Couple fight for the right to be married

A divorced woman and her former husband's brother, who have been in a 20-year relationship, have brought a High Court challenge to early 20th-century laws which prevent them marrying while the woman's husband is still alive.

The court was told Maura O'Shea and Michael O'Shea 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 Co Cork. However, when they were finalising arrangements with a registrar of marriages, the registrar noted they had the same surname and commented on that.

When they outlined what their connection was, the registrar indicated there might be a problem and they then learned of the laws prohibiting such marriages.

The couple claim the laws are capricious, irrational, unjust and outdated, breach their rights to marry, to form an "established marital family", and to property under both the Constitution and the European Convention on Human Rights, and ignore the introduction here of the right to divorce. Such laws may have made sense when the dissolution of marriages was prohibited here but ceased to have any rationality especially since the introduction of divorce in 1995, they contend.

The State disputes those claims and argues the laws are constitutional and necessary to protect marriage as a "lifelong" commitment and also to protect children from "undue turmoil and confusion". To allow the type of marriage sought would potentially undermine existing marriages and be akin to the State encouraging the development of a sexual interest in the siblings of spouses, it was claimed.

The action was brought against the State by Maura O'Shea (45), of Ballybraher, Ballycotton, Co Cork, and Michael O'Shea (49), also of Ballybraher, Ballycotton. The hearing concluded yesterday before Ms Justice Mary Laffoy, who reserved judgment.

The outcome of the proceedings is being watched closely by a number of couples in similar situations who, according to legal sources, did actually marry and who are now very concerned about their status.

Maura O'Shea married John O'Shea, brother of the plaintiff Michael O'Shea, in the Catholic Church at Ladysbridge, Co Cork, on October 23rd, 1980. The couple separated about January 1985 and were divorced in May 2000. John O'Shea is still alive.

Maura O'Shea and Michael O'Shea wish to marry each other but are prevented from doing so by provisions of the Deceased Wife's Sister's Marriage Act 1907, as amended by the Deceased Brother's Widow's Marriage Act 1921. Those Acts prohibit 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 submissions for the couple, David Hegarty SC, and Marie Whelan SC, instructed by John O'Connor, solicitors, argued that their clients' freedom of association and their right to contract marriage with each other has been wrongfully interfered with by the disputed provisions of the Acts. Such a marriage prohibition was not required in the interests of the common good and it also breached the couple's rights under the European Convention on Humans Rights, counsel contended. It was also argued that the right to marry goes back centuries and predates any statutory provisions and that the court should take this historical context into account.

In 1984, the Law Reform Commission had recommended in a very detailed report that the prohibition on such marriages of affinity be abolished and the court should have regard to that, counsel submitted.

Because the disputed laws were in force immediately prior to the coming into force of the Constitution, the laws are therefore void and inoperable, it was further submitted.

The court heard the couple's solicitor wrote to the Attorney General in August 2001 asking that legislation be introduced to correct the anomaly of the disputed legislation which prohibits their marriage but no such legislation has been introduced.

This failure, the couple claim, 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.

In their proceedings, they are seeking declarations that the relevant provisions of the 1907 and 1921 Acts are unconstitutional and that any marriage they enter into with each other will be lawful and valid.