OPPOSITION PARTIES secretly drafted a constitutional amendment that would have led to a referendum removing the constitutional ban on divorce, a full six years before a referendum on a less powerful amendment was finally held.
Papers released into the public domain under the ’30 year rule’ show that unnamed opposition TDs put forward a Bill to the Dáil – under terms of “strict confidentiality” – which proposed the removal of two clauses specifically barring divorce from the original constitution of Ireland.
The proposed amendment – which would have required a public referendum in 1980 – would have removed clauses 41.3.2 and 41.3.3 from the constitution as it then read, removing the prohibition on divorce that had been introduced when the Constitution was first enacted in 1937.
The amendment, if passed, would also have dropped a constitutional ban on people who were legally divorced in other jurisdictions, but whose marriages were still considered valid under Irish law, from entering into a new marriage in Ireland.
The Fianna Fáil cabinet, led by then-Taoiseach Charles Haughey, prepared a collective rebuttal – to be read in a Dáil debate on the Bill by its justice minister Gerry Collins – hoping to block the Bill from proceeding to committee stage.
One handwritten note, however, written by Haughey for Collins’ inclusion, indicated the government’s inner conflict on whether to contest the Bill:
[That] in such a situation there can be very great suffering and emotional distress is readily acknowledged, but it is not accepted that, to legalise divorce wih the statutory right to remarriage, would bring much greater and more widespread suffering and hardship.
The Bill was never publicly published, nor – it would appear – put to committee stage.
Ultimately a referendum to remove the former clause – which would have allowed Ireland to legislate for divorce under certain conditions, but maintained the ban on allowing marriages involving those married elsewhere – was put to the people in 1986 under Garret FitzGerald’s Fine Gael-Labour government.
That referendum was heavily defeated by 63% to 37%, however, and it was not until 1995 that Article 41.3.2 was replaced with the current clause allowing for divorce – a referendum passed by a wafer-thin margin.
The files also show that Haughey received significant volumes of public correspondence commending his public position on safeguarding marriage, which had been underlined on a wide-ranging he had recently given to BBC’s ‘Panorama’.
The National Archives file referenced in this story is 2010/53/70.
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