Repeal of 200-year-old law preventing wards of courts marrying is welcomed

Right to wed will be based on capacity and no longer impeded by Marriage of Lunatics Act

The repeal of a law preventing wards of court marrying, which dates back more than 200 years, has been welcomed by the general solicitor for wards of court.

The repeal of the 1811 Marriage of Lunatics Act was effected this week as a result of the commencement on Monday of section 7.1 of the Assisted Decision Making Capacity Act 2015.

The 2015 Act, which when fully commenced will apply to everyone, maximises a person’s right to make their own decisions, with legally recognised supports, whenever possible.

Patricia Hickey, the general solicitor for wards of court, warmly welcomed the repeal of the 1811 Act.


“I am delighted that this Act has been repealed and the automatic bar is finally removed,” she said. “The right to marry will be based on capacity and will no longer be impeded by this legislation.”

When fully commenced, the 2015 Act is intended to replace the High Court’s wardship system, in place since Victorian times following the enactment of the Lunacy Regulation Ireland Act 1871.

The date for full commencement of the 2015 Act has been set as July 2022 but concerns have been raised about potential difficulties with full implementation unless adequate funding is provided.

More than 2,500 people who have been taken into wardship will remain wards until the relevant provisions replacing the wardship system are commenced.

Intellectually disabled man

An intellectually disabled man, whose wedding remains prohibited by court order, last year initiated a challenge to the constitutionality of both the 1811 Act and the 1871 Act.

A hearing date for that action, to which the Irish Human Rights and Equality Commission has been joined, has yet to be fixed.

The man initiated the proceedings after a charity providing residential and care services for him got a High Court order in summer 2019 preventing him entering into a civil marriage with his girlfriend of 15 years who also has an intellectual disability but is described as high-functioning.

The charity, arising from concerns over the man’s capacity to enter into a contract of marriage, got the order a day before the wedding in the context of intended proceedings to have him made a ward of court. His siblings supported the charity’s application.

The man opposes wardship and the wardship proceedings remain on hold pending his constitutional challenge, brought against the Ministers for Health and Justice, Ireland and the Attorney General.

The Irish Human Rights and Equality Commission is also involved as an amicus curiae, assistant to the court on legal issues.

In that action, he seeks declarations that the 1811 and 1871 Acts breach his rights under the Constitution and the European Convention of Human Rights.

He also seeks a declaration the wardship jurisdiction vested in the High Court President in the 1936 Courts of Justice Act and the 1961 Courts Act is unconstitutional and breaches his rights under the ECHR. In order to vindicate his rights, the defendants must bring into force without further delay section 7 of the 2015 Act, he further argues.

Section 7.1 provides for repeal of the 1811 Act and section 7.2 provides for repeal of the 1871 Act. On Monday last, section 7.1 was commenced, with the effect the 1811 Act has been repealed.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times