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ABSTRACT
Despite its practical importance to upwards of 40,000 people annually, the framework governing weddings law in Ireland has received minimal academic attention or critique. This article seeks to address this gap in the literature, placing a particular focus on the rules governing wedding venues. In this effort, it draws on the Law Commission for England and Wales’ comprehensive Getting Married: A Consultation Paper on Weddings Law published in September 2020. Comparing the framework adopted in Ireland pursuant to the Civil Registration Act 2004 (as amended) with that provisionally proposed by the Law Commission for England and Wales, the article investigates whether certain proposals advanced by the Commission may also serve to cure weaknesses identified in the Irish scheme. The article highlights too how the Irish experience, specifically the anomalies which have emerged in law and practice in Ireland, may present a cautionary tale for those across the Irish Sea who wish to adopt a more conservative approach to its reform of the laws governing wedding venues than that presented by the Law Commission.
KEYWORDS:
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1. There were 20,313 marriages in Ireland in 2019 including 640 same-sex marriages, see Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/ [Accessed 20 January 2021]. This was down slightly on recent years. In 2016, for example, 22,626 weddings were celebrated, see Central Statistics Office. 2017. Marriages and Civil Partnerships 2016. Available from https://www.cso.ie/en/releasesandpublications/er/mcp/marriagesandcivilpartnerships2016/ [Accessed 20 January 2021]. Note, however, these figures reflect only legally registered wedding ceremonies in Ireland. It remains unclear how many unregistered, non-legally binding, weddings might be taking place.
2. The Law Commission’s consultation on its provisional proposals closed on 4 January 2021. A report with recommendations for Government is due in the second half of 2021. The Consultation Paper built on the Law Commission’s, Getting Married: A Scoping Paper. 2015. Available from: www.lawcom.gov.uk [Accessed 20 January 2021]. Note also, for ease of reference the title to this paper refers to England albeit that the article considers weddings law in England and Wales.
3. Due to the coronavirus pandemic, the notification of intention to marry may temporarily be posted or emailed in, see Citizen’s Information, Notification requirements for marriage. Available from https://www.citizensinformation.ie/en/birth_family_relationships/getting_married/notification_requirements_for_marriage.html [Accessed 23 November 2020].
4. Impediments include, for example, where one spouse is already married or is under age, see Department of Social Protection. Impediments to Marriage in Ireland. Available from https://www.gov.ie/en/publication/a4a0c2-impediments-to-marriage-in-ireland/ [Accessed 20 January 2021].
5. Section 51.
6. Section 51(3)(a).
7. Note, as originally drafted the legislation set out a requirement for intending spouses to expressly state that there were no impediments to the marriage taking place. However, within the Church of Ireland that position was indicated by silence. As a result, a compromise was found through the inclusion of section 51(9) whereby a declaration may be explicitly made before witnesses prior to the commencement of the liturgy.
8. Section 51(4).
9. Section 51.
10. Section 51(2)(2A).
11. Section 52(1). See below for more.
12. Secular weddings, for example Humanist weddings, are not legally recognised.
13. For example, in Jewish and Quaker weddings, although certain persons are legally required to register the marriages, they do not have to be attended by anyone in particular, and there is no legal requirement for witnesses. See sections 26(1)(c) to (d), 26B(2) and (4), 47, 50(1)(d) to (e), 53(b) to (c), and 55(1) to (2) of the Marriage Act 1949 (as amended). For weddings falling into the ‘catch all’ category, by contrast, there must be present a registrar of marriages or an authorised person, see section 44(2) of the Marriage Act 1949 (as amended). Two witnesses must also be present. For more on the current law in England and Wales, see Law Commission for England and Wales (Citation2020, Chapter 2).
14. Following this initial giving of notice, at which point the couple would be required to identify their chosen officiant and supply evidence of their identity, including nationality, the registration service would then publicise the intended marriage online on a national database of notices with individual register offices giving access to the online list to members of the public on request, see para. 3.16.
15. The Commission has left it open as to when precisely this meeting should take place, whether three, seven, or another number of days in advance of authority being given.
16. For more on the preliminaries, see Law Commission of England and Wales, 2020, Chapter 4.
17. [2013] UKSC 77, [2014] AC 610 at [57] per Lord Toulson.
18. For example, while Jewish and Quaker weddings are not subject to any legal restrictions on location (see sections 26(1)(c) and (e), 26B(2) and (4), and 47 of the Marriage Act 1949 (as amended)), for couples who wish to have a wedding according to the requirements of any faith in the final ‘catch all’ category, the wedding must take place in premises registered for the purposes of marriage (see sections 41–44 of the Marriage Act 1949 (as amended)).
19. At para. 7.124 it explains that the General Register Office would provide guidance to officiants on matters of dignity and safety which the officiant would be required to consider in agreeing to the location. Note, with regard to registration, the couple, witnesses and officiant would be required to sign a Schedule at the end of the ceremony which would then be returned to the registration service within one week of the ceremony, see paras 3.72–3.74. This mirrors the Irish approach whereby the couple, witnesses and officiant must sign the Marriage Registration Form following the wedding ceremony. It must then be returned to the registrar within one month of the ceremony at which point the registrar may enter the marriage on the official register.
20. Central Statistics Office. 2010. Marriages 2004. Available from https://www.cso.ie/en/media/csoie/releasespublications/documents/vitalstats/2004/marriages2004.pdf [Accessed 20 January 2021].
21. Central Statistics Office. 2010. Marriages 2004. Available from https://www.cso.ie/en/media/csoie/releasespublications/documents/vitalstats/2004/marriages2004.pdf [Accessed 20 January 2021].
22. Note, divorce was unavailable in Ireland prior to the enactment of the Family Law (Divorce) Act 1996.
23. Central Statistics Office. 2010. Marriages 2004. Available from https://www.cso.ie/en/media/csoie/releasespublications/documents/vitalstats/2004/marriages2004.pdf [Accessed 20 January 2021].
24. Central Statistics Office. 2010. Marriages 2004. Available from https://www.cso.ie/en/media/csoie/releasespublications/documents/vitalstats/2004/marriages2004.pdf [Accessed 20 January 2021].
25. Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/. [Accessed 20 January 2021]. This equates to a 43% decline.
26. Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/. [Accessed 20 January 2021].
27. Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/. [Accessed 20 January 2021]. Note, Methodist weddings in 2019 accounted for 0.3% of weddings. Specific figures for wedding ceremonies conducted by the Spiritualist Union of Ireland were only included from 2014. There is no Census data available on how many people identify as Spiritualists. However, it is not necessary to be Spiritualist or a member of the SUI to have a Spiritualist ceremony.
28. Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/. [Accessed 20 January 2021].
29. Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/. [Accessed 20 January 2021].
30. Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/. [Accessed 20 January 2021]. There is no Census data available on how many people in Ireland identify as Humanist. However, again, it is not necessary to be Humanist or a member of the HAI to have a Humanist ceremony.
31. While some of these ceremonies will be held by minority religions in places of worship, a significant proportion will not.
32. See below. Further speaking to the conservative mindset at the time, the 2004 Act as originally enacted carried a blanket ban on the solemnisation of marriage in private locations. The exemption on health grounds was only included in 2007 following the amendment of section 51(2)(c) by Pt 5, Sched 2 of the Health Act 2007.
33. In recent times, Government policies in relation to family law have sought to be more progressive and inclusive resulting in the introduction of same-sex marriage, secular marriage etc. The re-imposition of restrictions would likely be seen as a regressive step.
34. Or place referred to in section 51(2) of the 2004 Act (as amended).
35. The current list is reproduced by Department of Social Protection. Get Married in Ireland. Available from https://www.welfare.ie/en/Pages/Getting_Married.aspx#sect2 [Accessed 20 January 2021] with the page last updated on 24 December 2020. Given that those seeking information online are directed to this list from the General Register Office and the new list is also carried by the HSE (reproduced at https://www2.hse.ie/services/births-deaths-and-marriages/how-to-get-married-in-ireland/choosing-a-venue-for-a-civil-marriage-ceremony.html) it is to be assumed it is the most accurate version. It is important to note, however, that a more extensive list was produced by the Department of Social Protection on 29 May 2015 and was previously available from the same webpage [Accessed 3 July 2018]. See also section 52(1) of the 2004 Act (as amended).
36. Although technically ‘guidelines’, the language used in the latest iteration is imperative as venues ‘must’ have these characteristics.
37. A previous iteration of this guideline required ‘unrestricted public access without charge’ (emphasis added).
38. See above.
39. See, for example, One Fab Day, How to Get Married in Ireland: An Easy Guide to Making it Legal. Available from https://www.onefabday.com/ie/getting-married-in-ireland-advice-on-legalities/ [Accessed 20 January 2021]. This popular website (incorrectly) states: ‘If you wish to marry at a venue outside of the registry office, check that the venue, and the specific room you want the ceremony in, is licensed for civil ceremonies, or you will have to organise this.’ (Emphasis added).
40. Although both the SUI and the HAI have premises where they can celebrate a wedding ceremony, both emphasise their willingness to conduct ceremonies at other locations, see https://spiritualceremonies.ie/ and https://www.humanism.ie/. Anecdotal evidence suggests the vast majority of ceremonies are celebrated in locations beyond their premises. It is also important to note that although Islam now represented the third largest religion in Ireland, only 24 marriages were registered for the community in 2019. With thanks to Ms. Margaret Hurley, CSO for confirming statistics. For more on Muslim marriage in Ireland, see Leahy and O’Sullivan (Citation2019).
41. For example, a rule that ceremonies must take place within 200 m of a public building.
42. See below.
43. Civil Registration (Amendment) Act 2014.
44. Deputy Séan Ryan T.D. noted in Dáil Éireann: ‘Couples should be free to select a location but obviously the venue for a marriage ceremony should be a dignified one.’ See Dáil Éireann debate, Civil Registration Bill 2003: Second Stage (Resumed) (Wednesday, 28 January 2004) Vol. 578 No. 5. Available from https://www.oireachtas.ie/en/debates/debate/dail/2004-01-28/17/ [Accessed 20 January 2021] (emphasis added).
45. The formerly applicable guidelines were available on the website of the Department of Social Protection. Get Married in Ireland. Available from https://www.welfare.ie/en/Pages/Getting_Married.aspx#sect2 [Accessed 3 July 2018].
46. The solemnity of weddings is regularly referenced by the Irish legislature. See, for example, the comments of Senator Jim Walsh in 2012: ‘Everybody is in agreement that marriage is a fairly fundamental institution … it is important that those who solemnise marriage meet certain criteria and a certain standard and that it is a serious event … ’ Seanad Éireann debate Civil Registration (Amendment) Bill 2012: Committee and Remaining Stages (Wednesday, 2 May 2012) Vol. 215 No. 3. Available from https://www.oireachtas.ie/en/debates/debate/seanad/2012-05-02/7/ [Accessed 20 January 2021]. (Emphasis added).
47. See above.
48. See above.
49. See also Dáil Éireann debate. Civil Registration (Amendment) Bill 2014: Second Stage. (Tuesday, 7 October 2014) Vol. 853 No. 1. Available from https://www.oireachtas.ie/en/debates/debate/dail/2014-10-07/27/. [Accessed 20 January 2021].
50. If indeed the question was actually given thought.
51. Indeed, it could be argued the potential for a forced wedding could be heightened in these circumstances given the potential inheritance implications.
52. Where a sham marriage is in question, the Commission stated at para. 7.149: ‘Home Office policy is not to act on concerns … by preventing the wedding taking place on the day; rather, the focus is on preventing a person from getting an immigration advantage from the marriage … ’.
53. Emphasis added.
54. Per Minister Mary Coughlan. Seanad Éireann debate, Civil Registration Bill 2003: Second Stage (Wednesday, 11 February 2004) Vol. 175 No. 9. Available from https://www.oireachtas.ie/en/debates/debate/seanad/2004-02-11/18/. [Accessed 20 January 2021].
55. It also potentially gives greater scope to an individual to take effective action against a forced marriage, see below.
56. To facilitate intending spouses travelling from overseas.
57. Section 47(2)(d).
58. According to the Courts Service (Citation2020, p. 78) there were 421 applications for an exemption to the three-month notice requirement with 359 exemptions resolved. The Central Statistics Office. 2020. Marriages 2019. Available from https://www.cso.ie/en/releasesandpublications/er/mar/marriages2019/. [Accessed 20 January 2021] notes there were 20,313 marriages in Ireland in 2019. Therefore, a mere 1.7% of registered weddings in Ireland in 2019 were exempted from the three month notice requirement.
59. Or at any other convenient place specified by that registrar.
60. Minister Mary Coughlan, Seanad Éireann debate, Civil Registration Bill 2003: Committee Stage (Wednesday, 18 February 2004) Vol. 175 No. 11. Available from https://www.oireachtas.ie/en/debates/debate/seanad/2004-02-18/6/ [Accessed 20 January 2021]. Note, postal notifications were previously allowed under the Family Law Act 1995 and are currently accepted in light of the pandemic.
61. However, note the removal of the exemption to the minimum age requirement for marriage under section 45 of the Domestic Violence Act 2018.
62. These are marriages entered into for the sole purpose of securing an immigration advantage and circumventing immigration controls, see section 2 of the Civil Registration Act 2004 (as amended).
63. As introduced through the Civil Registration (Amendment) Act 2014. Where the Superintendent Registrar believes that the proposed marriage would constitute a marriage of convenience, they are obliged to notify the Minister for Justice and Equality.
64. See section 46(3A).
65. C-127/08, European Union: Court of Justice of the European Union, 25 July 2008.
66. Where an Irish national marries a non-EU national, such rights would not arise.
67. This is title of a 1933 autobiography by Muiris Ó Súilleabháin, translating as Twenty Years A-Growing.
68. Per Minister Mary Coughlan. Seanad Éireann debate, Civil Registration Bill 2003: Second Stage (Wednesday, 11 February 2004) Vol. 175 No. 9. Available from https://www.oireachtas.ie/en/debates/debate/seanad/2004-02-11/18/. [Accessed 20 January 2021].
69. Civil Registration (Amendment) Act 2012.
70. Civil Registration (Amendment) Act 2014.
71. See section 3 of the Civil Registration (Amendment) Act 2014.