Couple free to marry as court rules old law invalid

A DIVORCED woman and her ex-husband’s brother, who have been in a 20-year relationship, are free to marry each other after the High Court yesterday declared unconstitutional an early 20th century law that prevented them from marrying each other while the woman’s husband is still alive.

The couple are also suing for damages. Maura O’Shea, aged 45, of Ballybraher, Ballycotton, Co Cork, was in court for the decision by Ms Justice Mary Laffoy that the ban on her marrying her brother-in-law Michael O’Shea, aged 49, of the same address, while her ex-husband John is still alive, is not justified to either protect the family or the institution of marriage and is therefore unconstitutional.

The prohibition on such marriages was contained in an Act of 1907, as amended by a 1921 Act, both Acts dating back to the reign of Henry VIII in England and having ecclesiastical roots in the Book of Leviticus.

The couple only found out about the ban on their marrying each other weeks before they were due to be married some years ago.

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

After the judgment yesterday, 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 latter experience, they had not made any plans for a wedding pending the court’s judgment and needed time, she added.

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

Maura O’Shea had married John O’Shea, brother of Micheal O’Shea, in the Catholic Church at Ladysbridge, Co Cork, on October 23, 1980. The couple had two children, separated about 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.

Maura O’Shea developed a relationship with Michael O’Shea some six months after separating from her husband and the couple and Ms O’Shea’s two children from her marriage have lived together ever since.

Maura O’Shea and Micheal O’Shea 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.

Ms Justice Laffoy said the State had failed to show any rational basis for such prohibitions.

She said it was reasonable to infer that the couple had successfully reared Ms O’Shea’s two children without subjecting them to confusion and hurt.

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 to protect children from “undue turmoil and confusion”.

Earlier, the judge noted the case went back to the English Marriage Act of 1537, passed in the reign of Henry VIII.

She noted Henry VIII’s personal, dynastic and political objectives had continued to impinge on the marriage laws.