Maura O'Shea and Michael O'Shea (plaintiffs) v Ireland and Attorney General (defendants). Constitution - Plaintiffs refused permission to marry after the first plaintiff obtained a decree of divorce from the second plaintiff's brother - Whether the prohibition in the Act of 1907 is a restriction on the constitutional right to marry - Whether that restriction is justified having regard to other constitutional protections or the common good - Deceased Wife's Sister's Marriage Act 1907 - Deceased Brother's Widow's Marriage Act 1921
The High Court (Miss Justice Laffoy); judgment delivered on October 17th 2006.
The prohibition contained in s.3(2) of the Deceased Wife's Sister's Marriage Act 1907, which, if it continues in force, renders unlawful a marriage between the a woman and the brother of her former husband, during the lifetime of that former husband, is a restriction on the constitutional right to marry. It is an impairment of the essence of the right of each because it prevents each marrying her and his chosen partner. The 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 common good.
The High Court so held in declaring that s.3(2) of the Act of 1907, as amended by s.1 of the Act of 1921 is inconsistent with the Constitution.
David J. Hegarty SC, Maire R. Whelan SC with Helen Boyle BL for the plaintiffs; Jeremy Maher SC with Sinead Ni Chulachain BL for the defendants.
Miss Justice Laffoy commenced her judgment by setting out the factual background to the case. The first plaintiff married her former husband in October, 1980. There were two children of that marriage, now aged 25 and 20 years of age. In 1985, the first plaintiff and her former husband separated permanently. A decree of divorce was granted in May, 2000.
About six months after the former husband left, a relationship developed between the first and second plaintiffs and they have cohabited since. They brought up the two children of the first plaintiff together. There was undisputed evidence that the presence of the second-named plaintiff in the home did not create confusion for the children who knew that the former husband was their father.
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 December 6th, 2001, from the General Register Office, of the provisions of the Acts of 1907 and 1921 and, in particular, that the Act of 1921 expressly prohibits the marriage of a man with a divorced wife of his brother or half-brother.
The plaintiffs still desired to marry each other and intended to do so if they were successful in the proceedings.
In their statement of claim the plaintiffs 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 were deprived of the ability to marry each other. In particular, they pleaded that their rights to marry, to freely associate with persons of their choice and to form an established marital family had not been vindicated or upheld.
Miss Justice Laffoy said that as the plaintiffs sought to impugn not only s.3(2) of the Act of 1907, but also any rule of law prohibiting their marriage, it was necessary to ascertain the current state of the law on prohibition of marriage based on affinity, that was to say, relationship through marriage.
A useful summary of the law is to be found in the Law Reform Commission Report on the Nullity of Marriage (LRC 9-1984). 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.
Miss Justice Laffoy then traced the development of the law starting with the Marriage Act 1537, through various amending legislation to the Marriage Act 1835 and up to the Act of 1907 as amended by the Act of 1921.
Miss Justice Laffoy said that the essence of the plaintiff's case was 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 a matter of construction of Article 50, given that the Constitution had 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 the opinion of Miss Justice Laffoy, the real issue was whether s.3(2) was 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 was common case that, as a provision of a pre-1937 statute, the statutory provision in issue did not enjoy a presumption of constitutionality. As to the onus which lay on the plaintiffs to establish that s.3(2) was 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 IR 36, where the constitutionality of a statute of the British parliament was at issue.
Miss Justice Laffoy said that in her view, in order to discharge the burden of proof the plaintiffs must show that s.3(2) infringed 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 arose was whether the impugned provision is within the constitutionally permitted bounds of the limitation of such right, it was for the plaintiffs to establish that it was 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 was on the plaintiffs to establish irrationality or disproportionality.
In addressing the core issue, which was whether the plaintiffs had established that the law which prohibited them marrying each other, s.3(2), was inconsistent with the Constitution, the court first considered the extent to which the right to marry, which in the court's view subsumed the right to form a constitutionally recognised family, was protected by the Constitution and whether the prohibition contained in s.3(2) infringed that right.
Miss Justice Laffoy said that although 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 ILTR 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 only evidence led by the plaintiffs was evidence of their personal circumstances. No evidence was adduced on behalf of the defendants.
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. The first argument was that there was no genetic reason why persons related by affinity should not marry. Secondly, an inconsistency in the policy effected by the existing prohibitions was adverted to.
The third argument was that the proposed legislation, in the context of which the issue was being considered, legislation on the nullity of marriage, "should place no necessary (sic) obstacles in the path of those who wish to marry". 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 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.
Miss Justice Laffoy said that the plaintiffs also relied on a recent judgment of the ECHR in B and L v United Kingdom in which final judgment was delivered on December 13th, 2005. In B and L the applicants invoked articles 12 and 14. Article 12 provides: "Men and women of marriageable age shall have the right to marry and to found a family, according to the national laws governing the exercise of this right."
The applicants 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 contained an absolute prohibition on marriage between a former father-in-law and a daughter-in-law, although such a marriage would be exempted from voidness 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.
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 ECHR concluded that the ban violated Article 12 of the Convention. As counsel for the defendants stressed, an important factor which informed the 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.
By analogy to the factual circumstances with which the ECHR was concerned, the plaintiffs submitted that the prohibition on their marriage is not absolute but is a temporal prohibition of indefinite duration which will cease on the death of the former husband, assuming they survive him.
As such, they submitted, it injures the substance of their right to marry and, viewed objectively, it is unreasonable and disproportionate and amounts to a paternalistic attitude which does not exist to protect any public policy interest.
Miss Justice Laffoy said that the defendants' defence of the consistency of s.3(2) 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. 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 Miss Justice Laffoy suspected 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 as to the possibility of marriage between 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.
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.
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. Miss Justice Laffoy said that there was no evidence in the instant case to support the submissions.
Miss Justice Laffoy said that the plaintiffs are only in a position to pursue the remedies they pursue in these proceedings because of the amendment of the Constitution of 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 remarry.
Miss Justice Laffoy said that the prohibition contained in s.3(2) which, if it continues in force, renders unlawful a marriage between the first and second plaintiff during the lifetime of the former husband, was a restriction on the constitutional right of each of the plaintiffs to marry.
"Adopting the terminology of the ECHR, 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."
Accordingly, Miss Justice Laffoy was of the view that the impugned provision was inconsistent with the plaintiffs' right to marry under Article 40.3.1 of the Constitution and ordered that there would be a declaration to that effect.
Solicitors: Don O'Connor & Co. (Cork) for the plaintiffs; Chief State Solicitor for the defendants.
P.J. Breen, barrister