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Oh brother, it's been a long hard road to our wedding

Ancient law which banned marriage to in-law is finally overturned by High Court

For 20 years they have loved each other - and now a judge says they can marry.

Maura O'Shea has the wedding dress and yesterday the High Court cleared the way for her to walk down the aisle. The 45-year-old divorced woman is now free to marry her former brother-in-law, her ex-husband's brother, Michael O'Shea (49).

Yesterday the High Court declared unconstitutional an early 20th-century law which prevented them marrying each other while the woman's husband was still alive.

The couple are now also considering bringing an action for damages. Maura O'Shea, of Ballybraher, Ballycotton, Co Cork, was in court as Ms Justice Mary Laffoy gave her decision. The judge ruled that the ban on her marrying her brother-in-law Michael O'Shea, of the same address, while her ex-husband was still alive, was not justified in either protecting the family or the institution of marriage and was therefore unconstitutional.

Cancelled

The prohibition on such marriages was contained in a century-old piece of legislation. The couple only found out about the ban weeks before they were due to be married some years ago. Ms O'Shea had bought her wedding dress and a reception was booked in Ballymaloe House in east Cork.

However, when they were finalising arrangements with a registrar of marriages, he noted they had the same surname and they consequently learned of the laws prohibiting marriages such as theirs.

After the judgment yesterday, a smiling Ms O'Shea said: "I'm delighted, very pleased." She said Michael O'Shea could not attend court as he was working.

She described the court decision as "such a turnaround" after the disappointment of being told they could not marry. Given that last experience, they had not made any plans for a wedding pending the court's judgment. They needed time, she added.

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After judgment was delivered, the judge adjourned the case for three weeks to allow the parties to consider the decision. The couple had also sued for damages and that aspect of the case will be considered later.

Ms O'Shea had married John O'Shea, brother of Michael, in the Catholic Church at Ladysbridge, Co Cork, on October 23, 1980. The couple had two children, then they separated around January 1985 and were divorced in May 2000.

John O'Shea is still alive, has remarried and has two other children by that second marriage. Ms O'Shea developed a relationship with Michael some six months after separating from her husband and the couple, along with Ms O'Shea's two children by her marriage, have lived together ever since.

Ms O'Shea and Michael were prevented from marrying each other by Section 3.2 of the Deceased Wife's Sister's Marriage Act 1907, as amended by the Deceased Brother's Widow's Marriage Act 1921. Section 3.2 prohibits marriages between a man with the sister or half-sister of his wife during the wife's lifetime or between a woman with the brother or half-brother of her husband during the husband's lifetime.

In her reserved judgment, Ms Justice Laffoy noted that, more than 10 years after divorce was introduced here in 1996, the Law Reform Commission, in recommending the abolition of all prohibitions on marriage based on affinity (relationships by marriage), had implicitly recognised there was no justification for such prohibitions.

In this case, the State had failed to show that any benefit was conferred by the existence of the affinity restrictions or that there was any rational basis for them, the judge said.

Confusion

It was also reasonable to infer, on the evidence, that the couple had successfully reared Ms O'Shea's two children by her marriage without subjecting them to confusion and hurt. The issue was whether Section 3.2 was inconsistent with the Constitution as amended by the people in 1937 and, in particular, as amended by the introduction of divorce in 1996. The regulation of marriages with a brother- or sister-in-law was wholly unnecessary prior to 1996 because of the constitutional ban on divorce.

Section 3.2 was a restriction on the constitutional right of the couple to marry and was not justified as being necessary in support of the constitutional protection of the family, the institution of marriage or the common good, she ruled. Therefore, it was inconsistent with the right to marry under Article 40.3.1 of the Constitution.

She rejected the State's arguments that the prohibition was necessary to protect marriage as a "lifelong" commitment and also to protect children from "undue turmoil and confusion".

She said there was no evidence to support the claim that to allow such marriages could potentially undermine existing marriages and be akin to the State encouraging the development of a sexual interest in the siblings of spouses.

The judge also said that, while the case was brought before the coming into effect here of the European Convention on Human Rights Act 2003, she did not accept the State's argument that the act would not apply to the case.

She stressed her decision was concerned only with the constitutionality of the law prohibiting the couple's marriage and she did not think it prudent to express any view on whether the impact of taxation, social welfare or succession law on the couple as a cohabiting couple infringed their rights under the Constitution.

Earlier, the judge noted the case went back to the English Marriage Act of 1537, passed in the reign of Henry VIII. Rooted in the Book of Levicitus, Chapter 18, the law prohibited marriage between relatives and relatives by marriage in situations when the first marriage was consummated.

She noted Henry VIII's personal, dynastic and political objectives had continued to impinge on the marriage laws. The 1537 Act, she noted, was treated as being in force in Ireland for some centuries.

The 1907 and 1921 acts relevant to the case amended the situation to the effect that marriages of affinity could not occur during the lifetime of either the first husband or wife but could take place on the deaths of either of those.

The justification for the 1907 Act was that a man of moderate means should be entitled to marry his dead wife's sister, where that sister had come into his home to rear his children on account of his inability to pay for domestic help.

The 1921 act came into effect after the end of World War I when the male population of marriageable age had been decimated and many young women had been widowed.

The LRC had pointed out, however, that many marriages must have been contracted under both acts where no such social considerations existed.


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