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Confused about consummation?

The issue of consummation of marriage has arisen in the current debate around the marriage referendum. A great deal of confusion has arisen as a result. As such, some clarification of the law may be useful in analysing claims made in relation to consummation:

1. At the moment, a marriage is voidable if either party is unable to consummate the marriage, for either physical or psychological reasons. The inability may be general or relative to one's spouse only. That is, a person may be able to avoid a marriage because they were unable, at the time of the marriage and thereafter, to have sexual intercourse with their spouse, even if they go on to have sexual intercourse with a third party.

2. Until such time as a voidable marriage is avoided, the marriage remains valid. A voidable marriage is valid, but can be avoided by one of the parties to the marriage. If but only if one of the spouses avoids the marriage, the marriage is then deemed to be void with retrospective effect. In other …

On heterosexuals in same-sex marriage

The Referendum Commission has issued a statement, at the request of the Iona Institute, stating that it will be possible if the marriage referendum passes for two straight friends of the same sex to marry each other.  The question itself presupposes that this is not already possible for straight friends of the opposite sex. In fact a marriage between two friends of opposite sex is already legally possible. They can only annul if they are unable to consummate. Even if a refusal to consummate did also render marriage voidable, it is likely the parties would potentially lose the right to avoid if they agree in advance that their marriage will be sexless. Two straight men could marry in the same way if the referendum passes but (a) their marriage could be voidable on grounds of inability to form and sustain a normal and caring marital relationship with each other due to their sexual orientation (though again they could lose this right to avoid) and (b) why would they want to? Let us exa…

Should equal marriage be put in Article 40.1 instead of Article 41?

One of the issues that has arisen in the context of the marriage referendum is the precise part of the Constitution in which the proposed amendment should be placed. The proposal is that a new Article 41.4 be inserted into the article in the Constitution that deals with marriage and the family. Some on the no side argue that the amendment should have been placed in Article 40, which deals with personal rights and, in particular, in the subarticle dealing with equality (Article 40.1).

Let's contemplate what might happen if the proposed marriage amendment were to be included as part of the equality guarantee (let's say as an addendum to it, or as Article 40.1.2) rather than in the Family provisions.

Would many no voters vote yes if this referendum addressed Article 40.1 instead of Article 41?
Probably not. It is highly unlikely many committed no voters would change their minds if this were an amendment to Article 40.1 rather than Article 41.

What do the relevant provisions do?

9 things the marriage referendum isn't actually about

It’s fairly de rigueur with referendums for the discussion to veer towards issues that in fact have little to do with the referendum or are only tangentially relevant. This is no less the case with the marriage referendum. 

Here is a list of things the referendum does not concern:

1. Religious marriage

The referendum addresses civil marriage only, marriage in the eyes of the State. The referendum will not affect the practice of churches in relation to marriage. Churches are now free to refuse to marry whomever they wish. This will remain the case if the referendum passes. The Draft Marriage Bill 2015 confirms that no religious minister or church will be compelled to marry any two persons as a result of the passage of the referendum. Churches will be allowed to celebrate marriages of same-sex couples, but only if they wish to do so. There is already an exemption in the Equal Status Act 2000 that allows discrimination on the religion ground in the provision of religious goods and servi…

Us, them and 'we'

The marriage referendum, scheduled for May 22, is now less than 4 weeks away.

I want here to dwell on a particular No side poster (from Mothers and Fathers Matter). It states "We already have civil partnerships; don't redefine marriage".

I am intrigued, in particular, by the 'we'. Who are this 'we'? What does this mean?

Are 'we' everybody?
If the 'we is 'we' as  in 'the public' at large, in fact 'we' don't all have civil partnerships. Only unrelated couples of the same-sex may enter into civil partnership. There is no requirement, admittedly, that the couple be gay. Yet, barring unusual circumstances,* it is very unlikely that many straight people have partaken of civil partnership, not least because it forecloses the possibility of a marriage to an opposite-sex partner.

Are 'we' heterosexual?
If the 'we' means (as it often means) heterosexual couples and heterosexuals generally, then the 'we'…

Unpacking the differences: dissolution of civil partnerships

A short while back I wrote about the remaining differences between civil partnership and marriage. One key difference relates to ending a civil partnership. In short, it is a good deal easier to end a civil partnership than a marriage.

This might sound like an advantage for civil partners, but it arguably underpins the lesser status of civil partnership and the lower regard in which it is held.

Ending a marriage in Ireland is a serious business. The conditions for divorce are laid out in the Constitution, no less, and reinforced by legislation. They cannot be watered down without a further referendum.  You have to have been living apart for 4 of the 5 years immediately preceding the date of the application for a divorce. You have to satisfy the judge that there is no reasonable prospect of reconciliation. You have to show, also, that proper financial provision is made or will be made for both spouses and any children of either or both spouses.

Additionally, as a precondition to lodgi…

What will happen to civil partnership if the marriage referendum passes?

What is civil partnership?

Civil partnership was introduced in 2011, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Civil Partnership is confined to same-sex couples only. Both parties must be aged 18 or over, and must not be closely related to each other. They must not already be in a civil partnership or marriage with other people. The process of entering into a civil partnership is very similar to marriage except that there is no facility for recognising a church ceremony. While there is nothing in the Act saying that you must be gay or bisexual, civil partnership legislation was clearly designed to facilitate the formalisation of same-sex romantic unions. Civil partnership confers most if not all of the rights and obligations associated with marriage, though there are some significant exceptions (discussed here).

What will happen to civil partnership if the marriage referendum passes?

The Draft General Scheme of the Marriage Bill 2015 indicat…

Regarding the Other Referendum

The Thirty-Fifth Amendment to the Constitution Bill 2015 proposes that the minimum age for the Presidency – currently 35 – be lowered to 21.Notably, 21 currently is the minimum age for election to the Dáil. The referendum is scheduled for May 22, the same date as the marriage referendum. So far, however, it has garnered much less attention than its counterpart.

The current minimum age requirement in Ireland mirrors similar provisions in the US Constitution, under which a candidate for President or Vice-President must be 35.The rationale behind the minimum age requirement would appear to be that the candidate should be sufficiently mature and experienced to hold office.Some commentators, indeed, quite fairly question whether 21 is too young to hold an office so prestigious as that of the Presidency. The matter was considered by the Constitutional Convention, though the outcome was equivocal. 50% of Convention members supported a reduction in the minimum age, but 47% were opposed; hardly…

Civil Partnership v Marriage? Some examples of remaining differences

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A claim regularly made in the marriage referendum debate is that civil partnership should be sufficient for same sex couples and that there is no need to extend marriage to same-sex couples. Civil partnership certainly provides extensive rights and obligations. It offers equal treatment with marriage, for instance, in the context of taxation, social welfare, pensions, citizenship, immigration, property, domestic violence, and maintenance. Largely equal treatment applies in the context of succession (inheritance) and remedies following dissolution. It delivered a number of vitally important, and in some cases urgently needed protections for same-sex couples.
Civil Partnership differs from marriage, however, in a number of respects. Many of these differences initially related to children being raised by civil partners, though most of these particular differences have been eliminated by the Children and Family Relationships Bill 2015. Other differences in the original Act have been remove…

NI conscience proposal may have unintended consequences

The Democratic Unionist Party in Northern Ireland is proposing an amendment to existing equality regulations in Northern Ireland. This relatively short amendment would allow a person in business to refuse on grounds of sexual orientation to provide goods or services or the use of premises where providing such good or services or use of premises would involve the person “endorsing, promoting or facilitating” a behaviour or belief that infringes that person’s strongly held religious convictions. It would also allow faith-based adoption and fostering agencies to turn away potential foster parents and adopters who are gay.

The proposed amendment is contained in the Northern Ireland Freedom of Conscience Amendment Bill. The Bill proposes to amend the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. Notably, the focus is solely on sexual orientation.  It does not propose to allow religious conscience to be invoked in other contexts, such as in relation to legislatio…