THE Supreme Court is believed to be divided on the validity of the result of the recent divorce referendum.
The Irish Times has learned that two judges in the five member court are likely to support the petition by the chairman of the Anti Divorce Campaign, former Senator Des Hanafin, challenging the outcome of the referendum.
Two other judges, including the Chief Justice, Mr Justice Hamilton, are likely to reject the petition.
Legal observers suggest that the newest judge in the Supreme Court, Mr Justice Barrington, could have the decisive vote in the divorce case.
He was appointed to the court last January having served 10 years as a Judge of First Instance in the European Court of Justice. The divorce petition will be his most substantial judgment in the past four months.
A known liberal in his former career on the High Court bench, senior legal sources see him as a good constitutional lawyer who can be persuaded by the legal argument.
The Supreme Court is expected to hand down its judgment on the Hanafin case within three weeks. It reserved its decision last Friday after four days of hearings.
In their interventions in the Supreme Court hearings which are not, in themselves, the most reliable barometer of judges' intentions Mr Justice Blayney and Mr Justice O'Flaherty indicated that they could produce judgments supporting Mr Hanafin's case.
The other judges sitting on the case are the Chief Justice and Mrs Justice Denham. Mr Justice Barrington, the fifth judge, was the Tanaiste's first choice as President of the High Court during the political crisis which led to the fall of Mr Albert Reynolds's government.
Since the challenge to the result of the divorce referendum is the first petition taken under the Referendum Act, 1994, it is not clear whether the Supreme Court will hand down a single judgment or five separate judgments.
Mr Hanafin is seeking the nullification of the divorce referendum result and the holding of a new poll. The referendum result was the closest ever, with only about 9,000 votes, or 0.5 per cent, separating the Yes from the No on divorce.
A three member divisional court of the High Court rejected Mr Hanafin's petition last February on the grounds that it did not establish the Government's advertising campaign materially affected the result.
The Government's spending of public funds for a Yes vote was declared unconstitutional in the Supreme Court judgment in the McKenna case a few days before the poll last November.
The key issue to be decided by the Supreme Court is whether Mr Hanafin's petition should stand or fall.
If dismissed, all legal challenges to the introduction of divorce would be exhausted. The Government could then proceed with the enactment of legislation to introduce the terms for divorce.
If Mr Hanafin wins his appeal, it is most likely, according to legal experts, that the case would be referred back to the High Court.
One option would be for a retrial by the High Court and the other option, in theory, would be for the original divisional court to reconvene to hear evidence from, among others, the State.
Two of the original judges, how ever, Mr Justice Lynch and Mr Justice Murphy, have since been promoted to the Supreme Court.
A nullification of the divorce referendum result though still thought unlikely would prove to be a political nightmare for the three party Coalition at this stage. Facing into the EU Presidency and all party negotiations in the North from June onwards, the Government would not relish the task of rerunning such a divisive poll in the immediate run up to a general election.
