THE Government must feel great relief that the appalling vista of having to re run the divorce referendum has now receded as a result of the High Court's rejection of Mr Des Hanafin's legal challenge.
However, the possibility of an appeal to the Supreme Court cannot be totally ruled out even if the present legislation limits the grounds for such a recourse.
The attempt to introduce divorce has been bedeviled by various court decisions in recent years, so there was understandably a lot of nervousness as to bow this case would go.
The Government had received a serious setback with the McKenna case ruling in the Supreme Court shortly before the divorce referendum that it was unconstitutional to spend public funds to promote a particular result in a referendum.
But in the Hanafin case, the Attorney General, Mr Dermot Gleeson SC, had argued forcefully the £500,000 spent by the Government in good faith in promoting a Yes vote last November in no way vitiated the freedom or integrity of the ballot itself.
The three judges accepted his argument that there was no proof that the electorate had been influenced by the Government campaign to vote in a particular way. Indeed, it was ironic that the experts on opinion polls called by the Hanafin team helped to convince the judges that it was impossible to prove cause and effect in this complex area of voters' intentions.
Once the High Court is able to endorse the provisional certificate of results thus allowing the President to sign the Constitutional amendment into law, the Minister for Equality and Law Reform, Mr Taylor, will be able to introduce the already published Divorce Bill into the Dail without further delay. It should be enacted before the end of the year as the Government will be giving it priority. It is now running two years behind the original timetable.
Fianna Fail also welcomed the High Court result but intends to try and amend the Bill on its way through the Dail and Seanad.
Scope for major amendments is limited because the conditions for obtaining a divorce will be written into the Constitution. Thus the electorate has already decided that there will have to be a four year period of separation before divorce proceedings can be instituted.
Fianna Fail has already stated that it will be tabling amendments in the area of the protection of children. The wording of the constitutional, amendment is not too precise here as one of the conditions for divorce is that "proper provision having regard to the circumstances exists or has been made for the spouses and any dependent members of the family".
However, the existing Judicial Separation Act has detailed provisions in this area, and they are largely incorporated into the Divorce Bill.
The Government will now have to give serious consideration to the implications of the McKenna judgment for future referendums. There may be one on bail and on the revision of the Maastricht Treaty in the not too distant future.
Governments clearly have a duty to explain to the electorate the details of any proposed changes to the Constitution and the reasons for such changes. The courts hearing the McKenna and Hanafin cases have confirmed that governments have such obligations. What is ruled out in future is expenditure of public funds on advocating a certain result.
Governments will have to decide where the line is to be drawn between information and advocacy. This is not as easy as it appears. A convincing case in a White Paper for certain changes in the Maastricht Treaty, which a government had already negotiated and agreed with its EU partners, could be construed by opponents to Maastricht as advocacy even if there is no specific advice given.
In the later stages of the divorce referendum, the Government made a gesture towards abandoning advocacy of a Yes result and commissioned a pamphlet giving arguments for and against. This is certainly preferable to the Danish government's action in its Maastricht referendum when it delivered the full text of the Treaty to every household but without any guidance to a text which still baffles many EU experts.