The Marriage Act 2015 allows couples to marry without distinction as to their sex. It followed the amendment to the Constitution passed by referendum on 22 May 2015, inserting Article 41.4 of the Constitution. The Referendum provided that “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”.
The Act commenced on 16 November 2015. This date is relevant for certain purposes under the legislation.
The Civil Registration Act 2004 was amended to remove the impediment preventing persons of the same sex from marrying. It is an impediment to same-sex marriage that one of the parties is married or the civil partner of another.
Declarations to be made by the parties to a marriage within the ceremony were amended to include cases in which couples are of the same sex. The couple can declare that each accepts the other as “a husband, a wife or a spouse, as the case may be”.
It is not an impediment that both parties are already civil partners of each other. Therefore, couples in a civil partnership can marry one another without having to dissolve their civil partnership. Once civil partners marry one another, their civil partnership will be dissolved from the date of their marriage.
“Where the parties to a subsisting civil partnership with each other marry each other marry each other, a will made in contemplation of entry into the civil partnership or during the civil partnership by a testator who is a party to the marriage shall not be revoked by that marriage and a reference in the will to the testator’s civil partner shall be construed as a reference to the testator’s spouse.”.
Consanguinity & Affinity
There is an impediment to the marriage of a same-sex couple if they fall within the prohibited degrees of consanguinity or affinity. The impediments which prevent couples of the opposite sex from marrying one another if they are within the prohibited degrees of relationship, either on the grounds of consanguinity (where the couple are related by blood) or affinity (where the couple are related by marriage), also apply to marriages between couples of the same sex, with appropriate modification to take account of the sex of the parties.
A marriage purported to be solemnised between a same-sex couple who are within the prohibited degrees of relationship, either on the grounds of consanguinity or affinity, is void.
Solemnisers not Compelled
The legislation is not to compel a religious body to recognise a particular form of marriage ceremony for the purpose of the Civil Registration Act 2004. That legislation provides that a religious solemniser shall not solemnise a marriage in accordance with a form of ceremony which is not recognised by the religious body of which he or she is a member.
Nothing in the legislation or any other legislation is to compel a religious solemniser to solemnise a marriage which involves a form of marriage ceremony that is not recognised by the religious body of which he or she is a member.
Civil Partnership Closed
Civil partnerships are no longer open since six months after the commencement of the Marriage Act 2015 (16th May 2016). Same-sex marriage is available instead.
Civil partnerships contracted abroad later than 16 May 2016 are not recognised as civil partnerships in Ireland.
Where a civil partnership registered in the State has been dissolved because the couple has now married, the dissolution of the civil partnership will be recorded on the register of civil partnerships.
Where a couple has notified the registrar of their intention to enter a civil partnership prior to the closing of the civil partnership legislation (May 2016), the notification could change into a notification of their intention to marry.
Foreign Same-Sex Marriages
Marriages contracted abroad between couples of the same sex are to be recognised as marriages in Ireland, subject to conditions The sex of the parties to a marriage will not preclude a marriage contracted abroad from being recognised as a marriage in Ireland.
A marriage contracted abroad between two persons of the same sex will be recognised as a marriage in Ireland from the date either of commencement of the Marriage Act 2015 (16 November 2015) or the date of their marriage, whichever is the later.
A marriage contracted abroad between two persons of the same sex is not precluded from being recognised as a marriage in Ireland, even if it has been recognised before the 2015 Act as a civil partnership under a recognition order made by the Minister for Justice and Equality. Orders under section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 set out the legal relationships that are recognised as civil partnerships in Ireland.
A marriage contracted abroad between two persons of the same sex shall not be recognised as a marriage in Ireland if already dissolved. Where a married couple have begun to live apart at the time that their marriage becomes recognised in Ireland, any such period or periods will be counted as beginning on the date from which they began to live apart, even if that was prior to the recognition of their legal relationship as a marriage.
Nothing in the 2015 Act is to be interpreted as “validating, as against creditors of a spouse (in this section called the ‘first-mentioned spouse’), any gift, by the first-mentioned spouse to his or her spouse, of any property which, after such gift, continues to be in the order or disposition or reputed ownership of the first-mentioned spouse or any deposit or other investment of moneys of that first-mentioned spouse made by or in the name of his or her spouse in fraud of the first-mentioned spouse’s creditors, and any such moneys so deposited or invested may be followed as if this Act had not been passed.”.
A couple may rescind a decree of judicial separation where they have reconciled and are now cohabiting. This applies to a situation in which the cohabiting spouses are of the same sex as well as of the opposite sex.
The 2015 Act amends the legislation on donor-assisted reproduction to provide that the spouse of a woman having a child through donor-assisted human reproduction may be female and therefore replaces certain references to “husband” with references to “spouse”.
The 2015 Act provides for the removal of the requirement in the Gender Recognition Act 2015 that a person seeking a Gender Recognition Certificate must be single. The provisions in relation to the spouses’ evidence apply to same-sex spouses.
Where a child has been adopted by both spouses of a same-sex couple, both spouses are automatically guardians of a child that they have adopted jointly. Where one of the spouses dies, the surviving spouse will be the child’s guardian, either on his/her own or jointly with a guardian appointed either by the deceased spouse or by the court.
This is to ensure that a female second parent, who is married to the child’s birth mother (i.e. where a child has been born to a female same-sex married couple through donor-assisted human reproduction), is automatically a guardian of the child.
The Child Care Act gives the Court power to adjourn proceedings, under various pieces of family legislation, to direct the Child and Family Agency to undertake an investigation of the child’s circumstances. The 2015 Act extends this power to adjourn proceedings under the 2010 Act to reflect that there may be dependent children of civil partners.
A range of employment legislation has been amended to equalise the position of spouses and civil partners. A civil partner or cohabiting male same-sex couple may qualify for adoptive leave. A female second parent may have the same rights to maternity leave and parental leave as a father.
The Maternity Protection Act provisions applicable to an employed father of a child apply to a parent of a child born as a result of a donor-assisted human reproduction. The provisions that apply to a father’s entitlement to leave when a mother dies during the maternity period are extended to equivalent provisions in respect of donor-assisted human reproduction.
The Adoptive Leave Act, which provides employees who have adopted a child entitlement to leave, was amended by the 2015 Act. Persons who may now adopt are wider under the 2015 Act. Where the adopting couple is of the same sex, one of them will have the entitlement irrespective of the adopter’s sex. Adoptive leave is for up to 24 weeks.
The provisions in respect of parental leave are applicable to parents and adoptive parents. This takes account of the wider category of persons who qualify as parents for the purpose of the 2015 legislation.