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Select Committee on Legislation and Security debate -
Wednesday, 18 May 1994

SECTION 33.

Amendment No. 67 is consequential on amendment No. 68 and both may be discussed together. Is that agreed? Agreed.

I move amendment No. 67:

In page 29, subsection (1), line 14, to delete "section 31 (1) (a) or".

This is simply to establish that 18 years of age will be the minimum age of marriage. I am not sure that there should be flexibility in relation to this. While I listened carefully to arguments about people from different cultures or instances where a court may allow marriage at a younger age, 18 years is the recommended age. It emphasises the serious nature of the decision people take and whether they are mature enough to take a step which we hope will be a lifetime commitment.

The effect of amendment No. 67 would be to remove the possibility that a person under the age of 18 years could apply to the court for an exemption from the general age requirement imposed by section 31, that parties to a marriage be 18 years and upwards. There is already provision in the Marriages Act, 1972, for an application to be made to the President of the High Court in relation to marriages where a party is under the age of 16 years, which is the present minimum age. The exemption is designed to meet exceptional cases, whereas the provision in section 33 (2) (d) states that the grant of the exemption is justified by serious reasons and is in the interests of the parties to the intended marriage.

Deputy Keogh will be aware that the Law Reform Commission and the Oireachtas joint committee recommended that the age of marriage should be increased to 18 years and considered that an exemption provision was needed. The provisions of section 32 are in line with the recommendations of the Law Reform Commission and the Oireachtas joint committee. In those circumstances, I am opposed to the amendment.

Perhaps the Minister could give examples of "serious reasons". I will not press this amendment, which underlines the serious step people are taking.

I agree with Deputy Keogh. I, too would like examples of "serious reasons". I can think of a few, but I would like the Minister to amplify this. I intended to pose a question in relation to the previous section on the involvement of the Minister for Health in these matters, perhaps the Minister would elaborate on this.

I find it difficult to conceive of any circumstances where people under 18 years should be allowed to marry. This power should be rarely used. One may dress up all measures as cultural or religious, but our primary concern is with civil law and the circumstances under which people contract legally together. I find it difficult to think of circumstances where someone under the age of 18 years, for whatever reason, should be allowed to enter into such a legal commitment.

Exceptional cases do arise and I have been asked for two examples. I do not suggest that they be exhaustive or that a court should go along with them, obviously every case is different. For example, a court may decide that a person who is 17 and three quarters years and, perhaps, pregnant, is mature, although a shade under 18 years. In those circumstances, taking financial considerations into account and after interviewing the couple, it may decide it is appropriate that they marry below 18 years. However, there is an element of artificiality about setting parameters, in particular if someone wants to marry three months before they reach the required age. No matter what age one chooses, a person of 17 and a half years could be more mature than a person of 18 and a half years. A person of 17 years who could be terminally ill may want to marry. A court may hold that in these special circumstances it may be appropriate to allow this. It is at the court's discretion. In a special case a court, exercising due consideration of all factors, may recognise that there is an exception to the rule.

I accept what the Minister said about the arbitrary nature of a break-off point. There are some 16 year olds who are mature and some 25 year olds who are not; so it is, of necessity, arbitrary. The Minister gave an example which I would be concerned about. Pregnancy tends to put pressure on young people to get married, or it leaves them open to pressure from older people to get married. I wonder is that a circumstance where we should seek to impose a period of reflection rather than allow an application to court.

I agree with the Minister that there is a need for an escape hatch to allow for an application to court. No matter how well intentioned we are in trying to devise a Bill which will be best for everyone, there will always be people who will fall on the wrong side of the line and there will be anomalies and hard luck cases. It is wise to provide for an application to court.

This section should make it clear that the court should be satisfied that the grant of an exemption is justified and is in the interests of the parties to the intended marriage. I am not happy with the way that part of the section is framed. It requires the applicant to show that the grant is justified. I would be happier if it was made clear that the court had to be satisfied that the grant of an exemption was in the interests of the parties to the intended marriage.

I would have thought that was implicit in section 33 (2) (d) because it states: "it shall not be granted unless the applicant shows that its grant is justified". That means the applicant would have to show that to the satisfaction of the court.

And you would prefer to have it explicit that the court is satisfied?

I have no objection to the words "shows to the satisfaction of the court" being inserted. It is implicit anyway.

Amendment, by leave, withdrawn.
Amendment No. 68 not moved.
Question proposed: "That section 33, as amended, stand part of the Bill".

In relation to section 33 (2) (d), where it states "shall not be granted unless the applicant shows that the grant is justified by serious reasons", we agreed that in relation to the age of 18 we would try to illustrate what the serious reasons might be, but what about the three months' notice? Does it not seem a little harsh that the marriage would be rendered void if less than three months' notice were given unless the grant is justified by serious reasons? Is that not a little hard on people who do not give the three months' notice? I am agreeing with the three months' notice, but I wonder whether that provision is a little harsh. Would there be some way of getting around that? I know the Minister said that he would look at it again.

So far as the three months' notice is concerned, I take the Deputy's point, it does seem a bit harsh; but, regrettably, there is no point in having it if the marriage is to be valid where the ceremony goes ahead without it. You might as well not have it unless you provide that the marriage does not take effect unless the notice is given.

I take your point, but I wonder whether the grounds where you might alleviate that particular provision in section 33 (2) (d) could be gentled down a bit. Maybe you would look at it before Report Stage if you get an opportunity.

My understanding is that the right to apply to the court involves not only those who are under 18 but those who wish to get married within the three month period. People who feel that there is a serious case have the right to apply to the court. I earlier asked the Minister if he would care to elaborate on the role of the Minister for Health here. I think he ovelooked that.

Where is the role for the Minister for Health?

In the previous section. "The Minister for Health may make regulations for the purpose of this section and in particular in relation to notifications provided for".

The Minister for Health has overall responsibility for the registry offices and registry regulations.

So that is the only reason. We were not here thinking in terms of a certificate from the Minister for Health in relation to the health of the couple to be married? It could have been any other Minister if that Minister had responsibility for the registry offices.

I wish the Minister to look at the question of retrospective approval by the court. Section 33 provides for an exemption where the parties to the intended marriage come to the court before the marriage. I am thinking of a situation where perhaps a couple have gone through some form of marriage which is not valid under the Act, where they settle down, have children and then at some stage need to produce a marriage certificate. They cannot do so because strictly speaking under the Act the marriage is not valid. Surely there should be some procedure whereby they could go to court at some stage afterwards to secure some sort of retrospective validation? I am not pressing the point, but I ask the Minister to take it into account. I am quite sure something of this kind will arise and the Minister should give some consideration as to how that situation should be dealt with.

Maybe they should get married for the first time.

There is nothing I can say about that. If they went through a ceremony it could only have been done on the basis of false information given, because to comply with the terms of the Act certain questions must be asked when the application goes in. So there would be an element of fraud there. It might be innocent or inadvertent fraud or something like that, but I know of no procedure under which one could have a retrospective validation where it was void ab initio. However, I will think about it.

(Carlow-Kilkenny): In fairness to my colleague and the point the made about having marriages validated retrospectively, would they not have to go through a wedding ceremony of some sort, whatever their beliefs were? Would that not bring the whole thing into line?

You would have a situation there where people who were thought by the general public to be properly wedded and settled down with children would then have to publish notices and so on which would possibly cause considerable embarrassment for the children.

Children are already embarrassed enough if a couple are married 20 years and it is then decided that they have not been married at all.

Question put and agreed to.
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