Independent Ireland’s courts, established 100 years ago this week, are a window into a changing society. In the latest in an occasional series on landmark cases, Mary Carolan recalls the marriage break-up that became a national talking point.
A Florida court will not have to decide the effect of a pre-nuptial agreement between Irish golfer Rory McIlroy and his wife now the couple have withdrawn their divorce petition but “pre-nups”, as evidenced by a landmark Irish court case more than 70 years ago, are not a modern phenomenon or the preserve of the rich.
A 1950 Irish Supreme Court decision on a dispute over a very different form of pre-nup caused huge controversy here and made headlines abroad.
The pre-nup concerned the education of three sons of a “mixed” marriage.
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Mary Josephine Barnes, a Catholic, was about 16 and pregnant when she married 24-year-old Ernest Tilson, a Protestant, in December 1941 in a Catholic church in Dublin.
To get the dispensation required under the Roman Catholic Ne Temere papal decree that would permit a Catholic to marry a Protestant, both signed an undertaking their children would be baptised and brought up as Catholic.
Their four sons were duly baptised and reared as Catholics.
The union, as the High Court described it, was “not altogether happy”. Ernest, who worked for Dublin Corporation, did not like his wife working in a laundry or his young family living for periods with his wife’s parents and other family members in their crowded four-roomed house at Turner’s Cottages in Ballsbridge.
During court cases, both made accusations against each other – hers against him included drunkenness and he alleged she preferred to live with her parents because she disliked housework. In 1949, Ms Tilson summoned her husband for maintenance, but a reconciliation was achieved on terms including he was to pay her £4 weekly.
The dispute leading to her High Court case broke out on April 1st, 1950, when she alleged he was drunk and violent, leading to her seeking refuge with her mother. He denied her claims.
On April 3rd, while his wife was away at work, Mr Tilson, the High Court said, “suddenly and silently” removed the three older boys from her parents’ home and took them to his parents’ home in Oldcastle, Co Meath. After six weeks, he brought them to the Protestant Birds’ Nest institution in Dún Laoghaire “designed for necessitous children” and arranged to pay five shillings per boy weekly for their maintenance and education.
Some local Catholic residents, encouraged by their parish priest, boycotted Mr Tilson’s family’s tailoring business in Oldcastle during the court proceedings and for a time afterwards
“One can imagine the mother’s state of mind”, Mr Justice Gavan Duffy said, on returning from work to find the older boys gone and being told by her husband, in communications from Oldcastle, she “would have a job finding out about them”. She went to the Garda and the Society for the Prevention of Cruelty to Children in an unsuccessful effort to establish their whereabouts before her husband told her, after some weeks, where they were.
She went immediately to the Birds’ Nest and that same day, May 18th, 1950, applied to the High Court for orders requiring production of the three boys in proceedings against Ernest and the trustees of Mrs Smyly’s Homes and Schools, the “Bird’s Nest” institution.
The application raised two core questions – whether the husband was bound by the pre-nup undertaking and whether the common law rule conferring paternal supremacy in matters of upbringing, education and religious instruction conflicted with article 42.1 of the 1937 Constitution, under which the State guarantees to respect the “inalienable” right and duty of parents to provide for the education of their children.
The High Court found the husband’s uprooting of his family was “dreadful” and “unjustifiable”. It ruled the prospective general welfare of the children required they be returned to live with their mother and taught as had been agreed by both parents in the pre-nup.
Ernest Tilson appealed to the Supreme Court which found against him by a majority of four to one but on a different basis than the High Court.
The majority – Chief Justice Conor Maguire and Justices Murnaghan, O’Byrne and Lavery − ruled that, under the Constitution, both parents have a joint power and duty concerning the religious education of their children. Where parents together made a decision and put it into practice, one parent could not later revoke it against the will of the other, they held.
Outraged Protestants, North and South, including Rev WCG Proctor, from Grosvenor Road, Dublin, wrote letters to The Irish Times objecting to the court’s decision
The paternal supremacy common law rule was inconsistent with article 42.1, they held. “The archaic law of England rapidly disintegrating under modern conditions need not be a guide for the fundamental principles of a modern state,” Mr Justice Murnaghan said.
A pre-nuptial agreement made by parties to a marriage, dealing with matters which will arise during the marriage and put into force after the marriage, has binding force in law, they ruled.
The children, the court directed, must be returned to their mother to be educated by her, if not by both parents, in the manner they had been taught under the pre-nup.
The majority stressed that, unlike the High Court, the Supreme Court was not holding that articles 41 and 44 conferred any privileged position before the law on members of the Catholic Church.
The decision meant that Mrs Tilson did not win because she was a Catholic but because she had acquired equality under the Constitution as a parent. Her husband lost because the court found he no longer possessed patriarchal privileges.
That distinction was lost on many commentators who focused on the fact that, because the pre-nup had been found legally enforceable, that meant the Ne Temere decree was legally enforceable in certain circumstances.
The outcome of the Tilson case made headlines, not just in Ireland, but around the world and was interpreted over decades as an illustration of the extent of the Catholic Church’s influence in the Republic and on decisions of the Irish courts.
In an editorial published shortly after the judgment, The Irish Times referred to the “archaic” character of the paternal supremacy rule and agreed with the Supreme Court’s decision the rule was inconsistent with the Constitution.
While noting the Supreme Court had taken “some trouble” to keep the religious dimensions of the case in the background, the editorial said it was difficult to avoid the impression that the philosophy underlying Irish jurisprudence “is tending, slowly but surely, to be informed by the principles of the Roman Catholic Church”.
Outraged Protestants, North and South, including Rev WCG Proctor, from Grosvenor Road, Dublin, wrote letters to The Irish Times objecting to the court’s decision.
“The necessity to be selective (in the religious sense) in the choice of one’s life partner is greater than many of our young men and women can bear,” he wrote. “But what else is the solution? And so the forces of partition are strengthened.”
A letter from PC Byrne, from Naas, said: “Northern Ireland Protestants cannot understand why they alone are always being accused of bigotry in view of the Tilson case. They are equally baffled by the decree that one cannot be a good Catholic by attending Trinity College. They also class as bigotry the ‘foreign’ games and dances regulation by the GAA and the fact that in Éire one often wears a British Legion poppy at grave risk of assault on the streets.”
The letters were published by the newspaper under the subject “Ne Temere”, to the annoyance of one letter writer who complained the subject matter of Ne Temere decree “has as much to do with the Tilson case as [then Irish Times editor] Mr Smylie’s golf handicap”.
The Supreme Court decision attracted much adverse attention north of the Border. At a meeting of St Anne’s Unionist Association in Belfast later that year, the Northern Ireland attorney general, Edmond Warnock, referred to it as “the most serious development which has taken place in Éire for a very long time”, the effect of which was that the law of the Roman Catholic Church “must dominate the law of the land”.
[ A story of church and State in 1950s Ireland with an intriguing twistOpens in new window ]
In a recent article about the Tilson case, the Supreme Court’s Mr Justice Gerard Hogan rejected suggestions the Irish courts of the time were influenced by sectarian motives in deciding such custody disputes. Much of the commentary in the aftermath of the Supreme Court judgment was “downright unfair”, he said.
The implications of the case for church/State relations in general, and the Protestant community in particular, were most unfortunate, Mr Justice Hogan acknowledged.
The Supreme Court, he said, should have taken the opportunity to demonstrate this was because the Catholic Church, not the State, insisted on such an undertaking in “mixed” marriages.
The Tilson case presaged several later cases which acknowledged the Constitution regards marriage as a union of equals, he noted.
The case had significant consequences for the Tilsons. Some local Catholic residents, encouraged by their parish priest, boycotted Mr Tilson’s family’s tailoring business in Oldcastle during the court proceedings and for a time afterwards.
Mr Tilson felt he had to leave Oldcastle and eventually went to London while his wife stayed in Dublin and reared their children. The couple reunited years later and remained together until their deaths in the 1990s.
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