Saturday, March 04, 2006
By Vivion Kilfeather
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, aged 44, of Ballybraher, Ballycotton, Co Cork, and Michael O’Shea, aged 49, also of Ballybraher, Ballycotton.
Niall O’Driscoll, for the plaintiffs, brought the judge’s attention to a newspaper report which appeared yesterday indicating that the Government had decided that more than 2,000 acts, all over 200 years old, are to be repealed after a consultation process.
When the case was mentioned before Ms Justice Mary Laffoy yesterday by Mr O’Driscoll, the judge said she would adjourn it to the next court list to fix dates for hearing.
Maura O’Shea married John O’Shea in the Catholic church at Ladysbridge, Co Cork, on October 23, 1980. They separated around January 1985 and were divorced in May 2000. John O’Shea is still living.
Maura O’Shea and John’s brother Michael say they wish to marry each other but are prevented 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.
The plaintiffs claim their freedom of association and right to contract marriage with each other has been wrongfully interfered with. They also claim that because the disputed provisions were in force immediately prior to the Irish Constitution coming into force, they are 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, which prohibits their marriage but no such legislation has 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.
They seek declarations that the relevant provisions of the 1907 and 1921 Acts are unconstitutional, and want a declaration that any marriage entered into by the plaintiffs with each other will be lawful and valid. The State has denied the claims.