A divorced woman and her former husband's brother who wish to marry each other have brought a High Court challenge to early 20th-century legislation which, they claim, prohibits such a marriage.
The action has been brought against the State by Maura O'Shea (44), of Ballybraher, Ballycotton, Co Cork, and Michael O'Shea (49), also of Ballybraher.
When the case was mentioned before Ms Justice Mary Laffoy yesterday by Niall O'Driscoll, for the plaintiffs, the judge said she would adjourn it to the next court list to fix dates for hearing. It is expected the case will be heard in the next law term.
Ms O'Shea married John O'Shea, brother of the plaintiff, in the Catholic church at Ladysbridge, Co Cork, on October 23rd, 1980. The couple separated in 1985 and were divorced in May 2000. John O'Shea is still alive.
In their claim, Ms O'Shea and Mr O'Shea say they wish to marry each other but are prevented from doing so by certain provisions of the Deceased Wife's Sister's Marriage Act, 1907, as amended by the Deceased Brother's Widow's Marriage Act, 1921.
Because of the disputed provisions of those Acts, the plaintiffs claim their freedom of association and their right to contract marriage with each other have been wrongfully interfered with.
They also claim that, because the disputed provisions were in force immediately prior to the coming into force of the Constitution, the provisions are therefore void and inoperable.
The couple say their solicitor wrote to the Attorney General in August 2001 asking that legislation be introduced to correct the anomaly of the disputed legislation, but no such legislation had been introduced.
This failure had caused them anxiety and upset, deprived them of their legal rights under the Succession Act, 1965, and financially prejudiced them as they were unable to avail of the tax allowances for married people, it is claimed.
In their proceedings, they are seeking declarations that the relevant provisions of the 1907 and 1921 Acts are unconstitutional.
The State has denied the claims.
