Marriage at common law is the union of one man and one woman to the exclusion of all others for life. The legal formalities for marriage must be followed. The marriage must be voluntarily contracted.
The institution of marriage is protected by the Constitution. The courts had rejected attempts to recognise same-sex marriage. Following a 2015 amendment to the Constitution, same sex marriage is now permitted and recognised. The Constitution, as amended, provides “marriage may be contracted in accordance with law by two persons without distinction as to their sex”.
Although there is an element of contract to marriage, the rights and obligations are largely prescribed by law. It is not possible to pick and choose those which are applicable. It is possible to enter a prenuptial agreement in relation to some narrow matters.
Apart from succession rights, where there are express provisions, there are doubts as to the extent to which parties might legally limit themselves in relation, for example, to the court’s powers to distribute property on judicial separation or divorce.
Formerly, the parties had to be of the opposite sex. The courts took the view both in Ireland and England that a person’s biological sex as registered at birth determined the position. However, the European Court of Human Rights held that the failure to acknowledge gender reassignment for legal purposes may be a breach of the right to privacy.
The Irish High Court refused to recognise same-sex marriages entered under the laws of other jurisdictions. The European Court of Human Rights held that the right to marry guaranteed by the convention did not apply to same-sex couples.
Civil partnership legislation enacted in Ireland in 2010 (the UK in 2004) provided a status which is in almost all respects, equivalent to that of marriage. However, it does not constitute marriage.
Since 2015 “marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
Human Rights Protection
The Constitution protects the institution of marriage. The right to marry is itself a personal, unspecified right, protected by Article 40.3. and has been recognised by the courts as such. The State has pledged itself to guard with care the institution of marriage on which the family is founded and to protect it against attack.
See the section on constitutional law in relation to the manner in which this Article has been interpreted. In a number of cases, the courts have found that the State may not discriminate in its laws in such a way that an unmarried couple in an equivalent position is in a better position than a married couple in the same position.
The right to marry is specifically protected by the European Convention on Human Rights. Men and women of marriageable age have the right to marry and found a family according to the national laws governing the exercise of the right. The right to marry may be regulated in accordance with national laws.
A marriage of convenience or sham marriage refers to marriages which are designed for an ulterior purpose, almost always the securing of residency rights within the State and/or the European Union. Laws in relation to freedom of establishment and residence within the European Union are subject to limitation. The relevant rights are not enjoyed if they are acquired by fraudulent means.
The Registrar may refuse to proceed with a marriage that he or she believes to be a marriage of convenience. However, if the marriage ceremony is completed, there is a valid marriage, at least until an order of nullity is made.
Forced Marriage Offence
A person commits an offence if they use violence, threats, undue influence or any form of coercion or duress for the purpose of causing another person to enter into a marriage. It is also an offence to remove another person from the State with the intention that they will be forced into a ceremony of marriage.
At common law, an engagement or contact to marry was binding. An action for breach of promise could be taken if an engagement was broken. The right to take action was abolished in 1981, so the contracts to marry are no longer binding at law.
The 1981 legislation makes provision in relation to the termination of engagements. Where wedding gifts are made to an engaged couple or to either of them, it’s presumed that it was intended to be given to them as joint owners and is subject to the condition that it is to be returned to the donor if the marriage does not take place.
Gifts between engaged couples, including engagement rings, are presumed to be conditional gifts. They should therefore be returned in the event that the engagement is terminated other than by reason of death. In this latter circumstance, the gift is presumed to be unconditional.
Disputes re Engagement
Third parties may claim compensation for substantial expenditure incurred by them on behalf of an engaged party. Where a benefit is given by third party due to the engagement, the court may, on the application of the party, make an order for just and equitable compensation.
The legislation also extends the summary form of property dispute resolution mechanism applicable between spouses to disputes between formerly engaged couples in relation to property. This does not give the spouse any beneficial ownership. It creates a simplified mechanism to resolve disputes on property law grounds. For example, assets may be held on trust as a result of contributions to the purchase price made by one or other party to the engagement, notwithstanding that he or she is not on the legal title to the property.
An engaged person may spend monies or incur obligations in preparation for a wedding. Where the engagement is broken, one party may make an application to court for an order that appears to be just and equitable in the circumstances. Therefore, a fiancé who incurred substantial expenditure for the benefit of the other fiancé may seek a contribution from the other party.
A marriage is usually valid if it is contracted in accordance with the formalities of the state where it takes place. Provided this is so, Irish law will recognise the marriage.
Other issues, such as the capacity to marry, are determined by the law of the country in which the parties are domiciled. See our separate section on international conflict of law rules. Domicile refers to a person’s long-term home base.
The Irish courts recognise foreign marriages, provided that they are valid in accordance with the place where the marriage takes place. This is a different issue to the capacity of the parties to marry, which is usually determined by the law of the parties’ domicile.
Prior to the mid-19th century, common-law marriage was recognised as valid. This is a marriage entered by the exchange of vows. The courts have taken a liberal view in recognising common-law marriages contracted in other jurisdictions, even where there has been non-compliance with the laws of the place concerned. This has occurred in countries where law and order have broken down and it is impossible to produce formal records.
Subject to exceptions, the parties to the marriage must be over 18 years of age. They must be of sound mind and have mental capacity. They must not be within certain forbidden degrees of relationship.
Historically, the age for a valid marriage was significantly lower than 18, notwithstanding that the general age of the majority was 21. However, in line generally with other provisions as to the capacity, the age of capacity to marry is 18 years.
There was provision by which an application may be made to the court to permit a marriage, notwithstanding that one or both parties were under 18 years. An exemption may be granted in exceptional circumstances if this was in the best interests of the party.
The Domestic Violence Act 2018 removed the exemption for underage marriage. It also provided that there is no effect on the validity of marriages which have already taken place on the basis of a marriage exemption which was granted prior to commencement of the legislation.
A person may not marry unless he is unmarried. A person who has been divorced may remarry. A person divorced under the laws of another jurisdiction may only remarry if the divorce is recognised under Irish law.
The conditions for recognition of foreign divorce were narrow during the period when divorce was constitutionally prohibited in Ireland. Since then, and also by reason of EU requirements, the grounds for recognition of a foreign divorce have broadened considerably.
If a divorce is recognised in another jurisdiction, for example, on the basis of temporary residence, but not recognised in Ireland, then a remarriage may be valid in accordance with the laws of the foreign jurisdiction but not in accordance with the laws of Ireland.
It is the criminal offence of bigamy for a person who is married to go through a ceremony of marriage. Parties who are already married may remarry by way of a further ceremony of marriage without committing bigamy. The crime of bigamy is rarely charged or prosecuted.
Persons may not marry those in certain degrees of blood relationship or relationship by marriage. Half and full-blood relatives and marital and non-marital relatives are included. An adoptive child is deemed related both to its natural family and adoptive parents.
The prohibited degrees of relationship for marriage by consanguinity are: grandfather, mother, father’s sister, mother’s sister, sister, father’s daughter (half-sister), mother’s daughter, daughter, son’s daughter, daughter’s daughter, brother’s daughter, sister’s daughter. A woman may not marry corresponding relations.
The prohibitions in relation to affinity by marriage are: grandfather’s wife, father’s wife, father’s brother or wife, mother’s brother’s wife, son’s wife, son’s son’s wife, daughter’s son’s wife, brother’s son’s wife, sister’s son’s wife, wife’s grandmother, wife’s mother, wife’s father’s sister, wife’s mother’s sister, wife’s daughters, stepdaughter, wife’s son’s daughter, wife’s daughter’s daughter, wife’s brother’s daughter, wife’s sister’s daughter. The prohibitions for the female partner are broadly similar.
In the case of civil partnership, the prohibited degrees for males are: grandfather, grandfather’s brother, father, father’s brother, mother’s brother, brother’s nephew’s son, grandson, and grandnephew. For a woman, the equivalent provisions apply in respect of female relations.
The Irish High Court has struck down as unconstitutional legislation which prohibited marriage to the sibling of a deceased spouse. It was found to be an unnecessary restriction on the constitutional right to marry.
Declaration of Validity
The courts have the power to make a declaration relating to the validity of a marriage. They may declare whether at a particular time, a foreign divorce, annulment, or legal separation is recognised or not.