Government is unlikely to treat bigamy law reform as urgent

 

The law of bigamy is one of the least-used pieces of legislation on the statute books, so the Government is unlikely to act urgently on Mr Justice Kinlen's call for it to be abolished or restructured.

Prosecutions under this law are extremely rare. The Director of Public Prosecutions has very wide discretion in the area, so that even if allegations are reported to him, he need not proceed. Such allegations are most likely to arise in the context of remarriage following a Catholic church annulment or a foreign divorce.

Nonetheless, family lawyers agree that a law of bigamy must remain on the statute books. "You can't abolish it, or you could end up with a polygamous society," said one.

"You have to have laws defining who is married and who isn't. Marriage is tied up with succession rights, family rights, taxation, the rights to the occupation of property.

"Prosecution is a very blunt instrument. Presumably the judge means that where there is no fall-out for society, like in remarriage following a church annulment or a foreign divorce, there is no need for a prosecution. Really now it is up to people to find out their legal situation and regularise it."

She said that marriage law had moved a long way. Not only was divorce now legal in Ireland, the law on the recognition of foreign divorces had been extended.

A recent judgment by Ms Justice McGuinness (which is being appealed by the State to the Supreme Court) had further extended such recognition.

However, even before the recent extension of the recognition of foreign divorces, people who remarried following a foreign divorce were very rarely prosecuted for bigamy.

Mr Justice Kinlen made his remarks in the context of granting a civil nullity to a woman who had had her first marriage annulled by the Catholic Church 22 years ago. This lawyer sees a need for more clarity in the law of civil nullity.

"There is an obvious case for a law of civil nullity, in cases of non-consummation, for example, or where there is severe mental illness. But now that there is divorce there is no need to be imaginative in widening the grounds for nullity to include, for example, `dysfunctional relationships'."

Another barrister specialising in family law agrees. "We should look at the law of nullity and tighten it up, so really the only issue to be dealt with is that of informed consent. Lack of such consent should make a marriage void.

"The legislators should also look at the question of financial relief following nullity, so that there are no financial benefits to obtaining an annulment rather than a divorce.

"In an annulled marriage there is no obligation on one party to provide financially for the dependent or vulnerable spouse. This does exist in the UK under nullity law."