Woman can marry ex-spouse's brother

A divorced woman and her former husband's brother, who have been in a 20-year relationship, are now free to marry each other following a landmark High Court decision yesterday.

The court declared unconstitutional an early 20th-century law which prevented the couple marrying each other while the woman's husband is still alive.

The couple are also suing for damages and that issue will be addressed at a later stage. Legal sources said the judgment has clarified the situation for other couples in similar situations who did actually marry and had concerns about their legal status.

Maura O'Shea (45), 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 (49), of the same address, while her former husband John is still alive, is not justified either to 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 found out about the ban only weeks before they were due to be married some years ago. Ms O'Shea had bought her wedding dress and a reception was booked. However, 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 like theirs.

After the judgment yesterday, a smiling 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.

Maura O'Shea had married John O'Shea, brother of Michael O'Shea, in the Catholic church at Ladysbridge, Co Cork, on October 23rd, 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 by her marriage have lived together ever since.

Maura O'Shea and Michael 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 marriage between a man and the sister or half-sister of his wife during the wife's lifetime or between a woman and the brother or half-brother of her husband during the husband's lifetime.

In her reserved judgment, Ms Justice Laffoy noted that more than 10 years after divorce was introduced here in 1996, the Law Reform Commission, in recommending the abolition of all prohibitions on marriage based on affinity (relationships by marriage), had implicitly recognised there was no justification for such prohibitions.

In this case, the State had failed to show that any benefit was conferred by the existence of the affinity restrictions or that there was any rational basis for them, the judge said.

It was also reasonable to infer on the evidence that the couple had successfully reared Ms O'Shea's two children by her marriage without subjecting them to confusion and hurt, the judge said.

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.