The Irish family, marital breakdown and the Josie Airey case, c. 1974-1981

Abstract Centring the role of women, particularly Josie Airey, this article outlines the activism and legal process that led to improvements in family law and the provision of civil legal aid for the first time by the Republic of Ireland. In tandem with the gradual liberalisation of Irish family law, the question of the provision of civil legal aid was set alight by the legal proceedings brought against the state by Josie Airey, which went all the way to the European Court of Human Rights in 1973; though a ruling was not issued until 1979. In a country where society, the polity, the Catholic hierarchy and the Constitution demonstrated a deep fealty to the heteronormative model of family within marriage, and where a constitutional ban on divorce remained intact until 1996, this article explores the contextual significance of these developments in Irish society. Part one provides a systematic analysis of the changing legal status of married women from 1964-1976, connecting these changes directly with feminist activism. Part two examines the formation of the Free Legal Advice Campaign (FLAC), the Josie Airey case and the resultant limited system of free legal aid provided by the state from 1980. It is argued that feminist activism and the additional statutory pressure of Ireland’s status as an EEC member state were key factors for reform. Crucially, this research places the outcome of the Josie Airey case in the historical chronology of the expansion of married women’s rights, underscoring its importance in terms of public awareness of the intransigence of the Irish state in this area.

legal barriers such as the marriage bar were removed from 1973 onwards (Foley, 2022).Moreover, women's legal status also rendered them significantly more vulnerable in their own homes.No mechanism for divorce existed in independent Ireland from 1922; additionally, divorce was constitutionally banned in 1937.Domestic violence and marital separation only became widely discussed in public fora as feminist activism gained traction in 1970s Ireland.These discussions were largely centred around the lack of options for married women who wished to gain independence from an abusive partner.One major outcome of these discussions came in 1972 when Nuala Fennell, a founder member of the Irish Women's Liberation Movement, set up AIM (Action, Information, Motivation), to look after the interests of deserted wives.Fennell later went on to establish the first refuge for women experiencing domestic violence in Dublin, leading to the establishment of Irish Women's Aid in 1974.However, within AIM and other women's groups, opinions diverged on divorce (Urquhart, 2020).Because Irish feminists were far from united on the issue in the early 1970s, the story of marital separation and access to legal aid is an important thread with which to track the gradual liberalisation of Irish public thought on this question.
Centring the role of women, particularly Josie Airey, this article outlines the activism and legal process that led to improvements in family law and the provision of civil legal aid for the first time by the Republic of Ireland.In tandem with the gradual liberalisation of Irish family law, the question of the provision of civil legal aid was set alight by the legal proceedings brought against the state by Josie Airey, which went all the way to the European Court of Human Rights in 1973; though a ruling was not issued until 1979.In a country where society, the polity, the Catholic hierarchy and the Constitution demonstrated a deep fealty to the heteronormative model of family within marriage, and where a constitutional ban on divorce remained intact until 1996, this article explores the contextual significance of these developments in Irish society.Part one provides a systematic analysis of the changing legal status of married women from 1964-1976, connecting these changes directly with feminist activism.Part two examines the formation of the Free Legal Advice Campaign (FLAC), the Josie Airey case and the resultant limited system of free legal aid provided by the state from 1980.It is argued that feminist activism and the additional statutory pressure of Ireland's status as an EEC member state were key factors for reform.As Urquhart notes, 'Ireland's membership of the EEC in 1973 provided a wider platform to publicise the inequalities of Irish law' (Urquhart, 2020).However, feminists were long aware of the benefits of international affiliation, as was seen with the creation of the Commission on the Status of Women and subsequent campaigns for reform.Crucially, this research places the outcome of the Josie Airey case in the historical chronology of the expansion of married women's rights, underscoring its importance in terms of public awareness of the intransigence of the Irish state in this area.Drawing on and uniting a selection of archival sources from the state and voluntary groups, as well as legal documents, oral history interviews, memoirs, television and radio clips, and newspaper articles, this article demonstrates that gradual legal reform and the outcome of the Airey case, in addition to the activism by various women's groups preceding it, were indicative of an increasing societal recognition of the problems associated with marital violence, disharmony and breakdown.While married Irish women could not access divorce for almost another twenty years, there was a gradual, circumspect and, overall, inadequate widening of their options within such cases.In 1978, Nuala Fennell wrote before it had even concluded that the Airey case 'could be the wicket gate to Irish divorce.' 2 Thus, the history of divorce should not follow strict parameters, as change was underway long before Irish divorce was legalised in 1996.
The subject of marital breakdown has emerged only of late in the historiography of modern Ireland.In Irish Divorce, Diane Urquhart provides the first comprehensive historical account of legal change, tracing divorce in Ireland from the seventeenth to the twentieth century (Urquhart, 2020).Marital disharmony in Ireland before independence is also given ample treatment in Maria Luddy and Mary O'Dowd's exploration of marriage from 1660-1925 (Luddy & O'Dowd, 2020).In the post-independence period, Deirdre McGowan (2017) has emphasised that an 'association between marriage breakdown, poverty and social disorder would . . .become an essential element of socio-political opposition to divorce' (p.126).While this insight offers explanation for the slow path towards the legalisation of divorce, the emergence of marital breakdown as a public issue in the Republic and the consequent gradual legal reform of family law has yet to be explored in detail.As David Fitzpatrick has noted, 'persistent avoidance of divorce legislation could scarcely have been accomplished without widespread popular abhorrence of the dissolution of marriage' (Fitzpatrick, 1987, p. 173).How did this change?To inform this question, it is necessary to turn towards the history of feminist activism.Cara Diver's work on marital violence (Diver, 2019) has shed light on how feminist activists brought pressure to bear upon the government, who for the first time acknowledged the problem of marital violence and took action against it.As can be seen in this and other works, histories of the family in Ireland have only begun to touch on the more intimate and difficult topic of domestic violence.It is useful, as Lindsey Earner-Byrne does in her exploration of the subject, to consider that 'Linda Gordon's ground-breaking 1989 study of the history of family violence in America has yet to be replicated for Ireland' (Earner-Byrne, 2017, p. 143; Gordon, 2002).On activism, Linda Connolly (2002) and Lorraine Grimes (2022) have both observed the proliferation of voluntary agencies for single mothers and women experiencing marital breakdown in 1970s Ireland, including AIM, the Well Woman Centre, Women's Aid, Cherish (the first Irish self-help organisation for unmarried mothers) and others, illustrating the role of such organisations in social change.While this article focuses on married women's rights and the provision of civil legal aid, it is important to note that historians such as Earner-Byrne (2023), Grimes (2022)  and Maria Luddy (2011) have observed a gradual if conservative expansion of unmarried mothers' rights in the same period.Indeed, this article's focus on the poor provision of civil rights to married women by the state can add context to the illtreatment of unmarried mothers in Ireland.Patriarchy governed all women in this period, if on a hierarchical basis, dictated closely by social class.This research thus provides a class-based analysis of how access to the courts was far from equitable for many, by placing civil legal aid into the mixed economy of welfare navigated by Irish women in the twentieth century.

Irish feminism and the agenda for reform
Ireland's first state-sponsored inquiry into gender inequality, the Commission on the Status of Women (CSW), was initiated by the government after a sustained lobby by an ad hoc committee of women's organisations, including the Irish Housewives Association (IHA) and the Irish Federation of Business and Professional Women's Clubs (BPW).Robust links to international equivalents, dating back to the international suffrage movement, afforded Irish women's groups access to international discourses and policies on equality from the UN and the EEC.It was through this channel that the impetus for the CSW was received by Irish women's groups.The IHA was affiliated to the International Alliance of Women (IAW), originally the International Women's Suffrage Alliance (Rupp, 2007).At the 1967 IAW Congress in London, members were informed that the UN Commission on the Status of Women had issued a directive to women's organisations to ask their affiliates 'to examine the status of women in their own countries and, where necessary, urge their governments to set up a national commission on the status of women' (Tweedy, 1992,  p. 35).Nora Browne of the BPW then informed the IHA that her organisation had received notice of the same directive at their international congress in Copenhagen, and they worked together to establish an ad hoc committee for this purpose in Ireland (Tweedy,  1992).
The ad hoc committee's initial discussion proposed, among many changes, the introduction of 'adequate allowances for the widow and the separated or deserted wife.' 3 In their ground-breaking 1972 report, the CSW made several recommendations on family law, and took submissions from many women's organisations.In the meantime, the Irish Women's Liberation Movement emerged as a more radical, if shorterlived, consciousness-raising group.Their manifesto, written with legal advice from Mary Robinson, drew further attention to the precarious status of Irish women in marriage: A man may desert his wife for as long as he chooses -but return whenever he wishes and automatically resume all his marital and parental rights.A woman immediately forfeits all her rights, including access to the marital home or to the children, if she leaves him. 4ter the Commission completed its work, the Council for the Status of Women was formed as an umbrella group of women's organisations throughout the country.The Women's Representative Committee, a State body, was formed in 1974 to monitor progress towards the implementation of the recommendations of the Commission on the Status of Women and to make submissions on the legislative and administrative reforms which would enable women to participate in all spheres of life on equal terms with men. 5 These organisations, coupled with smaller feminist and legal pressure groups, were pivotal to the agenda for family law reform.
The building momentum of feminist activism meant that family law was more prominently present on the state's agenda as the 1970s progressed.Action, Information and Motivation (AIM), a lobby group 'for women's equality in marriage' was founded by Nuala Fennell, who left the Irish Women's Liberation Movement in 1971 due to myriad disagreements.Reflecting the dynamism and pace of women's activism in this period, she was also a member of the Women's Political Association and the Council for the Status of Women, and was later elected to the Dáil. 6Founding members of AIM (Nuala Fennell, Deirdre McDevitt, Bernadette Quinn, and Anne McAllister) spent a year studying the issues at hand regarding marital breakdown in Ireland.Their primary objectives were for legal reform in the areas of enforceable maintenance in marriage, equal rights to the family home, free legal aid and attachment of earnings (Fennell, 2009).Attachment of earnings is a means of enforcing maintenance payments via deduction at source by an employer before wages are paid.
AIM was successful in drawing public attention to domestic violence and defining it as a social problem; one which had not been directly addressed by the report of the Commission on the Status of Women.Described by Fennell was 'the mouthpiece of thousands of women who are no longer content with the old order of priorities', AIM had a distinctly feminist approach (Fennell, 1974, p. 1).Fennell was inspired by similar movements in Britain; her work led to the establishment of Irish Women's Aid in 1974 (Diver, 2019).In 1974, Fennell published Irish marriage -how are you!which explored the issues of marital breakdown, desertion and domestic violence in Ireland.This was followed by Can You Stay Married?: A Self-Help Guide for Women in 1980.AIM opened Ireland's first Women's Centre in Dublin, which offered practical support and advice for those experiencing marital or relationship breakdown, and also housed a library and a clothing swap shop. 7Other groups, such as the Council for the Status of Women, the Irish Housewives Association, the Association for the Deserted and Alone Parent (ADAPT), Cherish, Irish Women's Aid and FLAC also engaged in an ongoing co-operative campaign alongside AIM on the same issues.Anne O'Connor, a member of AIM, recalled working particularly closely with FLAC and the Coolock Community Law Centre in north Dublin well into the 1990s 'because of the fact that we are giving information on family law, that we have been involved in changing family law.' 8 Many of their shared objectives were subsequently enacted through legal reform.

Married women's rights in 1970s Ireland
Ireland's constitutional ban on divorce, coupled with the deeply Catholic nature of virtually all law and social policy, associated social stigma with marital breakdown for many years.The Irish Constitution emphasised the state's fundamental understanding of the Irish family as built upon marriage, pledging to 'guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.' 9 The legal and societal emphasis on marriage was unsurprising, if exclusionary.In the same period, most public conversations concerning the eventual legalisation of contraception followed the same pattern.The first legislation to lift the ban on birth control, which commenced in 1980, facilitated access on a restricted basis.With the de facto intent to restrict access to married couples, contraception was made available by prescription only, for 'the purpose, bona fide, of family planning or for adequate medical reasons and in appropriate circumstances.' 10 Notwithstanding the constitutional ban on divorce, the Irish High Court had the jurisdiction to grant a decree of divorce a mensa et thoro. 11Such a method of separation was, in reality, a legal decree which did not entitle either party to remarry, and merely relieved the petitioner from the obligation to cohabit with the respondent.This kind of separation could be obtained only with proof of 'cruelty, adultery or unnatural practices by one of the spouses.' 12 It was an uncommon and expensive pursuit, granted just 27 times between 1946 and 1970 (Shatter, 1977).Judicial separations became more common in the 1970s, however, with 43 granted between 1970 and mid-1976, signalling at least an increased demand for a legal solution to marriage breakdown. 13The increase may also be attributed to the growth of voluntary free civil legal aid in the same period, which is discussed later in this article.
An increasing agenda for legal reform of family law can be dated to the 1960s, beginning with the Guardianship of Infants Act, 1964.This legislation marked the beginning of a series of measures in family law and social welfare, gradually demonstrating 'the state's acknowledgement that the actuality of family life could fall short of the idealisation of the family' (Earner-Byrne & Urquhart, 2017).The Act removed 'the legal fiction that a father is the natural guardian of the children of a marriage and had the right to appoint guardians of the children over and above the natural right of a mother.' 14 The Minister for Justice, Charles Haughey, was aware of this unequal status: The mother is still in a far inferior position to that of the father with respect to guardianship and custody . . .she is not legal guardian during their joint lives and so has no entitlement to the custody of the children; she has not the same rights as the father to appoint a testamentary guardian.A guardian appointed by her cannot act jointly with the father after her death but can act only after the death of both parents.She can provisionally nominate a fit person and this person can be confirmed in his appointment by the court to act as joint guardian with the father, but only where the latter is unfit to be sole guardian. 15ction 18 of the Guardianship of Infants Act stated that in cases of divorce a mensa et thoro, 'the court may thereby declare the parent by reason of whose misconduct the decree is made to be a person unfit to have the custody of the children (if any) of the marriage.' 16Additionally, section 11 (3) of the Guardianship of Infants Act was progressive in that it enabled the court to hear an application for custody from a parent while both parents were still living together.Prior to this, a mother could not seek custody of her children without first leaving the family home. 17The custody order ceased to have effect altogether if the parents lived together for three months or longer after it was made. 18his act was passed as part of a wider programme of legal reform announced in 1962 during Haughey's tenure as Minister for Justice, intended to create new legislation to curtail reliance on old British statutes. 19However, it was also a reform that had long been lobbied for by women's groups, chiefly the Irish Housewives Association.Their 1962 memorandum to the government on law reform proposed 'that parents should have equal rights in the guardianship of children, and to appoint guardians with the surviving spouse'. 20hilst even the Irish Women's Liberation Movement did not opt to campaign publicly for the legalisation for divorce in its 1971 manifesto, the obvious discrepancy between the morality of the constitution and the lived reality of many who had no recourse from marriage was increasingly discussed and acknowledged in public fora during the 1970s.The gradual opening up of this discussion occurred chiefly through feminist activism and an increasing conversation in the Irish media.Caitriona Clear's study of Irish women's magazines demonstrates that in problem pages and letters to the editor, 'there were no letters at all in the 1960s about the lack of divorce legislation and few, if any, about marriage breakdown' (Clear, 2016, p. 77).Diarmaid Ferriter has noted that Dorine Rohan's sociological study, Marriage Irish Style (1969) 'gave a frank overview of the internal dynamics of Irish marriage', from contraceptive practices to domestic violence (Ferriter,  2009, p. 336).Such problems were given increasing attention in the Irish press from the 1970s.In this period, journalist Michael Viney wrote extensively in the Irish Times into the subject, as well as other related social problems such as alcoholism, mental illness and 'illegitimacy'. 21His series 'The Broken Marriage', later republished as a pamphlet, began with an article tracing 'the slow breakdown of the traditional Irish belief that an unhappy marriage must be suffered at all costs.'Marital breakdown and separation was becoming increasingly visible and was, Viney reported, 'making new demands on law and welfare.' Nuala Fennell and many of her colleagues in the IWLM used the press to draw attention to family violence and related shortcomings in Irish law in the women's pages of broadsheet newspapers.This type of feminist journalism afforded new space to the voice of women affected.One article by Fennell explored the story of a woman so intimidated by her husband that she recounted: 'I know he'll be drunk every night he comes in, so I take two sleeping pills and sleep in the bath.I can lock myself in there.' 22 Fennell's journalism also asked crucial questions facing those who took court cases, such as 'Why do proven wife beaters get bail?' and 'Why is there no legal representation for the poor in such cases?' 23 Prior to the legalisation of divorce in the Republic of Ireland in 1996, the best that disbanded couples could hope for was a judicial separation -the aforementioned divorce a mensa et thoro, which left individuals with no right to remarry.Many couples simply ceased to live together, albeit not always by consensus.As IWLM member Rosita Sweetman highlighted in her 1979 study of Irish relationships and sexuality: Divorce 'Irish-style', as it's been dubbed, is the commonest mode of separation; husband leaves wife and doesn't return; wife unable to get a divorce, a settlement on a property, remarriage, or money, applies to the State for a Deserted Wives Allowance . . .and must spend the rest of her life as a legal nonentity (Sweetman, 1979, p. 100) Deserted Wife's Allowance was first introduced under section 22 of the Social Welfare Act, 1970, but on a limited and stringent basis. 24Prior to this allowance, most deserted wives claimed Home Assistance, a relief payment made through local authorities. 25It was difficult to quantify figures on desertion; in the first year after its introduction, the allowance was paid to 1,300 women. 26However, in the following year, the IWLM pointed out that: at the last Census (1966) some 11,300 men were absent from home.The lines blur here because some of these men would be either migratory or permanent workers in England.These men have not technically abandoned their wives although it very often amounts to the same thing: it is up to the man to send his wife money and if he does not, very little can be done, since Irish court orders cannot be implemented in Britain. 27ish deserting husbands with children were routinely traced by inspectors of the National Society for the Prevention of Cruelty to Children (NSPCC) in Britain for decades; in 1971 it was reported the London office of the NSPCC alone was dealing with over 500 enquiries a year from deserted Irish wives.28 Kathleen O'Higgins highlighted in 1974 that on Census night, 1971, there were 8,148 more married women than men in the State, and estimated that 'in all probability the number of deserted wives is somewhere between three and eight thousand.'29 Furthermore, bigamy was not infrequent, with a low prosecution rate.By 1984, an estimated 7,000 women were in receipt of deserted wife's allowance (Urquhart, 2020, p. 212).
There was also severe difficulty for some deserted wives who could not collect their children's allowance if it had not been signed over by their husband until this requirement changed in 1974. 30This change was lobbied for by several women's groups, including the Irish Housewives Association and AIM. 31 Another sore point of discrimination for deserted wives was that, despite the illegality of divorce in Ireland, through one stunning anomaly the Department of Social Welfare in Dublin did, in fact, recognise British divorce in certain circumstances.It was highlighted by the IWLM in 1972 that the Department disqualified some deserted wives from their allowance because they produced evidence of their husband's British divorce to prove desertion: 'Our civil service apparently can be hypocritical enough to recognise divorce to save the Exchequer £5+ p.w., a deserted wives allowance.' 32This discrepant recognition of foreign divorce was made possible by the domicile of dependency, which meant that a wife's domicile was automatically the same as her husband's, regardless of her physical location.This concept remained in Irish legislation until reform, led by Nuala Fennell as Minister of State for Women's Affairs and Family Law, was implemented in 1986. 33mong many Irish feminists, AIM repeatedly used Ireland's membership of the EEC as a tool to support their arguments.This approach was visible with regard to AIM's campaign for maintenance orders made in Ireland to be made enforceable abroad.In July 1973 AIM highlighted in a letter to the Irish Times that the state had no reciprocal arrangement with other countries 'in tracing absconding husbands and enforcing maintenance from them for their wives and children at home.' 34 The same point was made repeatedly by AIM in meetings with the Minister for Justice.A reciprocal arrangement of this nature (known as the Judgements Convention) was reached between the original six EEC member states in February 1973. 35Neither Britain nor Ireland were party to this agreement yet.
However, negotiations were already underway for a reciprocal arrangement for the enforcement of maintenance payments between Britain and Ireland before AIM had formed.Talks first took place between the Irish and British departments of justice in the Home Office in 1971. 36Talks were likely prompted by preparations on the British side for the Maintenance Orders (Reciprocal Enforcement) Act, 1972, which enabled any country outside the United Kingdom to be designated as a 'reciprocating country' by legislative order.Eventually, the Maintenance Orders Act, 1974 allowed for the reciprocal recognition and reinforcement of maintenance orders between the Republic and Britain. 37However, the new legislation was of no use to a deserted wife who was unable to trace her husband in Britain.Moreover, it took over a decade for Ireland to become party to a wider European agreement with eight other member states regarding maintenance payments.The Judgements Convention became legal in Ireland via the Jurisdiction of Courts and Enforcement of Judgements Act, 1988.
The case was made by many activists, chiefly in AIM, that a greater level of protection was necessary for deserted wives whose husbands remained in the State; and for those who experienced domestic violence. 38In 1974, the (all-male) Committee on Court Practice and Procedure (CCPP), comprised broadly of legal professionals tasked with research regarding proposals for legal change, were requested by the Minister for Justice, Patrick Cooney, to examine and prepare a report with recommendations on 'the desertion of wives and children, the attachment of wages [to maintenance payments] and the desirability of establishing special family tribunals.' 39AIM and the ICA were among groups who made written submissions to the CCPP; Deirdre McDevitt and Bernadette Quinn of AIM also met with the Committee.The CCPP reported in 1974 that there was: . . .a real need for a radical change in the legal provisions relating to the provision of maintenance for deserted spouses and families.We are also of the opinion that failure to maintain, instead of desertion, should be the basis of the new jurisdiction.
The CCCP recommended that maintenance orders should be issued by courts on the basis of 'family default', i.e. abandonment and failure to maintain, physical or mental ill treatment causing the victim to leave the home, and failure to maintain a reasonable standard of living with regards to the means and earnings of the providing spouse.
Despite the wide consensus regarding the need for reform in the area of family law, delays ensued.In November 1974, a joint letter from women's groups and other bodies concerned with marital breakdown was delivered to the Taoiseach, all political party leaders and the Archbishop of Dublin.Such groups included the Council for the Status of Women, AIM, ADAPT, Cherish, Irish Women's Aid and the Free Legal Advice Campaign (FLAC).Demonstrating the ongoing co-operative campaigning of women's groups in particular, the joint letter demanded the introduction of barring orders, an increase in the financial limit of maintenance orders granted by district courts, and the implementation of an attachment of earnings clause to such orders.Ten months prior, at an AIM seminar in January 1974, the Minister for Justice, Patrick Cooney had stated his intention that the CCPP's recommendations would be implemented as a matter of urgency. 40In July 1975, the Council for the Status of Women again wrote to the Department of Justice protesting at the lack of reform in the area of family law, querying why the reforms recommended by the CCPP had not yet been implemented. 41he Family Law (Maintenance of Spouses and Children) Act, 1976 set out to amend the law relating to family maintenance, to introduce a system of attachment of the earnings of maintenance debtors, to introduce barring orders, and to create joint ownership between spouses in a household allowance given by one spouse to the other (or in any interest in property acquired out of such allowance). 42An explanatory memorandum noted that 'a number of the provisions in the bill are based on recommendations made by the Commission on the Status of Women in its report.' 43Section 5 permitted spouses to apply to one another for maintenance; an amendment suggested by both the Committee on Court Practice and Procedure and the Commission on the Status of Women.In section 7, families were further protected by the introduction of 'interim' maintenance orders, to be paid prior to a formal hearing on permanent maintenance orders.Section 23 raised the jurisdiction of the district courts to make orders in maintenance cases for sums up to £50 per week for a spouse and £15 per week for each child.This was a notable increase on what was previously set out under the Social Welfare Act, 1970.The introduction of barring orders for the first time in Ireland via section 22 (as recommended by the CCPP), also demonstrated the influence of groups such as AIM, which helped to facilitate a more public discussion and acknowledgement of domestic violence. 44The act also provided in section 21 that money saved from a housekeeping allowance or any property purchased from the allowance was to belong in equal shares to the spouses. 45This was an element that had been favoured by both the CCPP and the Commission on the Status of Women.
In 1978 the Women's Representative Committee outlined that, while progress had been made in the field of family law, there were nevertheless some remaining problems.The Committee was critical of the fact that barring orders issued under the Family Law (Maintenance of Spouses and Children) Act, 1976 had to be renewed after three months.Additionally, as the law stood, barring orders did little to protect a spouse from the immediate threat of violence: . . .there is no effective method of preventing a violent spouse from breaking a 'barring order' as the law does not give the Gardaí the power to arrest a spouse without a warrant.The only recourse then open to an aggrieved party whose violent spouse returns to the family home is to take out a summons against him or her for breach of the order.The proceedings may take a long time to bring to court and consequently provides no immediate effective remedy . . . . 46ndsey Earner-Byrne has demonstrated that the reality of domestic violence was for many years 'subsumed into a culture of silence and denial that sought to protect the "integrity" of the family at the expense of its individual members' (Earner-Byrne, 2017, p. 143).Even at the introduction of progressive legislation, such attitudes remained visible despite glaring realities.When this legislation was discussed in the Dáil, the Minister for Justice, Patrick Cooney, was supportive of the time limit attached to barring orders.His defence reflected many traditional and highly gendered anxieties about property and the Irish family, and undermined the serious and systemic nature of many domestic abuse cases: It is a serious thing to make an order excluding a man from his own home and, because it is, the order should have a definite time limit on it.As a result of this proposal, the old adage that a man's home is his castle no longer counts; a man will no longer have complete and undisputed dominion in the home . . .It is a very radical but common-sense change and, because it is a radical change, it is only right that there should be a time limit on it.That is not to say that, at the end of the three months, the husband who has been misbehaving himself can return to the family home.He can return provided normality has been restored and the circumstances which caused the exclusion have disappeared.In any event the order can be renewed. 47survey undertaken by the Coolock Community Law Centre on the implementation of barring orders indicated that out of 40 cases, 70% of barring orders were granted due to violence in the home. 48The WRC also highlighted further issues with the new legislation; it had no provision 'to give a wife a claim to the value of a moiety [a share] of the matrimonial home, unless she has contributed towards the cost of the home or has taken over the mortgage repayments'. 49Later, the Council for the Status of Women drew attention to another shortcoming of the act; the attachment of earnings clause applied only to a defaulting spouse registered with an employer, and not those who were selfemployed. 50hen the Family Home Protection Bill was introduced in the Seanad in the summer of 1976, the Minister for Justice explained that the proposed legislation had two main objectives.Primarily, it was intended to give 'protection to a family against the vindictive disposition of the family home by a spouse.' 51 Secondly, it was also intended to encourage spouses to place the family home in joint ownership by means of the abolition of stamp duty, court fees and registration fees on transactions transferring ownership of the home from one spouse to both spouses jointly. 52The summary effect of the Family Home Protection Act was the provision that prior to the sale of a family home, written consent by both spouses was required. 53This gave married women greater security of their homes, which, until this point, could be sold by a husband without a wife's consent (Healy, 2015).Wylie (2000) has noted that the legislation was the result of the Commission on the Status of Women's report, which drew attention to the problem of protecting a non-owning spouse in the home (p.144).
However, the Family Home Protection Act was regarded as an 'interim measure' by Senator Mary Robinson, because it did not introduce a default system of co-ownership within marriage, which the Commission had recommended. 54Robinson expressed her personal regret that the Department of Justice had not taken 'that important step further to create a concept of co-ownership of matrimonial property.' 55Similarly, in the view of women's organisations affiliated to the Council for the Status of Women, who had long campaigned for property to be held in joint ownership, the legislation did not go far enough.The Women's Political Association emphasised this point in 1979.In a pamphlet entitled 'Guide for Women Voters', it was highlighted that without a default system of joint ownership, married women's labour within the home, and her role in marital partnership, was not sufficiently recognised: Our society values a person by the amount of money they generate and a housewife who generates nothing is valued at next to nothing.No laws were passed to give any security to women in the home until within the last ten years when pressure was put on successive governments by the women's organisations.By the Family Home Protection Act 1976, a man cannot sell the matrimonial home without the consent of his wife.This does not mean that she has any ownership rights in the family home.Thus a woman may work all her life within the home and provide the back-up service for her husband to earn, but she has no ownership rights over the house or household effects that have been bought by him. 56e law as it was enacted in 1976 can, nevertheless, be viewed as another part of the state's piecemeal recognition of marital breakdown.To this end, the act also made it unlawful for a spouse to dispose of household contents such as furniture or other objects which 'would be likely to make it difficult for the applicant spouse or a dependent child of the family to reside in the family home without undue hardship.' 57

Towards civil legal aid
International scholarship on civil legal aid emphasises the necessity of such services in order to facilitate paths towards justice for survivors of domestic violence in particular (Lee & Backes, 2018).In the United States, Earl Johnson (2013) has charted the provision of civil legal aid as entirely dependent on private donors from 1876 to 1964.Subsequently, civil legal aid became part of the War on Poverty from the 1960s as the Office of Economic Opportunity (OEO) legal services programme was implemented, providing federal grants to the numerous voluntary legal aid centres.In Britain, a legal aid scheme was first introduced in 1950, but was confined to the High Court only.The system was extended to the county court in 1956 and did not include advice until 1959.As was the case in Ireland, Britain saw an expansion in voluntary legal aid centres during the 1970s.This phenomenon can be linked to the provision of similar centres in the US, but also may be viewed as a renewed part of a longer tradition of voluntary work on behalf of those in the legal profession (Goriely, 2006).
As Claire Carney (1979) states, the first significant move towards the provision of civil legal aid in Ireland occurred in 1968 when the decision to establish FLAC (Free Legal Advice Centres) was taken at a Legal Education Congress organised by law students at Trinity College, Dublin.In April 1969, FLAC opened its doors in north inner-city Dublin, and four other centres soon followed in the suburbs, as well as Galway and Limerick.Contemporary to this process, a Free Legal Advisory Bureau was opened in Cork by a group of law students.The immediate aim of the FLAC was to organise law students to give free legal advice to those who could not afford it.Ultimately, FLAC aimed to persuade the state to establish a civil legal aid scheme.By May 1978 FLAC had dealt with 23,000 cases, 43% of which were family law cases. 58 keystone of FLAC's achievements was the Coolock Community Law Centre, which was opened in 1975 with the help of a grant from the Department of Justice.The centre was 'to serve as a prototype of the American Neighbourhood Law Centre model that could underpin a Civil Legal Aid Scheme and be rolled out across the country.' 59 In addition to partaking in FLAC and other groups' ongoing campaign for the provision of civil legal aid by the state, the centre provided legal information, advice and representation to locals.60 This service was acutely needed in Coolock, where unemployment sat anywhere between 46 to 65%, and many families experienced isolation and lack of proximity to facilities, having moved 'from the closely-knit communities of the innercity' to new public housing developments built in the area from the early 1970s (Dillon, 1989, pp.17-19).Family law was the most frequent category under which advice was sought by clients, and of these, the most common request was for help or information on securing a legal separation.Information was also commonly sought on housing, social welfare and succession issues.In this sense, the centre can be viewed as part of the growing phenomenon of self-help groups and information centres with a rights-based approach.In Cork, Maureen Black, a member of many women's groups including the National Widows' Association and the Cork Federation of Women's Organisations, set up Ireland's first Citizen's Advice Bureau in 1972.61 The Bureau helped citizens to find their way through the hostile 'administration maze'; it centralised information regarding social welfare and legal entitlements.62 A centre of this type offered a place of recourse and empowerment for many women experiencing marital difficulties.Its physical presence was important in terms of consciousness-raising. Whle divorce remained illegal, the Coolock centre in particular served as a reminder for women of their rights in terms of legal separation.It was a practical, local amenity for help, extending women's agency in moments of crisis.One woman living in Artane in north Dublin, interviewed by Rosita Sweetman in 1979, recalled: 'Last year I left him for a week.We had a row and he said, 'Get out of my house' . . .I marched down to the legal centre.I said, 'I want a separation' (Sweetman, 1979, p. 114).
In 1974, an entirely male Committee on Civil Legal Aid and Advice, also known as the Pringle Committee, was appointed by the Irish government 'to advise on the introduction at an early date of a comprehensive scheme of legal aid advice in civil matters.' 63 They received submissions from numerous women's groups of the era; AIM, ADAPT, ICA, IHA, the Cork Citizens' Advice Bureau and the Women's Representative Committee (WRC).The WRC's submission stated that there was 'an urgent need to have a system of free legal aid and advice available in matters relating to family law.' 64 In its 1977 report, the Pringle Committee recommended that a comprehensive scheme of civil legal aid should be introduced for applicants (subject to a means test), and that an interim system should be implemented as soon as possible to cater specifically for family law cases.However, no action was taken by the government until external pressure was brought to bear on the state from the European Court of Human Rights as a result of Josie Airey's actions.
Johanna 'Josie' Lynch married Timothy Airey in the Church of the Immaculate Conception in Cork city in November 1953, at twenty-one years of age. 65Owing primarily to Timothy's alcoholism and abusive nature, the marriage gradually broke down.In a sworn affidavit made to the European Court of Human Rights, Josie stated: 'during our married life together I was subjected to frequent threats of physical abuse and occasional bouts of actual physical violence.' 66In a society where the uncomfortable details of marital breakdown were 'largely airbrushed from Irish public life' for decades, Josie's repeated public statements of her experience were rare and radical (Earner-Byrne, 2017, p. 146).A segment broadcast on RTÉ, the Irish national television station, in 1975 illustrates how uncommon Josie's first-hand, non-anonymous testimony was in this period.The Seven Days piece featured three women who had availed of Ireland's first women's centre, run by AIM; each woman was filmed from behind to conceal her identity. 67Josie's affidavit and media interviews offer an intimate account of the experience of marital breakdown in a state without divorce, and the consequent tangled web of aid that Josie had to navigate; from solicitors, to social welfare, to maintenance payments, to non-governmental social workers, the Catholic Church and, eventually, the European Court of Human Rights.Her husband Timothy, she recalled, 'struck me on one occasion while I was pregnant with my youngest child, Thomas, and I was forced to seek help and refuge from the local office of the Irish Society for the Prevention of Cruelty to Children (ISPCC)'. 68his occasion marked the beginning of Josie's navigation of the mixed economy of welfare.From the outset, she was determined to seek any and all assistance available to protect herself and her family.Having married in the middle of the century, and having given birth to four children, Josie had fulfilled many of the perceived obligations of female Irish citizenship in 20th century Ireland, where the national ideal of womanhood was tied inevitably to the home, marriage and reproduction.However, this earned her few entitlements in the so-called 'moral economy of social citizenship' (Adams, 2007, p. 56).By virtue of the fact that she was a woman of few means experiencing marital breakdown, Josie was, despite her striking tenacity, left significantly vulnerable with a dearth of effective options.In Ireland's moral hierarchy, Josie, a married woman, sat above her female peers who had so-called 'illegitimate' children, but below widows.Her marriage had failed, and she drew public attention to this fact, which was undoubtedly a subversive act.
Most of Josie's ports of call in her pursuit for aid were dead ends.Josie had contacted solicitors several times from 1965 onwards in an attempt to secure a separation agreement and 'to obtain permanent protection for myself and my children from the physical and mental cruelty we were suffering as a result of the conduct of my husband.' 69 A solicitor drew up a draft separation agreement and attempted to persuade Timothy to sign, but he refused.In 1971 she persuaded Thomas to visit a psychiatrist to seek treatment.However, she stated that 'subsequently my husband resented the fact that he had been examined by the said psychiatrist . . .his violence towards me and intimidation of our four children worsened during the late months of 1971.' 70 On 20 January 1972 Timothy attacked Josie with a bread knife which had a serrated edge, cutting her arm and substantially bruising the rest of her body.Josie recounted: '. ..I had to seek refuge once again in the local office of the ISPCC . . . the Inspector there referred me to a firm of Solicitors.' 71 Timothy was subsequently convicted of assault and fined by the District Justice.It had been Josie's hope that these court proceedings would lead to a full judicial separation, but this was only possible through the High Court.She recounted that after this disappointing outcome, she again approached a solicitor 'in an attempt to secure protection from my husband by having him removed from the family home.' 72 However, at the time barring orders were not obtainable under Irish family law. 73he solicitor referred Josie to a social worker attached to the National Council on Alcoholism (NCA) in Dublin, who referred her to a different firm of solicitors.Founded in 1966, the NCA was a voluntary organisation proposed by Irish psychiatrists who expressed concern with rising admissions of alcoholics to psychiatric hospitals (Mauger, 2023).Notably, Josie recalled that at one of many court hearings she attended, 'the district justice agreed with me that seventy per cent of the men who were standing before him in family law cases have drink problems.' 74Similarly, alcohol was cited as the most frequent contributor to marital breakdown by respondents to Kathleen O'Higgins' 1974 study of marital desertion.Despite her strident efforts and engagement with multiple voluntary organisations, it was ultimately not possible for Josie to secure a solicitor who was prepared to lodge a petition for judicial separation in the High Court on her behalf pro bono.This, she recalled, 'led me in despair to write to the European Commission of Human Rights in the hope that that body might intervene on my behalf and secure for me the access to the High Court and the judicial remedy which I sought.' 75 The first application to the Commission was brought in 1973.
Even after her husband's 1972 conviction, and in reality, right until the closing of the trial at the European Court of Human Rights in 1979, Josie lived under the shadow of financial precarity and the threat of violence.This, coupled with the heavy mental load of navigating the mixed economy of welfare, had an enormous effect on her mental and physical health.She stated in 1978: . . .my own health was affected and undermined by the physical abuse and intimidation which I endured when my husband was still living with us in the Family Home, and I still suffer from mental distress and worry because my position and the position of my children is not secure. 76e administrative and mental strain of preserving the separation also quickly became apparent.From 1974, Josie secured a maintenance order of £20 per week from her husband while they lived apart.In August 1975, Timothy unexpectedly came to the door of Josie's home and asked to come in and see the children: 'my said husband's sudden arrival on the doorstep was extremely disturbing to the children and in particular to my daughter Noreen who was very frightened for several months afterwards.' 77 After this incident she applied to Cork Corporation to transfer to another local authority house elsewhere in the city, which was not granted until July 1977.The situation worsened in 1978, when Timothy refused to provide any more maintenance after he took voluntary retirement with a lump sum of £5,000 and no pension. 78This heightened Josie's apprehension that her husband 'might try to come and live in the family home' as his only income thereafter was unemployment benefit.She also believed that he could no longer be obliged under the Family Law (Maintenance of Spouses and Children) Act, 1976 to continue to pay weekly sums to maintain the family.Josie's affidavit also addressed the shortcomings of recent legal reform.She declared: I do not regard the recently introduced remedy of a barring order under Section 22 of the Family Law (Maintenance of Spouses and Children) Act 1976 as an adequate remedy for my circumstances where my marriage has broken down and I seek the full protection of the law and the secure legal status of a person who has obtained a judicial separation.
In her informed view, a temporary barring order was no substitute for a judicial separation, which 'would give me and my children permanent legal security, would protect my succession rights under Irish law and would clarify my status as a legally separated woman.' A notable part of Josie's tenacity and determination was again visible in her attempt to gain an annulment of her marriage from the Catholic Church via the Cork Regional Marriage Tribunal in 1976, notwithstanding the fact that she was 'aware and have been so informed, by my Counsel that this has no legal effect and does not in fact annul my marriage under the law of the State in Ireland.'This was a lengthy process, and Josie's case for annulment was still under investigation by the ecclesiastical authorities in 1979. 79It involved multiple interviews, hearings and the gathering of witnesses, not all of whom were guaranteed to cooperate in the process.That an annulment granted by the church would make no difference under Irish law only underscored Josie's severe need for access to legal aid in order to be granted a separation in the High Court.
. . .my marriage . . .has broken down irretrievably . . .I need the full legal security of a judicial separation to remove the constant worry that my husband may return to the family home . . .I need the legal status and identity of a separated woman so that I can create a secure and happy home environment for my children.
Josie had also consulted with the Cork FLAC centre, which again lacked the resources to support her.As a woman who 'had a strong sense of her right to justice', Josie initiated contact with the European Commission of Human Rights with the encouragement of her brother (Robinson, 2012, p. 107).She was represented by Mary Robinson as counsel.As Robinson recalls in her memoir, the case was unique and 'intriguing because of the paradox of Mrs Airey being awarded legal aid by the Commission in Strasbourg to bring her case in Ireland' (Robinson, 2012, p. 108).The case opened in Strasbourg in July 1977; Josie was also given assistance from Maureen Black of the Cork Citizen's Advice Bureau, who travelled with her to these hearings at her own expense (McAvoy, 1994).For her own travel costs, Josie had to take out a loan. 80To emphasise her strength and determination should not undermine the toll Josie's journey had taken on her.She told the Irish Times in 1978: 'I can't describe the years of loneliness and desperation as I met blank wall after blank wall, but I'm feeling a bit better now.' 81 While the case was proceeding in February 1979, FLAC members picketed the Department of Justice in Dublin in support of Josie, holding placards which read 'Mrs Airey Represents Thousands' and 'Justice?Mrs Airey Couldn't Afford It'. 82Her complaints, first lodged in 1973, were that the hearing of her charges against her husband in January 1972 was unjust, that the State had not protected her against physical and mental cruelty from him by not detaining him after the aforementioned hearing, by not ensuring that he paid maintenance regularly after the separation and by not enabling her to have a legal separation or divorce from him by virtue of the prohibitive cost of High Court proceedings for which there was no free legal aid. 83The state's retort was that Josie 'failed to exhaust domestic remedies' and that she could have appeared before the High Court without legal representation. 84These proposals were rejected by the court; indeed, their shortcomings are visible in the previously outlined narrative of each step taken by Josie prior to this case.The case was made successfully that the Irish state had violated her rights as per the 1950 European Convention on Human Rights, in particular article 6, which provided for a 'fair and public hearing' for all citizens. 85Josie's victory, ruled in 1979 after the Irish government appealed the case, ultimately secured the introduction of a scheme of civil legal aid in Ireland.
The ruling represented obligations associated with Ireland's membership of the EEC, which was repeatedly critical in the enactment of legal reform affecting the status of women in Ireland.Predating this, however, was an acute awareness among many women's organisations in Ireland about what Helen Glew terms as the 'interconnections between the ideas of women's rights and human rights' (Glew, 2023, p. 790).From the late 1960s, women's organisations were ahead of the state in terms of lobbying for a national Commission on the Status of Women and recognising the communal obligations that Ireland would soon be party to as an EEC member.The CSW subsequently used UN and EEC statutes as benchmarks for their recommendations.The many subsequent changes made to the legal status of women (chiefly covering family law, social welfare, and employment law) occurred with Ireland's membership of the EEC in mind.Where the state refused to cooperate, Europe often eventually forced its hand through legal judgements and regulations.While this phenomenon is widely accepted, how such rulings may or may not have either generated or, indeed, succeeded socio-cultural change in Irish society is less clear.In this regard, it is telling to note that the ruling in the Airey case was understood by the Irish public in terms of human rights as well as feminism.Indeed, even prior to the final ruling, an Irish Times article observed that 'there are surely many men and women in Ireland today who must feel that the case has already been won, that Mrs. Airey has forced the Government to recognise and accommodate an essential human right.' 86 Upon her victory, Josie told the Evening Herald that she was 'delighted -not just for myself, but for all the other Irish women who have had to suffer like I have.' 87In a radio interview, she stated that she felt far better treated by the European Court of Human Rights than in Irish courts. 88It was not until early 1981 that the state agreed to fund Josie's judicial separation action in the High Court, which she eventually obtained, and also paid damages of £3,140 to her. 89 Ireland struggled to keep pace with various obligations of EEC membership in terms of equal pay and social welfare.The state's attempt, for example, to delay the implementation of equal pay in early 1976 was another example of the tension between Irish and European law. 90Press coverage of the ECHR ruling focused not only on the length of this six-year legal battle, but also on how the ruling was a fundamental embarrassment to the State, having opposed Josie's case at every stage. 91This feeling was made more acute by virtue of the fact that in 1971, Ireland took a case against Britain at the European Court of Human Rights (ruled in 1978), concerning the ill-treatment of Irish detainees by British security forces in the north of Ireland (Bonner, 1978).
In 1980, a limited scheme of civil legal aid was introduced by the state via the funding of a Legal Aid Board, with an initial seven law centres throughout the country. 92Legal aid and advice was provided at these centres via salaried solicitors on a mean-tested basis.The centres differed from the FLAC and Pringle model as it did not extend to community education or ongoing recommendations for reform. 93espite the plan for the scheme to be expanded, from its establishment the Legal Aid Board was under considerable financial pressure, made worse by cuts to state expenditure in 1981 as outlined in its first report: Seven Law Centres . . .are simply not enough to provide anything like a nationwide service.The pressures now being experienced by the staff in some Centres is such that unless the Board can open additional centres and recruit more staff it will have to close Centres to the public temporarily . ... In effect this will mean the denial of legal advice or aid to persons for whom the Scheme was intended because in many cases delay in dealing with applications means just that. 94e scheme implemented by the Government in 1980 was therefore restrictive and 'the minimum necessary' in response to the Airey case. 95The State Scheme for Civil Legal Aid and Advice was not given statutory footing until the passing of the Civil Legal Aid Act, 1995.O'Morain notes that the revised scheme 'was as restrictive as the old and did not implement the report of the Pringle Committee.' 96Moreover, the scheme did not represent the type of community service envisioned by FLAC.In 1995 the Coolock Community Law Centre emphasised that it remained the sole provider of a community-based service in the area of civil legal aid.It had 'sought to stimulate an extension of this type of service, but despite the introduction of the State Civil Legal Aid Scheme in 1980, this concept was not embodied in the scheme.' 97 That FLAC and ancillary services remained in operation on a voluntary basis, despite a consistent threat of closure due to scant resources, reflected the failure of the state to introduce an adequate scheme of legal aid and advice.

Conclusion
A historical study of the changing legal situation surrounding marital breakdown in this period reveals the role of feminist activism as central to socio-cultural as well as legal change.Public awareness was raised by the media and activists alike; by the time of the Airey judgement, the Irish public were more than aware of the problems experienced by women such as Josie.The ongoing pattern that emerges is one of activists in opposition to an intransigent state.The role of the EEC was therefore apparent in forcing the state's hand.As this article has emphasised, feminists were repeatedly aware of the necessity for international structures and statutes for change to occur at a national level.As Hilda Tweedy of the IHA recalled, 'the pressure was coming from outside too, from the UN and from Europe as well and we were hard at it here, we didn't let them forget.' 98he deeply personal elements of the Airey case presented in this work reveal an intimate process of how the mixed economy of welfare was experienced in this period by thousands of women.This opens the possibility for further similar analysis of deserted wives, separated women and unmarried mothers, with a particular emphasis on the dynamics of social class.While Irish citizenship has been gendered for decades, women without considerable means have experienced isolation from the full rights of citizenship most acutely.As O'Morain reflected in his history of FLAC: Had Mrs Airey not known about her rights, the State may have been spared the embarrassment of losing a case on Civil Legal Aid at the Court of Human Rights.If information is power, then educating the poorest people on their legal rights could result in considerable inconvenience for the State. 99spite their critiques of the patriarchal nature of Irish family structures, the IWLM and successive feminist groups did not campaign overtly for divorce until the early 1980s.As Rosita Sweetman recalled, 'our little ship was so tiny and so fragile, and the patriarchy out there so entrenched and so vicious, that we had to start with baby steps' (Sweetman, 2020, p. 122).Similarly, Mary Kenny expressed that, in her view, the IWLM's decision not to campaign for divorce was a pragmatic one, in light of the mood of the general public and the necessity for further reform in family law prior to divorce legislation: I think that this may have been (like abortion) a bridge too far at that time.But I think it may also have been that we didn't perceive a very great demand for it.Letters from women readers to the women's pages of the newspapers (many of us worked in journalism) seldom mentioned divorce: money problems, drink problems, desertion and, yes, too-frequent childbearing were the issues to the fore.Besides, I think that the property laws would not have been favourable to women in divorce in the 1970s (Kenny, 2015, p. 48)   Tellingly, this attitude had not fully shifted during the first Irish divorce referendum in 1986, which failed to change the status quo.Those campaigning against divorce repeatedly associated the phenomenon with poverty for women and children, reflecting decades-old anxieties about the preservation of the traditional order of the heteronormative Irish family, led by a male breadwinner.The Judicial Separation and Family Law Reform Act, 1989 subsequently increased the grounds for separation and abolished divorce a mensa et thoro.It is unsurprising, given the conservative nature of legal reform covered in this article, that the system of divorce eventually implemented after the narrowly-won 1996 referendum was protracted, requiring an extensive period of separation and 'no principle of a clean break' (Urquhart, 2020, p. 239).Notwithstanding the slow pace of change in Irish society, the Airey case and the activism preceding it to initiate legal change marked a hugely significant moment on the path towards the legalisation of divorce.