Maura O'Shea and Michael O'Shea v Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 17 October 2006
• Neutral Citation: [2006] IEHC 305
• Court: High Court
• Docket Number: [2003 No. 13349 P],[No 13349 P/2003]
• Date: 17 October 2006

[2006] IEHC 305

THE HIGH COURT

[No 13349 P/2003]

O'SHEA v IRELAND & AG

BETWEEN

MAURA O'SHEA AND MICHAEL O'SHEA

PLAINTIFFS

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

FAMILY LAW (DIVORCE) ACT 1996 S5(1)

DECEASED WIFE'S SISTER'S MARRIAGE 1907 S3(2)

DECEASED BROTHER'S WIDOW'S MARRIAGE ACT 1921 S1(2)(B)

CONSTITUTION ART 50

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

FAMILY LAW (DIVORCE) ACT 1996 S10(1)

LRC REPORT ON NULLITY OF MARRIAGE LRC 9/1984

STATUE LAW REVISION (PRE UNION STATUTES) ACT 1962

BOOK OF LEVITICUS CHP 18

MARRIAGE ACT 1597 28 HEN 8 C2 S2

MARRIAGE ACT 1597 28 HEN 8 C2 S7

MARRIAGE ACT 1542 33 HEB 8 C6

SHORT TITLES ACT 1962 SCH 1

SHORT TITLES ACT 1962 S1(2)

3 & 4 PH & M C8

2 ELIZ C1 S2

MARRIAGE ACT 1835 S2

DECEASED BROTHER'S WIDOW'S MARRIAGE ACT 1921 S1

DECEASED BROTHER'S WIDOW'S MARRIAGE ACT 1921 S3(1)

MATRIMONIAL CAUSES ACT 1857

DECEASED BROTHER'S WIDOW'S MARRIAGE ACT 1921 S3(2)

CONSTITUTION ART 73

KELLY THE IRISH CONSTITUTION 4ED PAR 7.6.97

NORRIS v AG 1984 IR 36

CASEY CONSTITITUTIONAL LAW IN IRELAND 3ED 466

DONOVAN v MIN JUSTICE 1951 85 ILTR 134

RYAN v AG 1965 IR 294

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40

CONSTITUTION ART 40.3

F (T) v IRELAND 1995 1 IR 321

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(F)

CONSTITUTION ART 41

INTERDEPARTMENTAL COMMITTEE ON REFORM OF MARRIAGE LAW DISCUSSION PAPER NO 5 SEPTEMBER 2004

ROYAL CMSN ON MARRIAGE & DIVORCE REPORT 1951-1955

FAMILY LAW (DIVORCE) ACT 1996 S10

B & L v UK ECHR 13.12.2005

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 12

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14

MARRIAGE ACT 1949 (UK)

MARRIAGE (PROHIBITED DEGREES OF RELATIONSHIP) ACT 1986 S1(5) (UK)

CONSTITUTION ART 40.6.1

SUCCESSION ACT 1965

-[2006] IEHC 305; [2007] 1 ILRM 460

Facts: The first named plaintiff was previously married to the second named plaintiff's brother. However, following the separation of the first named plaintiff and her husband she commenced a relationship with the second named plaintiff. The first named plaintiff subsequently obtained a decree of divorce and the plaintiffs decided to get married. The plaintiffs instituted these proceedings after they learned that they were prohibited by law from marrying each other. The plaintiffs sought a declaration that section 3(2) of the Act of 1907, as amended by section 1(2)(b) of the 1921 Act, which prohibited the marriage of a man with a divorced wife of his brother or half brother, was repugnant to the provisions of the Constitution of Ireland. The plaintiffs submitted that those provisions of law were not carried over by Article 50 of the Constitution.

Held by Laffoy J. in favour of the plaintiffs: That the plaintiffs established that the prohibition contained in section 3(2), which would render their marriage to each other during the lifetime of the first plaintiff's former husband unlawful constituted a restriction on their constitutional right to marry and further that that restriction was not justified as being necessary to support the constitutional protection of the family and the institution of marriage or the requirements of the common good. Consequently, the impugned provision was inconsistent with the plaintiffs' right to marry under Article 40.3.1 of the Constitution and they were entitled to a declaration to that effect.

Reporter: L.O'S.

1 Miss Justice Laffoydelivered on 17th October 2006.

Factual background

2 On 23 ^rd October 1980, the first plaintiff, who was born on 12 ^th May 1961, married John O'Shea (the former husband), who was born on 29 ^th January 1957. There were two children of the marriage, a girl, who is now twenty five years of age, and a boy, who is now twenty two years of age.

3 In 1985 the first plaintiff and the former husband separated permanently. By order of the Circuit Court made on 25 ^th 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 Act of 1996).

4 The former husband is still alive. He has remarried and there are two children of that marriage.

5 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 livedthere 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 27 ^th 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.

6 The second named plaintiff has never married.

7 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 6 ^th December 2001, from the General Register Office, of the provisions of the Deceased Wife's Sister's Marriage Act 1907 (the Act of 1907) and the Deceased Brother's Widow's Marriage Act 1921 (the Act of 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.

8 The plaintiffs still desire to marry each other and intend to do so if they are successful in these proceedings.

The Claim

9 These proceedings were initiated by a plenary summons which issued on 1 ^st December 2003. I mention that fact because the initiation of the proceedings predated the coming into operation of the European Convention on Human Rights Act 2003 (the Act of 2003), which came into operation on 31 ^st December 2003. While the plaintiffs have not invoked the European Convention on Human Rights (the Convention) in their pleadings, as will appear later, the plaintiffs have relied on jurisprudence of the European Court of Human Rights (ECHR) 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.

10 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 propertyrights), 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.

11 The reliefs claimed by the plaintiffs include the following:

12 (1) A declaration that s. 3(2) of the Act of 1907, as amended by s. 1(2)(b) of the Act of 1921, is repugnant to the provisions of Bunreacht na hÉireann;

13 (2) A declaration that any rule of law prohibiting the plaintiffs' right to marry each other is repugnant of Bunreacht na hÉireann;

14 (3) A declaration that a marriage entered into by the plaintiffs with each other will be lawful and valid; and

15 (4) A declaration that the registration of the plaintiff's marriage to each other will be a marriage validly registered.

16 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.

17 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' rights to marry each other, it is necessary to ascertain thecurrent state of the law on prohibition of marriage based on affinity, that is to say, relationship through marriage.

18 A useful summary of the law is to be found in the Law Reform Commission " Report...