Marriage
Cases
O’Shea v Ireland
October 17, 2006
[2007] 2 IR 315 O’Shea v. Ireland
Laffoy J. 315
H.C.
Factual background
On the 23rd October, 1980, the first plaintiff, who was born on the 12th May, 1961, married John O’Shea (the former husband), who was born on the 29th January, 1957.
There were two children of the marriage, a girl, who is now 25 years of age, and a boy, who is now 22 years of age.
In 1985 the first plaintiff and the former husband separated permanently. By order of the Circuit Court made on the 25th May, 2000, the first plaintiff and the former husband were granted a decree of divorce pursuant to s. 5(1) of the Family Law (Divorce) Act 1996.
The former husband is still alive. He has remarried and there are two children of that marriage.
Following their marriage, the first plaintiff and the former husband built a house on a site provided for them by the former husband’s mother and they lived there until their separation, when the former husband left. The first plaintiff continued to live there after the separation in 1985 with her two children. That house was in close proximity, about a quarter of a mile, from the family home of the former husband. After the separation the second plaintiff, a younger brother of the former husband, who was born on the 27th January, 1958 and who lived in the family home, assisted the first plaintiff financially by paying the mortgage on her house, and by providing groceries and such like, and in looking after the children. About five or six months after the former husband left, a relationship developed between the first plaintiff and the second plaintiff. The second plaintiff moved in with the first plaintiff at that time and they have co-habited ever since. They brought up the two children of the first plaintiff together. The evidence, which was uncontradicted, was that the presence of the second plaintiff in the home did not create confusion for the children. They knew that the former husband was their father. Although the children are now independent, they still live at home with the plaintiffs.
The second plaintiff has never married.
After the first plaintiff was granted the decree of divorce, the plaintiffs decided to get married. They then discovered that they were prohibited by law from doing so. Their solicitor was informed by letter dated the 6th December, 2001, from the General Register Office, of the provisions of the Deceased Wife’s Sister’s Marriage Act 1907 and the Deceased Brother’s Widow’s Marriage Act 1921 and, in particular, that the Act of 1921 expressly prohibits the marriage of a man to a divorced wife of his brother or half brother.
The plaintiffs still desire to marry each other and intend to do so if they are successful in these proceedings.
The claim
These proceedings were initiated by a plenary summons which issued on the 1st December, 2003. I mention that fact because the initiation of the proceedings pre-dated the coming into operation of the European Convention on Human Rights Act 2003, which came into operation on the 31st December, 2003. While the plaintiffs have not invoked the European Convention on Human Rights in their pleadings, as will appear later, the plaintiffs have relied on jurisprudence of the European Court of Human Rights in their submissions. While it is not strictly relevant, I wish to make it clear that I do not accept the submission made on behalf of the defendants that the Act of 2003, being non-retrospective, would not, even if it were pleaded, apply to this case. On the contrary, had Convention rights been invoked and had relief been sought under the Act of 2003, I am of the view that, as the basis of the plaintiffs’ complaint is that the prohibition of their marriage to each other is a continuing and ongoing state of affairs, the Act of 2003 would be applicable in its resolution.
In the statement of claim the plaintiffs have alleged that, by virtue of the provisions of s. 3(2) of the Act of 1907, as amended by s. 1(2)(b) of the Act of 1921, they are deprived of the ability to marry each other. However, they have pleaded that those provisions were rendered inoperable and void by reason of the operation of Article 50 of the Constitution and are no longer in force because they are inconsistent with the Constitution. In particular, they have pleaded that their rights to marry, to freely associate with persons of their choice and to form an established marital family have not been vindicated or upheld. They have specifically alleged the breach of their constitutional rights under Articles 40.1, 40.3.1, 40.3.2 (referring to their property rights), 40.6.1 and 41.3.2 of the Constitution. They have also alleged a breach of their right to re-marry pursuant to s. 10(1) of the Act of 1996.
The reliefs claimed by the plaintiffs include the following:-
(1) a declaration that s. 3(2) of the Act of 1907, as amended by s. 1 (2)(h) of the Act of 1921, is repugnant to the provisions of Bunreacht na hÉireann;
(2) a declaration that any rule of law prohibiting the plaintiffs’ right to marry each other is repugnant of Bunreacht na hÉireann;
(3) a declaration that a marriage entered into by the plaintiffs with each other will be lawful and valid; and
(4) a declaration that the registration of the plaintiffs’ marriage to each other will be a marriage validly registered.
The plaintiffs have also claimed damages on the basis that they have suffered anxiety, loss, damage and upset and also they have been financially prejudiced, having been unable to avail of tax allowances available to married people. This judgment is concerned only with the issue of the constitutionality of the law prohibiting their marriage, the issue of any damages to which the plaintiffs are entitled, and it is denied that they are entitled to any, having been left in abeyance until that issue is determined.
The law as to prohibition on marriage based on affinity
In view of the fact that the plaintiffs seek to impugn not only s. 3(2) of the Act of 1907, as amended by s. 1(2)(b) of the Act of 1921, but also any rule of law prohibiting the plaintiffs’ right to marry each other, it is necessary to ascertain the current state of the law on prohibition of marriage based on affinity, that is to say, relationship through marriage.
A useful summary of the law is to be found in the Law Reform Commission Report on Nullity of Marriage (L.R.C. 9-1984). I propose drawing on what is stated there in outlining the current state of the law. As was pointed out by the Law Reform Commission, the current state of the law results from a complicated legislative history, which raises some degree of uncertainty as to the precise scope of the prohibited degrees. One source of the complexity is that parliamentary intervention did not follow an identical path in Ireland and in England. For that reason, I found the English authorities cited by counsel for the plaintiffs more confusing than enlightening. The most authoritative guidance I believe is to be found in the revision of extant statutory provisions conducted by the Oireachtas in 1962 and given effect to by the Short Titles Act 1962 and the Statute Law Revision (Pre-Union Irish Statutes) Act 1962.
In Ireland, the starting point of the historical examination is a statute passed in the reign of Henry VIII, 28 Hen. 8, c. 2 (1537), which, by virtue of the Short Titles Act l962, may be cited as the Marriage Act 1537. That Act prohibited marriage within degrees of marriage “prohibited by God’s law” which it appears was equated with the prohibited degrees of consanguinity and affinity as laid down in the Book of Leviticus, chapter 18, which were recited and included the prohibitions on “the brother to marry the brother’s wife” and “any man to marry … his wife’s sister.” Section 2 provided that:-
“… no person or persons, subjects or resiants of this your land of Ireland, of what estate, degree, or dignity so ever they be, shall from henceforth marry within any of the said degrees afore rehearsed …”
Section 9 of the Act of 1537 contained a proviso that the article therein contained, concerning prohibitions of marriages within the degrees mentioned, should “always be taken, interpreted and expounded of such marriages, where marriages were solemnised and natural knowledge had”. I understand that to mean that the prohibition on marriage within the prohibited degrees of affinity only applied where the first marriage was solemnised and consummated.
The historical context of the Act of 1537 is interesting if not of any real significance for present purposes. It was one of a series of enactments in the 16th century which brought about State regulation in an area which hitherto had been regulated by the church. The primary purpose of the first statute in the series which applied in England (25 Hen. 8, c. 22) was to declare void the marriage of Henry VIII and Catherine of Aragon, who had previously been married to his brother, Prince Arthur, so as to enable Henry VIII to marry Anne Boleyn. By the time the next Irish statute which is relevant was enacted in 1542 both Catherine of Aragon and Anne Boleyn were dead, Anne Boleyn having been executed. Henry’s third wife, Jane Seymour, was also dead. He had divorced his fourth wife, Anne of Cleves. His fifth wife, Catherine Howard, was to be executed in that year. Over the following twenty years the monarch’s personal, dynastic and political objectives would continue to impinge on the law relating to marriage.
That Irish statute, 33 Hen. 8, c. 6 (1542) may, by virtue of the Short Titles Act 1962, be cited as the Marriage Act 1542. As stated therein, the purpose of the Act of 1542 was to nullify the effect of two “evils” which ensued from the Pope’s “usurped power making that unlawful which by God’s word is lawful”, one being divorce on the pretext of former contract and the other being dispensation of prohibitions invented by Rome. It provided, inter alia, that:-
“… no reservation or prohibition (God’s law except) shall trouble or impeach any marriage without the Levitical degrees.”
In Ireland marriage within the Levitical degrees had been proscribed by the Act of 1537.
The complications in the legislative history arise not only from the fact that different statutes applied to England and Ireland but from what happened on the accession of Philip and Mary and subsequently on the accession of Elizabeth I. The information contained in the second column of the first schedule to the Short Titles Act l962 which, s. 1(2) of that Act provides, is for information only and does not form part of the Act, indicates that the Act of 1542 was repealed by 3 & 4 Ph. & M., c. 8 (1556) and was revived as to degrees of consanguinity only by 2 Eliz., c. 1, s. 2 (1560). That information does not indicate that the Act of 1537 was repealed. In fact, the Act of 1537 was treated as being in force in Ireland throughout the Tudor and Elizabethan period and thereafter and was treated as the source of the law on the prohibited degrees.
As it is pointed out in theReport on Nullity of Marriage (at footnote 169), although originally marriages within the prohibited degrees were void, gradually they came to be regarded as voidable. The Marriage Act 1835 (5 & 6 Will. 4, c. 54), which is commonly referred to as Lord Lyndhurst’s Act, restored the former position. Although it is suggested in the report that this change was prompted possibly for reasons more connected with private interest than with public social policy, the Act itself in its preamble recited that it was “unreasonable that the state and condition of children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period”, that is to say, until avoided by a sentence of an ecclesiastical court during the lifetime of both spouses. Section 2 of the Act of 1835 provided:-
“All marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall he absolutely null and void to all intents and purposes whatsoever.”
What was within “the prohibited degrees of consanguinity or affinity” was not spelt out in the Act of 1835. While this gave rise to controversy in England after 1835, it would appear that in Ireland the accepted position was that the Act of 1537 remained the source of the prohibited degrees.
The combined effect of the Act of 1907 and the Act of 1921, which in Ireland effectively amended the Act of 1537, may be summarised as follows, the italicised words in the following quotations being added by the Act of 1921:-
(a) Section 1 provided:-
“No marriage heretofore or hereafter contracted between a man and his deceased wife’s sister or between a man and his deceased brother’s widow, within the realm or without, shall be deemed to have been or shall be void or voidable, as a civil contract, by reason only of such affinity …”
(b) Section 3(1) provided:-
“Nothing in this Act shall remove wives’ sisters or husbands’ brothers’ wives from the class of persons adultery with whom constitutes a right, on the part of wives, to sue for divorce under the Matrimonial Causes Act 1857.”
While the Matrimonial Causes Act 1857 did not apply to Ireland, in my view, that provision helps to convey the full import of the Act of 1907 and the Act of 1921.
(c) Section 3(2), which is the provision impugned by the plaintiffs, provided:-
H.C. “Notwithstanding anything contained in this Act or the Matrimonial Causes Act 1857, it shall not be lawful for a man to marry the sister of his divorced wife, or his wife by whom he has been divorced, during the lifetime of such wife or the divorced wife of his brother, or the wife of his brother who has divorced his brother, during the lifetime of such brother.”
It has been suggested that social policy considerations underlay the changes wrought in the Act of 1907 and in the Act of 1921. As regards the earlier Act, the justification advanced for the change was that a man of moderate means should be entitled to marry his deceased wife’s sister, where the sister had come into his home to rear his children on account of his inability to pay for domestic assistance. The later Act came after the end of World War I, when the male population of marriageable age had been decimated and many young women had been widowed, so that demographics and social considerations justified the change which permitted the marriage of a widow and her deceased husband’s brother. However, as it is pointed out in the Report on Nullity of Marriage at p. 135 those considerations cannot go all the way towards explaining the anomalies created by those changes, since many marriages must have been contracted under both Acts, where no such social considerations existed.
The most recent legislative intervention which is relevant is to be found in the Statute Law Revision (Pre-Union Irish Statutes) Act 1962 which effected the following amendments or repeals:-
(i) in the case of the Act of 1537, all of which, except ss. 2 and 9, had been repealed by the Statute Law Revision (Ireland) Act 1878 (41 and 42 Vict., c. 57), there were deleted from s. 2, inter alia, the references in the recital of the degrees of marriage prohibited by God’s law the prohibition on “the brother to marry the brother’s wife” and the prohibition on any man to marry “his wife’s sister”. Accordingly, as regards a man and his sister in law or a woman and her brother in law, the Act of 1537 no longer contains a prohibition on marriage;
(ii) the entirety of the Act of 1542 was repealed with the exception of the provision I have quoted earlier;
(iii) although the Act of 1560 was also repealed in its totality, that did not affect the revival of so much of the Act of 1542 as remained extant (s. 2(2) of the Act of 1962).
In summary, the current position appears to be that, with the exception of the man and sister in law relationship and the woman and brother in law relationship, the Act of 1537 remains the source of the prohibited degrees of consanguinity and affinity. There is no prohibition on marriage either within the man and sister in law relationship after the death of the man’s wife or within the woman and brother in law relationship after the death of the woman’s husband because of the provisions of s. 1 of the Act of 1907, as amended by the Act of 1921. The prohibition on the marriage of persons within the man and sister in law relationship and the woman and brother in law relationship after divorce, but before the death of the divorced wife or husband, as the case may be, stems from s. 3(2) of the Act of 1907, as amended by the Act of 1921. A purported marriage within those degrees of affinity is void by virtue of the Act of 1835.
On the basis of the foregoing examination of the legislative history of the prohibitions on marriage based on affinity which have been applied in Ireland for almost 500 years, I am satisfied that the current prohibition which is relevant to the position of the plaintiffs in this case derives from pre-1922 post-Union legislation, s. 3(2) of the Act of 1907, as amended by the Act of 1921, which, for the sake of brevity, I will refer to as s. 3(2) hereafter. The meaning s. 3(2) is clear and unambiguous. It is open to only one construction, which, if it is still in force, prevents a lawful marriage between the plaintiffs.
While it would appear to be the case, as counsel for the plaintiffs submitted, that the provenance of the statutory prohibitions on marriage based on both consanguinity and affinity enacted in the reign of Henry VIII and perpetuated thereafter was ecclesiastical law and ultimately the Book of Leviticus, in my view, that particular circumstance is not a factor which of itself is of any importance in determining whether s. 3(2) is or is not consistent with the Constitution.
Article 50 of the Constitution
Article 50 of the Constitution provides as follows:-
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
The essence of the plaintiffs’ case is that any law which was in force before the coming into operation of the Constitution which would have had the effect of prohibiting them marrying each other was not carried over by Article 50 because such law would be inconsistent with the Constitution. As I have concluded from the analysis of the legislative history set out above, the law which would prohibit the plaintiffs marrying each other, if it were in force, is s. 3(2).
In their submissions, the plaintiffs also invoked Article 73 of the 1922 Constitution of the Irish Free State, which was almost in identical terms to Article 50. They submitted that any law which pre-dated 1922 and would have prohibited the plaintiffs marrying each other did not survive independence. While prior to 1922 marriage within the prohibited degrees was not absolutely outlawed, because the facility existed to procure a derogation from the law by a private Act of Parliament, it was submitted that that exception was not carried over and that the Oireachtas created by the Constitution of 1922 could not enact a private Act regulating marriage. The commentary in Kelly on The Irish Constitution (4th ed.) at para. 7.6.97 suggests that that point is debatable; that the Oireachtas created in 1922 may have inherited power to regulate marriage by private Act, for example, to dissolve a marriage, which Parliament had before 1922, although such power was never exercised. I do not think it is necessary, and I do not think it would serve any useful purpose, to consider the thorny question whether the statutory provision in issue here was inconsistent with the Constitution of 1922. If s. 3(2) is inconsistent with the Constitution, it is not in force by virtue of Article 50 irrespective of whether or not it was carried over by Article 73 in 1922.
As a matter of construction of Article 50, given that the Constitution has from the outset been capable of amendment, the reference to the Constitution therein must mean the Constitution as it stands amended from time to time. Therefore, in my view, the real issue is whether s. 3(2) is inconsistent with the Constitution as now in force as amended by the people since 1937 and, in particular, in 1996 to provide for dissolution of marriage in certain specified circumstances.
It is common case that, as a provision of a pre-1937 statute, the statutory provision in issue here, s. 3(2), does not enjoy a presumption of constitutionality.
As to the onus which lies on the plaintiffs to establish that s. 3(2) is inconsistent with the Constitution, counsel for the defendants advocated that the court must adopt the approach adopted by the Supreme Court in Norris v. The Attorney General [1984] I.R. 36, where the constitutionality of a statute of the British parliament was at issue, although the case proceeded on the basis that it had survived the foundation of the State in 1922. Having identified the pertinent question as whether the statute was continued under Article 50, O’Higgins C.J. stated at p. 54:-
“If on examination of such legislation now, in the light of the Constitution as it has been interpreted and understood since its enactment, inconsistencies are established, such legislation, to the extent thereof, must be held not to have been so continued. To achieve this result, however, the plaintiff must show that such inconsistencies exist. It is not sufficient to show that the legislation is out of date, is lacking in public support or approval, is out of tune with the mood or requirements of the times or is of a kind impossible to contemplate now being enacted by Oireachtas Éireann . Unless inconsistency is established, such legislation, no matter what its defects or blemishes may be, is continued by the express terms of Article 50…until repealed or amended by enactment of the Oireachtas.”
As I understand it, the plaintiffs accepted that the onus is on them to establish that the impugned statutory provision is inconsistent with the Constitution, although it is not clear to me what they considered was required of them to discharge that onus. I mention this because counsel for the plaintiffs referred to the suggestion made in Casey, Constitutional Law in Ireland (3rd ed.) at p. 466, in the context of a discussion of the guarantee of equality before the law contained at Article 40 of the Constitution and the decision of the Supreme Court in Norris v. The Attorney General [1984] I.R. 36 that, given that before 1937 a pre-1937 enactment could never have had to run the gauntlet of an equal protection challenge, the presumption should be reversed, in that the burden of proving genuine (not hypothetical) rationality should lie on the State.
In my view, in order to discharge the burden of proof they have assumed the plaintiffs must show that s. 3(2) infringes one or more of the rights which the Constitution confers on them. Insofar as any such right is not an absolute right and the question which arises is whether the impugned provision is within the constitutionally permitted bounds of the limitation of such right, it is for the plaintiffs to establish that it is not. For example, as regards any issue as to the rationality or proportionality of s. 3(2) in the context of the recognition of a constitutionally protected right, the onus is on the plaintiffs to establish irrationality or disproportionality.
Addressing the core issue
In addressing the core issue, which is whether the plaintiffs have established that the law which prohibits them marrying each other, s. 3(2), is inconsistent with the Constitution, I propose considering first the extent to which the right to marry, which, in my view, subsumes the right to form a constitutionally recognised family, is protected by the Constitution and whether the prohibition contained in s. 3(2) infringes that right. I will then consider the relevance of the other constitutional rights invoked by the plaintiffs.
The right to marry
Although, as is pointed out in Kelly on The Irish Constitution (4th ed.) at para. 7.6.12, there is no judicial decision on the right to marry, as distinct from rights arising from marriage once contracted, apart from the decision of Kingsmill Moore J. in 1951 in Donovan v. Minister for Justice (1951) 85 I.L.T.R. 134, the constitutional jurisprudence which has developed over the last four decades not only recognises that right but also gives guidance on the extent to which freedom to marry may be constitutionally circumscribed by law. The comment by the editors of Kelly in the same paragraph that nowadays the right to marry, although it would seem to be a necessary derivative from the recognition accorded to the institution of marriage, is likely to be related to Article 40.3 rather than Article 41, in my view, is justified in the light of the jurisprudence. Therefore, the argument advanced on behalf of the defendants that the plaintiffs do not have locus standi to invoke Article 41, even if sustainable, does not preclude the plaintiffs from relying on the constitutional right to marry.
In Ryan v. The Attorney General [1965] I.R. 294, Kenny J. identified the right to marry as an example of a personal right protected by Article 40.3.1, although not enumerated in Article 40. In the course of an analysis of the two subsections of Article 40.3 he stated, at p. 313:-
“It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which flow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all – the right to free movement within the State and the right to marry are examples of this. This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.”
Earlier, at p. 312, having stated that the High Court has jurisdiction to consider whether an Act of the Oireachtas respects, and as far as practicable, defends and vindicates the personal rights of the citizen, including all those rights which result from the Christian and democratic nature of the State, and to declare the legislation unconstitutional if it does not, Kenny J. stated that it was a jurisdiction to be exercised with caution and he continued at pp. 312 to 313:-
“None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this. When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.”
In the sphere of marriage regulation that passage was quoted in full in the judgment of the Supreme Court in T.F. v. Ireland [1995] 1 I.R. 321 at p. 374 and applied. In that case the plaintiff challenged the constitutionality of s. 2(l)(f) of the Judicial Separation and Family Law Reform Act 1989, which provided that one of the grounds on which, if established on the balance of probabilities, a court is required to grant a decree of judicial separation is that “the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application”. The plaintiff contended that that ground set too modest a standard or too low a threshold for the granting of an order which would have the effect of impairing his constitutional rights in relation to his marriage and the institution of marriage generally. In other words, he was seeking to protect his rights arising from an existing marriage. The Supreme Court held that the provision of an entitlement to a decree of judicial separation if the impugned ground was established was an attempt by the Oireachtas to deal with the unfortunate situation created by the breakdown of a marriage and the inability of one or other of the spouses to cohabit with the other. Having regard to the numerous safeguards of people’s rights contained in the Act of 1989 as a whole, the Supreme Court held that it was not either an attack on the institution of marriage or a failure to guard it nor was it an unjust attack on the personal rights of the plaintiff.
Unlike the situation which arose in T.F. v. Ireland [1995] 1 I.R. 321, where the Oireachtas, a mere six years prior to the decision of the Supreme Court, had enacted comprehensive provisions in the Act of 1989 to deal with breakdown of marriage, the exercise of the right to marry as it concerns the right to marry one’s brother in law or sister in law following divorce has never been directly regulated by the Oireachtas, although it has been indirectly regulated in that the Oireachtas has not intervened and repealed s. 3(2). Indeed, leaving aside the exceptional situation of the recognition of a foreign divorce, between 1937 and 1996 such regulation was wholly unnecessary because of the constitutional ban on divorce, which rendered s. 3(2) redundant. However, in the light of the fundamental change brought about by the amendment of Article 41 in 1996, it must be doubted that legislative regulation by non-intervention merits the level of deference envisaged by Kenny J. in Ryan v. The Attorney General [1965] I.R. 294 and by the Supreme Court in T.F. v. Ireland .
The plaintiffs accepted that the right to marry protected by the Constitution is not unlimited and that it may be regulated by the Oireachtas in accordance with the common good. In identifying the parameters of constitutionally permissible regulation their counsel adopted the following passage from Casey,Constitutional Law in Ireland (3rd ed.), at p. 426:- “The right to beget children is thus not an absolute one, and the same must hold for the right to marry. The law may therefore place restrictions on the right to marry, as it does by specifying age limits and prohibiting marriage with certain relatives. And if the State decided to follow United States practice in requiring a blood test as a precondition of marriage, a statute so ordaining would doubtless pass constitutional muster. But any such restriction must be reasonable. So, for example, a statute setting up a minimum age for marriage higher than the voting age of eighteen, would be open to challenge on this basis. So too might some of the law’s current prohibitions on marriage between relatives – e.g. those between first cousins or between certain persons related by affinity rather than consanguinity.”
Currently there is no civil law restriction on the marriage of first cousins. It is clear from a footnote that the reference to marriage between first cousins in the above passage was prompted by the recommendation in the Report on Nullity of Marriage, at p. 133, that marriages between first cousins be permitted.
The only evidence led by the plaintiffs was evidence of their personal circumstances, which I have outlined at the outset. No evidence was adduced on behalf of the defendants. So the court has no empirical evidence on the broad issue as to whether restricting a person’s choice of marriage partner in the manner provided for in s. 3(2) is or is not required in the interests of the common good. However, the plaintiffs put before the court without objection from the defendants’ counsel, save the caveat that the court is not bound by them, two documents in which State bodies have considered whether prohibitions on marriage based on affinity should be retained or repealed: the Report on Nullity of Marriage already referred to; and Discussion Paper No. 5, dated September, 2004 of the Inter-departmental Committee on Reform of Marriage Law. I propose considering the views expressed in those documents, although, of course, they cannot be in any way determinative of the issue in this case.
The Law Reform Commission, having noted that policy considerations regarding prohibitions based on affinity are somewhat different from those affecting consanguinity, recorded the arguments against and for the retention of the existing prohibitions.
On the contra side, the first argument was that there are no genetic reasons why persons related by affinity should not marry. Secondly, an inconsistency in the policy affected by the existing prohibitions was adverted to. The example given was that a man may marry his sister in law, when his wife is dead, but not persons related by marriage who are far more distantly related to him. The third argument was that the proposed legislation, in the context of which the issue was being considered, legislation on nullity of marriage, “should place no necessary(sic) obstacles in the path of those who wish to marry”. On this point it was noted that, if the prohibitions regarding affinity are regarded as being based primarily “on religious considerations of a somewhat refined nature”, this might not be considered as sufficient justification for their inclusion in the proposed legislation, since the legislation would not require members of any religious denomination to marry anyone in circumstances where the denomination in question would not regard the marriage as valid.
The first argument cited by the Law Reform Commission in favour of the retention of the prohibitions based on affinity was that they are based on an historical cultural tradition, which, it was stated, had the general support of religious denominations, so that, unless a convincing case could be made in favour of change, it might be argued that the existing approach should not be disturbed. The second was that no concern had been expressed in public discussion about the existing prohibitions and it was noted that this was a factor which had weighed heavily with the Law Commission in England in its deliberations on the same question. The third argument, to which the most importance was attached, was that it might be argued that the prohibitions have a sound social justification. The Law Reform Commission addressed the third argument on two fronts. The first was addressed by reference to a submission made by the Archbishop of Canterbury, on behalf of the Church of England, to the Royal Commission on Marriage and Divorce, which is quoted in its Report – 1951-1955 (Cmd. 9678, 1956). The argument advanced by counsel for the defendants in this case in support of their contention that the prohibition contained in s. 3(2) is required in the interest of the common good mirrors the content of that submission to which I will refer later, which, it is noted in the Report on Nullity of Marriage,was not accepted by the Royal Commission. Secondly, it addressed what it considered to be the more serious policy issues, which concern permitting marriages between step parents and step children.
The conclusion which the Law Reform Commission came to was that the best approach would be for the law to abolish all prohibitions based on affinity. It recommended that that course be adopted, subject to the proviso that no religious denomination be required (emphasising required) to marry any persons within the degrees of relationship which are prohibited by the denomination in question.
Before the second document put in evidence by the plaintiffs, Discussion Paper No. 5 of the Inter-Departmental Committee, came into existence, the outright constitutional ban on the enactment of a law providing for the granting of a dissolution of marriage, which was contained in Article 41.3.2 of the Constitution between 1937 and 1996, was removed and replaced by a provision that a court designated by law might grant a dissolution of marriage where, but only where, it was satisfied that four conditions set out in the amended Article 41.3.2 were complied with. The jurisdiction of the courts to grant divorce as permitted by Article 41.3.2 is now regulated by the Act of 1996.
It is convenient at this juncture to deal with the plaintiffs’ attack on s. 3(2) founded on the Act of 1996. As I stated in outlining the factual background earlier, the first plaintiff has the benefit of a decree of divorce pursuant to s. 5(1) of the Act of 1996. The effect of the grant of a decree of divorce pursuant to the jurisdiction conferred by the Constitution is that the divorced spouses’ marriage is dissolved and each party to that marriage is free to marry again. That effect flows from the Constitution, although it is expressly affirmed in s. 10(1) of the Act of 1996. As I have indicated earlier, one facet of the plaintiffs’ claim is that the bar on them marrying each other is a breach of s. 10(1) of the Act of 1996. Their counsel argued that s. 10(1) has constitutional pre-eminence as it was enacted in implementation of the amendment of Article 41.3.2. In my view, that argument is misconceived. As a matter of construction of s. 10, in my view, it affirms that the effect of a decree of divorce is to free the former spouses to contract a marriage which is not prohibited by law. The prohibition at issue here is the prohibition contained in s. 3(2). Section 10(1) of the Act of 1996 neither expressly nor implicitly repealed that prohibition and, indeed, it was not suggested by the plaintiffs that it did. Reliance on s. 10(1) of the Act of 1996 does not advance the plaintiffs’ case. The only issue for the court is whether s. 3(2) of the Act of 1907, as amended is inconsistent with the Constitution.
Turning to Discussion Paper No. 5 of the Inter-Departmental Committee, having outlined the views of the Law Reform Commission in the Report on Nullity of Marriage on the prohibitions based on affinity, it pointed out that the introduction of divorce in 1996 has given rise to an anomaly in the law with regard to a woman marrying her divorced husband’s brother or a man marrying his divorced wife’s sister; the prohibition on such marriage survives, although a man may marry his deceased wife’s sister and a woman may marry her deceased husband’s brother by virtue of the provisions of the Act of 1907 and the Act of 1921. It was noted in the discussion paper that these contradictory rules are giving rise to difficulties in the application of the law where capacity to marry is being established.
In the discussion paper, as one would expect given the nature of the document, the Inter-Departmental Committee did not adopt a position. Instead, having noted that it was a sensitive and complex issue, it sought views on whether prohibitions on marriage based on affinity should be retained and what, if any, amendments should be made to the current list. It outlined the three options which appear to be available:-
(1) that there should be no change to the current restrictions;
(2) lifting some of the current restrictions in order to bring the regulations in the State more into line with those of other jurisdictions, including Northern Ireland (where the prohibition contained in s. 3(2) no longer applies); and
(3) abolishing all restrictions based on degrees of affinity, in line with the recommendations of the Law Reform Commission.
There are two other comments in the discussion paper which are worth noting. The first is the suggestion that the absolute prohibition on a person marrying his or her divorced spouse’s brother or sister may be perceived to be unduly restrictive or construed as discriminatory. The second is a reference to a decision of this court in 2001 granting an order that a marriage between a woman and her deceased aunt’s husband was lawful and validly registered, the case having been taken by the woman as she had concerns regarding the effect of the laws of affinity in the Act of 1537 on the validity of her marriage. Counsel for the plaintiffs also referred to this decision, although the court was not given any information in relation to it save as is to be found in the discussion paper.
The plaintiffs also relied on a recent judgment of the European Court of Human Rights in B. and L. v. United Kingdom [2005] E.C.H.R. 584. As I have stated earlier, the initiation of these proceedings predated the coming into operation of the Act of 2003 so that the fact that the plaintiffs did not seek a declaration of incompatibility of the impugned provisions with the State’s obligations under the Convention is explicable. During the hearing of the action counsel for the defendants made it clear that an application to amend the pleadings to pursue such relief would be resisted. The pleadings were not amended. While, accordingly, the interpretation or application of the Convention provisions is not in issue, so that the court is not obliged to take account of the principles laid down in the judgment of the European Court of Human Rights, as would otherwise be the case by virtue of s. 4 of the Act of 2003 if Convention rights were invoked, in my view, the reasoning of the European Court of Human Rights in B. and L. v. United Kingdom is persuasive in the context of the issue before the court.
In B. and L. v. United Kingdom [2005] E.C.H.R. 584, the applicants invoked articles 12 and 14 of the Convention. Article 12 provides:-
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
The applicants, L. and B., were father in law and daughter in law. L.’s former husband, C., from whom she was divorced in 1997, was the son of B. by his first marriage which ended in divorce in 1987. L. and C. had a son together, W., who was a grandson of B. The United Kingdom legislation which prevented L. and B. marrying was the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986. The Act of 1949 had contained an absolute prohibition on marriage between a former father in law and a daughter in law. However, s. 1(5) of the Act of 1986 had exempted from voidness such a marriage if both parties had reached the age of 21 at the time of the marriage and the marriage was solemnised after the death of both the son and the mother of the son. Further, exemption from the statutory prohibition on such a marriage could be procured by private Act of Parliament, although no such Act had been sought or passed since 1987.
On the application of article 12 generally, the European Court of Human Rights stated as follows, at para. 34:-
“Article 12 secures the fundamental right of a man and a woman to marry and to found a family. The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the contracting states but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired …”
As to its application to the circumstances of B. and L., the court stated, at para. 35:-
“In the present case, the applicants live together in a permanent and longstanding relationship but are unable to obtain the legal and social recognition of that relationship by marrying due to the bar on the marriage between parents-in-law and children-in-law. That the marriage could take place if both their former spouses died, a hypothetical situation impossible to foretell and on the whole unlikely as children tend to outlive their parents, does not remove the impairment of the essence of their right. Nor does the possibility of applying to Parliament. This is an exceptional and relatively costly procedure which is at the total discretion of the legislative body and subject to no discernable rules or precedent.”
The court observed that the legislative bar on the marriage in question was aimed at protecting the integrity of the family (preventing sexual rivalry between parents and children) and preventing harm to children who may be affected by the changing relationships of the adults around them and commented that these were legitimate aims. Nonetheless, the court observed that the bar does not prevent the relationships occurring, as the case before it illustrated, and it could not be said that the ban prevented any alleged confusion or emotional insecurity to W.
The court concluded that the ban violated article 12 of the Convention. As counsel for the defendants stressed, an important factor which informed that conclusion was that under United Kingdom law there was not an absolute prohibition, in that an exemption could be procured by private Act of Parliament. The court was of the view that the inconsistency between the stated aims of the incapacity and the waiver applied in some cases undermined the rationality and logic of the measure. The court was not impressed by the argument advanced on behalf of the United Kingdom government that exceptions are only made where no harm will ensue. It stated that there had been no indication of any detailed investigation into family circumstances in the parliamentary procedure. If there was, it would view with reservation a system that would require a person of full age and possession of his or her mental faculties to submit to a potentially intrusive investigation to ascertain whether it was suitable for them to marry.
By analogy to the factual circumstances with which the European Court of Human Rights was concerned, the plaintiffs submitted that the prohibition on their marriage was not absolute but was a temporal prohibition of indefinite duration which will cease on the death of the former husband, assuming they survived him. As such, they submitted, it injured the substance of their right to marry and, viewed objectively, it was unreasonable and disproportionate and amounted to a paternalistic attitude which did not exist to protect any public policy interest.
The defendants’ defence of the consistency of s. 3(2) of the Act of 1907, as amended with the Constitution was founded on two constitutional imperatives: the State’s obligation to promote the common good, a concept referred to in the Preamble; and the State’s guarantee to protect the family and to guard with special care the institution of marriage as provided for in Article 41. As I have stated, the defendants did not adduce any evidence and, accordingly, their defence was based entirely on legal argument.
The argument which resonated the views expressed by the Archbishop of Canterbury more than half a century ago addressed the perceived danger to the institution of marriage by permitting marriage within close degrees of affinity. The argument was based on a premise with which nobody could disagree, that marriage ought to be a secure, stable unit. It was developed on the basis of an assertion with which, I suspect, many would disagree, that a person who marries into a family adopts as his or her own the siblings of the other spouse. A barrier should exist to the possibility of marriage with those siblings. Permitting marriage between a divorced spouse and a sibling of the other spouse would undermine the stability of the marital unit, it was urged.
In attempting to reconcile the changes effected by the Acts of 1907 and 1921, which permitted a marriage with a deceased spouse’s sibling, with the proposition that sexual rivalry between siblings was to be excluded, counsel for the defendants resorted to the arguments advanced by the Archbishop of Canterbury in distinguishing death from divorce. At the heart of the perceived distinction is the rather disturbing suggestion that it is not likely that a spouse or a sibling of the other spouse would actively desire (still less seek to cause) the death of the other spouse, whereas divorce can be planned for and brought about. The point made by the Archbishop of Canterbury was that a partner released by death may legitimately, and without threat to the family stability, seek to marry the deceased partner’s sibling, whereas, where divorce is always a possibility with the affections for the spouse’s sibling being capable of fulfilment, such affections may cease to be regarded as altogether improper and may be allowed to develop instead of being suppressed. The Archbishop of Canterbury alluded to the special danger prevailing in the early 1950s in the many cases where a married couple was living with in laws.
Counsel for the defendants characterised the effect of the continued prohibition to the present time as providing a strong emotional barrier by encouraging the feeling that siblings in law are in the same relationship as natural brothers and sisters and so that there is less likelihood of marriage being undermined. There is no evidence to support that proposition. I doubt if it is sound at a time when the stigma which formerly attached to cohabitation outside marriage is disappearing. In this context, the evidence of the plaintiffs, who have cohabited for twenty years is of some, if limited, relevance. The second plaintiff testified that after he went to live with the first plaintiff he encountered “friction” with one family member but that lasted only about six months and there was also a certain “embarrassment” and that lasted “for a while”. However, he made it clear that he does not sense any stigma now.
Counsel for the defendants also argued that the protection of the institution of marriage and of the family necessitates consideration of the position of the children of the marriage as part of the family. It was submitted that, if the prohibition in issue did not exist, the children of the marriage could be exposed to confusion, split loyalties, turmoil and hurt. The death situation, for example, where the father dies and the mother marries his brother, is distinguishable from the divorce situation because, it was submitted, that risk is not present. The same competing societal interests are not present. Again, there is no evidence to support the different consequences which it was argued flow from the different situations. Whether the circumstance of a mother marrying her divorced husband’s brother during the former’s lifetime has the potential for creating more confusion and hurt for her children than the circumstance in which after his death, and possibly with divorce intervening, such marriage occurs, or indeed than any circumstance in which a mother remarries, is not an issue on which one can readily, or should, make an assumption. However, even if it has, as the European Court of Human Rights pointed out, the bar on marriage does not prevent the relationship occurring. Moreover, the evidence of the plaintiffs’ circumstances is of some, if limited, relevance in that it is reasonable to infer on the evidence that the plaintiffs have successfully reared the first plaintiff’s children without subjecting them to confusion and hurt. Finally, the restriction contained in s. 3(2) applies irrespective of whether there are children of the first marriage.
The plaintiffs are only in a position to pursue the remedies they pursue in these proceedings because of the amendment of the Constitution in 1996, which conferred the jurisdiction which enabled the Circuit Court to dissolve the first plaintiff’s marriage. The effect of the exercise of that jurisdiction in favour of the first plaintiff was that she became free to re-marry, an effect which is affirmed by s. 10(1) of the Act of 1996. The prohibition contained in s. 3(2) which, if it continues in force, renders unlawful a marriage between the first plaintiff and the second plaintiff during the lifetime of the former husband is a restriction on the constitutional right of each of the plaintiffs to marry. Adopting the terminology of the European Court of Human Rights, it is an impairment of the essence of the right of each because it prevents each marrying her and his chosen partner. The question for the court is whether the plaintiffs have established that that restriction is not justified as being necessary in support of the constitutional protection of the family and the institution of marriage or more generally having regard to the requirements of the common good. I consider that they have.
More than a decade before the introduction of divorce, the Law Reform Commission, by recommending the abolition of all of the prohibitions based on affinity, implicitly recognised that there was no such justification. In my view, the arguments advanced in defence of the current necessity for the specific prohibition based on affinity at issue here, on the basis of reason and common sense, fail to demonstrate that the family or the institution of marriage or the common good would be endangered if the restriction did not exist. From an objective standpoint, there is no basis for concluding that any benefit is conferred by the existence of the restriction, so that, in my view, the question of proportionality does not arise. Nor is there any basis for concluding that there is any rational justification for the existence of the restriction.Accordingly, I am of the view that the impugned provision is inconsistent with the plaintiffs’ right to marry under Article 40.3.1 of the Constitution.
Other constitutional rights invoked by the plaintiffs
By way of general observation, I am of the view that the plaintiffs did not develop their challenge to the constitutionality of s. 3(2) based on inconsistency with Articles 40.1, 40.3.2 and 40.6.1 in a manner which facilitates a meaningful analysis without pronouncing on matters for which there is no evidential foundation or which were not fully argued. The main thrust of the challenge was that the provision infringed their right to marry and rights which flowed from being married, which included the right to form a constitutionally recognised family and the right to marital privacy.
In relation to the application of Article 40.1, which guarantees equality before the law for all citizens, I have difficulty in identifying the discrimination which the plaintiffs contend flows from the continuance of the restriction imposed by s. 3(2) without making a value judgment about some other restriction or non-restriction on the right to marry. It is common case that that provision is gender neutral. It is obviously also nationality, race and creed neutral. It prohibits every citizen from marrying a sibling of his or her divorced spouse. The case made by the plaintiffs grounded on Article 40.1 is that an anomalous position arises because the law permits marriage in the case of closer relations, for example, between cousins who share consanguinity while prohibiting marriage of persons who are genetically strangers to each other. It was submitted that that was self evidently irrational and, as such, a breach of the guarantee of equality contained in Article 40.1. There is quite a leap from “anomalous” to “evidently irrational”. Discrimination is not a necessary corollary of irrationality. The difference of treatment by the law which the plaintiffs asserted, as I understand it, is the fact that a person who wishes to marry his or her cousin is not prohibited from doing so, whereas a person who wishes to marry the sibling of his or her divorced spouse during the lifetime of the latter is prohibited from doing so. It is not possible, on the basis of the evidence adduced and the arguments advanced in this case, to make a finding on whether that difference of treatment is irrational or of an order which infringes Article 40. 1, as distinct from finding, as I have done, that the prohibition contained in s. 3(2) is irrational.
In B. & L. v. United Kingdom [2005] E.C.H.R. 584, it was argued that the statutory provision at issue was incompatible with article 14 of the Convention, which provides that the enjoyment of the rights and freedom set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political view or opinion, national or social origin, association with a national minority, property, birth or other status. The European Court of Human Rights found that no separate issue arose under article 14 in conjunction with article l2, given its finding of a violation of article 12. Similarly, having found that s. 3(2) is inconsistent with Article 40.3.1, I am not satisfied that the plaintiffs have established that a separate issue arises under Article 40.1.
The case made by the plaintiffs that their property rights protected by Article 40.3.2 are infringed by the prohibition on their marriage was that, notwithstanding that they are cohabiting in circumstances analogous to that of a husband and wife, they do not have the income and capital tax entitlements (including exemptions from capital acquisitions tax), rights under social welfare legislation and succession rights provided for in the Succession Act 1965 enjoyed by married couples. None of the relevant statutory provisions was opened nor was it demonstrated how the provisions variously impact on married couples and cohabiting couples. Accordingly, I do not consider it prudent to express any view on whether the impact of taxation, social welfare or succession law on the plaintiffs as a cohabiting couple infringes their rights under Article 40.3.2.
Finally, while the plaintiffs invoked Article 40.6.1 and, in particular, the guarantee of liberty for the exercise, subject to public order and morality, of the right to form associations, they did not develop that ground at all. It is difficult to see how they could have.
Order
There will be a declaration that s. 3(2) of the Act of 1907, as amended by s. 1(2)(b) of the Act of 1921, is inconsistent with the Constitution. The other declarations sought by the plaintiffs are not necessary to protect their rights.