicial Review where the High Court found that the District Court were applying the law in a flawed manner. The result of this husband's action can only act to prevent further miscarriages of justice, yet even here the state refuses to pay the husband's costs.

One can only presume from the state's behaviour that it wants to scare off any prospective Judicial Reviews, which would improve the family court system and return it to confluence with the moral Canon law. However since Ireland ratified the United Nations Convention on the Rights of the Child in 1991 its claim to jurisdiction over marriages would be governed by Article 9 of the Convention,

"States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child."

Thus the state's jurisdiction must be subject to Judicial Review and the costs issue must be resolved immediately.

The question of costs is central to the availability of Judicial Review to a parent where they believe the court has acted contrary to the law. Most parents are not at liberty to squander the marital assets that properly belong to the family unit for the benefit of the children and their posterity.

Parents need to know that by righting the wrong that exists in the administration of the law they will not end up paying expensive lawyers on all sides and losing the family home even where they are found to have been right and performed a public service.

The National Mens Council of Ireland believe that Judicial Review performs a welcome and necessary function in working for the Common Good and contend that the costs should be borne by the public purse. The leave stage should act to eliminate any frivolous or vexatious cases.

In conclusion we believe that no purpose has been served by sweeping aside the prospective Judicial Review and ignoring the issues it raised. The husband is considering his options, which include taking the case to the Supreme Court and to the Vatican so that clarity will actually be achieved.

The grave danger is that until these matters are properly attended to this husband will likely be imprisoned again in perpetuity as yet another Catholic martyr simply for following his religious convictions.

Roger Eldridge, Chairman. National Men's Council of Ireland, Knockvicar, Boyle, Co. Roscommon www.family-men.com Tel: 00 353 (0) 71-9667138 Email: familymen@eircom.net

NB
We would like to advise you that the National Mens Council of Ireland is a voluntary organisation

We send you this vital information because it concerns Marriage, which is established as the cornerstone of society. We work to research and promote all that is right, decent and proper in maintaining the vocation of Marriage as an essential component to ensure stability in our everyday lives. We would much prefer to be financially able to promote our support of Marriage in an effective way against the hugely financed organisation that denounces Marriage as opposed to what is enshrined in our Constitution and is part of who we are as a people. However, we are not funded by any state agency and rest assured, not from lack of trying.

Because of this lack of funds we are forced to communicate with you by email, even though our experience dictates that vast quantities of our hard work, put into report fashion, is either totally ignored or dealt with by a standard receipt of delivery.

We ask that you would offer us the courtesy of a written reply as the matters discussed herein are of such absolute necessity for the information of our citizens and the future of our existence as a stable society into the future.

We would also value your opinion on how you would rate the unique service we provide and ask if you could assist us by advising on how we might secure financial support to ensure our continued existence.