Marriages Bill, 1972: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Health (Mr. Childers)

The Marriages Bill, 1972, settles a minimum age for marriage and eliminates certain difficulties and doubts arising under the existing marriage laws.

This is an interim Bill with the limited objective of making some rather urgent amendments to the marriage code and I have gone on record as welcoming a general overhaul and codification of the marriage laws which go back over 100 years. Indeed, I have been encouraged by the extent of support which has been made manifest for such a comprehensive measure and, if this House also indicates its support for such a move, it may be taken that the necessary steps will be initiated by me at an early date to make a start on this. I must reiterate my belief that the need for such a comprehensive measure must be accepted generally and that all religious bodies must have a considerable voice in working out a revised marriage code. My reason for saying this arises from the need to obtain not alone a consensus of views, but, as far as possible, agreement of views, on matters which are so delicate and so complex and so important as the marriage code. These requirements affect every member of the community in one way or another; they are interwoven with religious beliefs and practices; they are interlinked with rights to property; they have international repercussions. The difficulty of such a task should not be under-emphasised.

Consultations on this small Bill, which has had complexities out of proportion to its size, have been undertaken with all religious bodies both before the provisions of the Bill were formulated and in specific terms after its introduction. And I think I can say that in every case where one religion only was concerned in a provision that that provision is to the complete satisfaction of the religious denomination concerned. Where a provision affects more than one I have done the best I could to meet the wishes of all. I think I can say that the Bill has not alone been generally welcomed by the religious denominations but that all the pressures have been to have it enacted without further delay. I must again record my appreciation of the religious bodies, whom I consulted, for their willing co-operation in this matter.

On the detailed provisions, section 1 fixes 16 years as the normal minimum age for marriage. There is provision made for exemptions to be given for specified reasons and subject to specified safeguards which are set down in the section. This is the first time we have had a statutory minimum age for marriage and up to now we have been dependent on a common law requirement under which the minimum ages were 12 years for a girl and 14 years for a boy.

I should perhaps explain that a United Nations Convention of 1962 provided that parties to the convention would take legislative action to specify a minimum age for marriage and to provide that no marriage should be legally entered into by any person under that age except where a competent authority had granted a dispensation as to age for specified reasons in the interests of the intending spouses. The United Nations followed this up in 1965 when the General Assembly recommended member states to fix the minimum age at not less than 15 years. In drafting section 1 it will be noted that the interests of the intending spouses are in fact kept to the fore. The minimum age of 16 obtains as regards males in the United Kingdom, Italy, Portugal and Spain and of 18 years in eight other European countries and a minimum of 20 in two others. As regards females, a minimum age of between 12 and 16 obtains in nine European countries, a minimum of 17 in one and a minimum of 18 in four others. In 12 European countries there is provision for exemption from the minimum age. The numbers of marriages in Ireland of persons one of whom was under 16 years of age average about 30 a year of whom the great majority are Roman Catholic marriages. In 1969 and 1970, for example, of the 60 girls and three boys under 16 who married 57 were Roman Catholic.

Section 2 deals with the validation as to form of the marriage of an Irish citizen which was solemnised in Lourdes, by a religious ceremony only, before the passing of this Act where the requirements of the French civil law were not complied with. That law requires marriages to be by civil process whether or not a religious ceremony is also performed and the absence of the civil process in the small number of cases concerned has raised a doubt about the "Lourdes Marriages" as they are called. It is possible and perhaps probable that the Irish courts would hold such marriages as valid here but the present section settles any doubt which might arise. The section also contains a provision for optional registration here if the parties so desire.

Section 3 deals with certain marriages of members of the Church of Ireland. Some of their churches have in the past been amalgamated or closed and the districts of the closed churches or amalgamated churches should have been attached for marriage purposes to a church which was still open. The section covers cases where this was not done in good time.

Section 4 concerns the members of the Orthodox Jewish faith and permits the secretary of the synagogue to appoint a deputy to act in relation to the registration of marriages solemnised in the synagogue during the secretary's absence.

Section 5 deals with the Dublin Jewish Progressive Congregation which was established some 26 years ago. It provides for recognition, for civil purposes, of marriages solemnised in the synagogue of the congregation. It terminates the arrangement, which has operated up to now, whereby, despite a religious marriage ceremony in their synagogue, they were required, for civil purposes, to have another marriage ceremony in a registrar's office. The section also provides for the appointment of a deputy to the secretary who will register marriages held in the synagogue in the absence of the secretary.

Section 6 is designed to facilitate members of small religious groups who have only very few churches in the state. At present in such cases it is necessary for at least one of the parties to reside for 23 days in the registrar's district in which the church in which they wish to marry is situated before the registrar can issue a licence to marry. If neither of them resides in such district, one of them has to change residence temporarily. Under the section such period of residence will no longer be necessary—the requisite notice can be given in the registrar's district in which he or she resides.

Section 7 provides in one concise revised provision for what is called parental consent to the marriage of a minor. This requirement under the section, will apply to all under 21 marriages solemnised in the State including, for the first time, marriages solemnised in Catholic churches. I would call attention also to the provisions of section 18 of the Bill under which a change may be effected in regard to the age of 21. Section 7 makes it clear that the marriage of any underage person solemnised in the state must have the consent of both parents or, if only one is alive, then of that parent; or if the child has one parent and also a guardian, then of both those parties. Where there is no parent or guardian then either party to the marriage may look to the courts for consent and the adjudication of the court may also be sought in cases where a parent or guardian withholds or refuses consent, where the parent or guardian is unknown or of unsound mind or is unreasonably difficult to locate. If one parent consents, and the other withholds or refuses consent, recourse to the court would also be possible to enable the under age marriage to be solemnised if the court so thinks fit. The section is drawn in such a way that the consent will be sought from the courts in a manner which is quick, informal and as inexpensive as possible.

Section 8 of the Bill by changing the words "Meeting Place" to "Church" brings the legal titles in relation to the Presbyterian Church into line with the titles in use by that Church.

Section 9 gives to the Assistant to an tÁrd-Chláraitheoir the same formal statutory powers in relation to marriage as he now has in respect of births and deaths. It is not clear why the position was ever otherwise.

Section 10 is of interest to members of the Church of Christ Scientist. Their marriages in registrars' offices are linked, at present, with a requirement to have notice of the intended marriages published in the newspapers. In future this will not be necessary and the notice of the marriage will be sent to the secretary of the church.

Section 11 removes a restriction in respect of the Church of Ireland mentioned in an Act of 1870 dealing with marriages. The reference in that Act to rules of the church in force in 1870 is being changed to rules of the church in force from time to time.

Section 12 will remove restrictions about residence relating to the marriage of members of the Church of Ireland who, for example, moved from a city centre to the suburbs and continued attending at a city centre church. The section will enable the couple to marry in the church where one of them worships or in the church attached to the district where he or she lives. The section is of general application throughout the country and deals with any members of the Church of Ireland who have continued to worship in a particular church after moving to another area.

Sections 13 and 14 deal with the existing statutory requirements about special licences. Special licences are issued by specified religious leaders who may authorise a marriage of persons of the same religion as themselves at any time without residential qualification and in any place. These provisions were set out in an Act of 1870. Sections 13 and 14 provide that, in future, only one of the parties to the marriage need be of the religion of the person issuing the licence. The sections also make provision for the appointment of a deputy who may issue special licences in the absence of the authorised person. Section 14 also authorises the Chief Rabbi to issue special licences and this is a new provision in his case.

Section 15 will operate to enable two or more religious bodies to combine in making joint use of one building for marriage services by the religious bodies if they so wish. It also removes legal difficulties which exist about the use of temporary buildings for marriage purposes where, for example, the usual building is being reconstructed or has been destroyed by fire.

With regard to section 16, cases have occurred where parties wished to marry by civil process but one of them was so ill that he or she could not travel to a registrar's office to be married. This provision will authorise an Ard-Chláraitheoir to issue a special licence which, in effect, will enable the registrar of marriages to travel to where the sick person is and officiate at the marriage ceremony there. The section will benefit those types of hardship cases the number of which is not expected to be large.

Section 17 wipes out all the existing legal restrictions as to the hours of the day at which marriages may be performed by religious ceremony. The one exception to this is in regard to civil marriages in a registrar's office and in this case the hours in which marriages may take place are being extended. The commencing hour remains the same, at 8 o'clock, but the closing hour is 5 o'clock instead of 3 o'clock as at present.

Section 18 authorises the Minister by regulations, which must be tabled in each House of the Oireachtas, to amend the age limit of 21 which is referred to in section 7 of the Bill and is mentioned incidentally in various consequential provisions of the marriage laws. The intention is that if the voting age is lowered from 21 to 18 a corresponding reduction will be made in the age of marriage in respect of which parental consent is necessary.

I commend the Bill to the House.

Dr. Belton

I welcome the opportunity to discuss a Marriages Bill. There are certain references in section 17—it was introduced in the Dáil as section 16 but it became section 17—to Acts that have been repealed. One has to undertake some research to find out what this means. This is not only relevant to the Marriages Bill before us but to other Bills which are brought in here by other Ministers.

I would welcome a revision and consolidation of the whole legal code in regard to marriage, in every sense of the word. I know this would take a long time to complete but we are rapidly reaching the stage where this must be tackled once and for all. If this is done we will not have to refer back as we must do if we wish to understand section 17 correctly. Section 17 refers to the Act of 1844 as amended by the Act of 1918. The years 1863, 1870 and 1919 are mentioned in it. The Minister has advisers who can produce any information he requires but other people have to look up all the Acts referred to here. The general codification of law requires consolidation and should be brought up to date.

Another aspect is whether the Bill is comprehensive enough. I have some doubts about it. I have some sympathy with the Minister in that if he did make it more comprehensive there might be danger in it and we might have too many people writing to The Irish Times disagreeing with certain things. Therefore, it may be advisable that it should not be as comprehensive as I should like it to be.

I shall confine myself to three aspects of this Bill. The fact that I do not mention any others does not mean that I do not attach to them the same importance. I do, but I see in them less room for contention and argument than the three I am about to mention. On the Second Stage of a Bill it is not usual to go into detail on the sections. That is usually done on the Committee Stage where there may be amendments to them but, frequently, on the Second Stage it may be as well to refer to certain sections so that the Minister can reply to them in his winding-up speech and, therefore, preclude or prevent certain amendments being put down in Committee which may delay the passing of the Bill. It may prevent me from putting down amendments that I would otherwise put down.

The first contentious point is the question of age. All of us inherently accept the point that with two people entering into a marriage contract the male partner is generally older than the female partner. I recognise the difficulty involved in making special laws for one sex. You would be legislating for special cases which has always been regarded as bad legislation. I think most of us would accept that marriages appear to be more successful where the male partner is at least four or five years older than the female partner. I accept that the Minister cannot embrace that point in legislation.

I wish to quote from a biography of Louis XIV. It is not Nancy Mitford's boudoir escapades of Louis XIV. Vincent Cronin dealt in his book with commerce and finance in the colonisation of Canada. We read how the Ministers of Louis XIV, Fouquet and Colbert, especially Colbert, decided on the colonisation of Canada. Certain men were sent out to Canada and returned with furs to keep the ladies warm. They soon found out that the trappers out there were not warm enough themselves so the king sent out what are called king's women to keep them warm. I shall quote a piece from that book:

To stimulate the birthrate in Canada a gift of £7 was given to each youth who married before 20 and to each girl who married before 16. Families with ten living children, excluding those in religion, were given an annual pension of £100.

What I am about to say is not too pertinent but it will be of interest to Senator Robinson, I am sure. Louis's conscientious attendant, Jean Perot, reported that Indian women impaired their fertility by nursing babies longer than was necessary, but he added: "This obstacle to the speedy expansion of the colony can be overcome by police regulation." In other words, the Minister's colleague, Deputy Brennan, Minister for Social Welfare, was not the first to invent the whole idea of giving marriage allowances and children's allowances; it was first done in 1674.

As the Minister mentioned in his memorandum, there have not been statutory age limits: one could be married at 12 or 14 years up to this. It was just the natural law that decided it—there is no statutory limitation.

In those days they were trying to increase the age at which people got married, not reduce it. However, they recognised then the optimum difference in age between the man and woman who were to be married. I think that roughly prevails today in most people's minds. I am sorry to see that Professor Jessop has left because he might bear me out on this point— this pertains in my opinion at the marriageable ages, that is 20 years and 16 years: it is medically true, in general, that a woman matures earlier than a man and especially in regard to sexual matters and the running of a home, which are necessary in a wife. A man is inclined to be a bit more irresponsible at that age and therefore this should be the correct difference between the ages of a man and woman getting married. I do not know how the Minister can get over this. I do not want to suggest to him that he should make certain legislation for the male and different legislation for the female; that would not be correct. However, the Minister must agree that the male should be older, generally.

There is a further aspect of this which does not enter into the matter. If there were not that difference in age between the male and female, a discrepancy may occur at the end of what I might term their sexual life that might lead to certain difficulties in marriage. Therefore, on balance, not because I do not think a girl is too young to get married at 16 but because I think the male is too young to get married at 16, the striking of the age 18 years may overcome this to some degree. It does not overcome it in the way that I should like, but it might to some degree overcome the points I have made. Section 1 (3) (b) (ii) of the Bill states:

the welfare of the person in respect of whom it is made shall then be the paramount consideration and, in considering that person's welfare, regard shall be had to the religion professed by him or her and his or her moral, physical and social wellbeing.

I do not know exactly what that means and I should like to have an explanation of it. For instance, take the word "moral". If a girl unfortunately becomes pregnant—and a lot of people would like to see her married to the father of her forthcoming child—it is obvious that she has not been moral. How is one to get over this? Perhaps two people under 16 years of age who may want to get married and are completely moral may be refused permission. In other words, are we giving licence to immorality? In my religion the parish priest would like to see the girl married to the father of the child she is going to bear.

Regarding the word "physical", what is meant by it? Do the parties to this contract of marriage when under 16 years have to be examined by a doctor to see if they can get married? Has a doctor's certificate to be issued as regard their anatomies? There is also the question of whether a psychiatrist should be called in to see if they are mentally fit to get married. Is this embraced in the word "physical"? I am not sure what this means.

Again, I do not know what "social" means. Does it mean in effect that if the husband cannot support the girl that a refusal is given? If they cannot get a house is a refusal given? What does "social" mean in this context? If I am satisfied with the Minister's explanation in this regard, it will end at that. However, if I am not satisfied, I may put down amendments at Committee Stage to get more information on it. That is why occasionally one has to go through sections to find this out before Committee Stage.

Subsection (3) (d) (i) of section 1 states:

...it may be made by or on behalf of either party to the intended marriage and without the intervention of a next friend,

Is it correct that one party should do this? Would it not be better if both parties to the marriage contract came together for this purpose; or whoever is acting for both parties—whether they be wards of court or otherwise? Why should not both parties be involved in it?

I want to refer to the movement of labour, capital and other resources when we enter the EEC. People may say that it is more likely that labour will move out of this country, but we do not know when we might have an E1 Dorado in Tipperary or another Tynagh in Kilkenny or something of this nature when we might have an influx of foreign labour. There is Muslim, Turkish and Greek Orthodox labour in some European countries at the moment, especially Germany.

If a new mine were found here, the labour might come into this country instead of going out of it and no provision is made for the religions of such migratory labour.

The Minister may be able to help me about British passports and how they are valid here. I mention this because of what has happened in Uganda. Ugandan Asians with British passports are allowed into England. They may be Hindus, Muslims or other Asian religions. We have made no provision in this list for people like that if they came over here. Do we exclude them? By listing any religion we are automatically excluding the others.

I want to refer to section 16 of the Bill as introduced in the Dáil. Because a new section was interpolated in the Dáil, it is now section 17. This is the section with all the repealing Acts and amendments to Acts and so on. The word "solemnisation" of marriage is mentioned in some of these Acts and it is retained here. The definition of "solemnisation" is to perform the ritual ceremony. The Minister may say that the solemnisation in regard to marriage is not included. This may be a perfect answer on the Minister's part, but if he is repealing Acts in which the word "solemnisation" occurs he is repealing only the provision in relation to the hours from eight to three. Stroud's Judicial Dictionary defines “solemnisation” in regard to marriage, as used in a marriage settlement:

The solemnisation of the said intended marriage means the consummation of a valid and effectual marriage.

I want to draw the Minister's attention to the provision in this Bill amending the hours from 8 a.m. to 3 p.m. to 8 a.m. to 5 p.m. Up to now marriages have taken place outside the hours of 8 a.m. to 3 p.m. I know of marriages which were celebrated at 6.30 a.m., 4 p.m. and 5 p.m. Are the marriages which have taken place outside these hours invalid? If they are not invalid what is the purpose of this section? Does it solely refer to the registrar's opening hours? Surely people could wait until the next day to get the marriage registered. All they have to do is sign a book in the religion I belong to—I am sure it is the same with the Minister's religion—and the signing of a book is taken as sufficient for the registrar. This could be forwarded to the registrar the next day. If this is referring solely to the registrar's opening hours it should be brought out in this. If not, then surely the marriages that have taken place outside the hours he has mentioned are not valid marriages. The question of legitimacy in the distribution of property held by one spouse on the death of the other one comes into question in this. I agree with the Minister when he said that there we are on grounds that are extremely delicate. It is one that involves many complexities because one has to deal not alone with the statutory law of the State, which must be complied with, but one has to take into consideration the various nuances of different religions that are set out. If the Minister were making an effort to comply as far as he can with the wishes of the various religions and denominations it may have been better not to have mentioned any single one. He may have to add to this list in a year or two under section 4.

Business suspended at 1 p.m. and resumed at 2.30 p.m.

Dr. Belton

There is very little more I have to say. I am quite sure the Minister appreciated the points that I have put forward through the Chair. If I get a responsible reply to the points I have raised it will reduce the amendments put down for the Committee Stage and we will get through this Bill quicker. I should, however, like to raise a few further points on section 1, subsection (8), following paragraphs (i) and (ii) which state:

...the marriage shall not be registered save on production, to the person effecting the registration, of—

(i) in the case referred to in paragraph (a) of this subsection, a certificate signed by the parish priest in whose parish the marriage was solemnised and certifying that the permission was granted by a named person and that that person was duly authorised to grant the permission, or

(ii) in the case referred to in paragraph (b) of this subsection, a separate such certificate in relation to each permission.

Section 1 is so long that the point I wish to raise may have been covered somewhere in the section and perhaps the Minister would enlighten me in his reply. If the parish priest is not available is any provision made that somebody else can act on his behalf? Section 1 deals with so many things and refers backwards and forwards that one becomes slightly involved in dealing with this type of thing. If this provision has not been made then it should be.

I should like to commend the Minister in his efforts to solve a very complicated situation with regard to marriages in this country, although I do not necessarily agree that his efforts have been successful. I should have preferred to have a more consolidated, all-embracing Bill. There may be some difficulty in providing this at the present moment and perhaps this is not an opportune time to do so. When things quieten down I presume that, if we have the same Minister for Health, he will provide the proper machinery to consolidate all the Acts that are repealed in section 17 of this Bill.

Since there are so many legal questions involved, I am amazed that this Bill is being dealt with by the Minister for Health. It would be more appropriate to the Department of Justice. I am not suggesting that the present Minister is not capable of bringing in this Bill but, while the health aspects of marriage are important, I am sure he understands my point. I am not qualified to deal with the legal matters and perhaps somebody will follow me who will deal with them.

If I receive satisfactory answers to the points I made before the lunch break I may not put down any amendments. I cannot guarantee that amendments will not be put down for the Committee Stage. The Minister has always been extremely helpful. I may criticise him at times, but that is my duty—and I am sure in his reply to the Second Reading he will be equally helpful.

Miss Owens

I should like briefly to associate myself with the other speakers who have worked on this Bill. The Minister in his opening remarks explained to the House that he recognised the need for a more comprehensive Bill. He indicated that he hoped to bring such a Bill before both Houses in the not too distant future. I sincerely hope that the "future" will not be too distant. I certainly welcome this measure for what it contains. I also welcome it for regularising a rather unfortunate position in connection with what are commonly referred to as the "Lourdes Marriages". The fact that we have now arrived at a minimum legal age for marriages is very important. I was concerned that it took us from 1962, and from 1965, to bring in this measure. Without going into the detailed discussion of whether 16, 17 or 18 should be the age, at least it is a step forward that we have established a minimum age.

I should also like to welcome the Minister's amendment which he introduced in the other House whereby he gave the right of consent to marriage to both parents. I think he realised when he introduced the Bill that this was causing concern to women particularly active women's organisations. It remedies the defect in this particular area, one of the first areas in which the State has recognised the rights of mothers. I hope that shortly we will have legislation which will give the mother the same right to her children as the father has. This does not pertain in other areas— for example, the claiming of the children's allowances and the right to get passports for the child. There are many other instances as well.

I welcome this Bill on behalf of the Labour Party Members in this House. I look forward to and urge the Minister to introduce a fully comprehensive marriage Bill. I should like to ask the Minister if he could explain why it is that this item of marriage legislation comes under his Department. It is something which has been queried by a number of people. It is more a matter of curiosity than of criticism, as to why this type of legislation does not come under the Department of Justice.

Mrs. Robinson

I was very critical yesterday of the European Communities Bill and was gently reprimanded for talking about lazy draftsmanship and preparation of the Bill. Yet I find myself in somewhat the same position when faced with this Marriages Bill, 1972. As the Minister said in introducing the Bill, it is an interim measure with a certain urgency attached to it and therefore not a full-scale measure on marriage. It is confined only to one or two specific aspects. Given that point, I should like to come back to the general point. One can look at the drafting with very critical eyes. I am reluctant to find myself twice in 24 hours being critical of the parliamentary draftsmen. They are the officials of the Departments and one should perhaps be critical of the Minister as the person taking responsibility for the drafting.

Looking at section 1 of this Bill, it appears to be an extraordinary approach to the problem. It reminds me of lecturing to law students about what Parliament can do about blue-eyed babies. Subsection (1) states:

(1) A marriage solemnised between persons either of whom is under the age of sixteen shall not be valid in law.

Then subsection (2) makes an exception to this proposition:

(2) Subsection (1) of this section shall have effect subject to the proviso that where a person who is under the age of sixteen wishes to marry, application may be made for permission for the marriage and, if the application is granted and the marriage is solemnised, the person shall be regarded for the purposes of that subsection as being not under the age of sixteen.

This seems to be a very strange and unusual way of achieving a point, that you state a proposition and then apply this sort of exception, not based on reality but on the provisions of the subsection. A person under the age of sixteen "shall be regarded for the purposes of that subsection as being not under the age of sixteen". This is a rather strange and weird approach. I propose to introduce amendments on Committee Stage which would state this in a more straightforward way. I hope also to introduce amendments on what follows, because we are introducing the possibility of creating exceptions and we are giving to various churches a role in being part of these exceptions.

I agree with the point made by Senator Horgan in a recent article in The Irish Times that it is ironical that, at the same time as we are hoping to remove the provision recognising the special position of the Roman Church and recognising certain other religious denominations, we are introducing lists of religious denominations into legislation of this sort. I am not suggesting that this is being done as reflecting either sectarian attitudes or anything of that sort. This type of legislation is unnecessary and leads to a bad situation. I hope to develop that point by suggesting that it would be much better to leave it purely to the court to decide if there is to be any exception to this age limit of 16.

Also on section 1, I would be critical of the fact that, where the court is involved, the application in any other case is to the President of the High Court or to a judge of that court nominated by the President thereof. This seems to be too restrictive. Last year we passed a Courts Bill which was to give more jurisdiction to the Circuit and District Courts.

This seems an appropriate matter on which application could be made either to the District Court or the Circuit Court or in summary manner to the High Court on the grounds that to provide only for application to the High Court would discriminate against those not living in Dublin. It could be awkward and unnecessarily restrictive to confine it to the High Court. Section 1 (3) (b) reads:

Without prejudice to the next paragraph, in determining whether it shall be granted—

(i) considerations of propriety shall first be decided on.

I would be very interested to know what are "considerations of propriety" here. Considerations of propriety shall first be decided on and then the welfare of the person in respect of whom the application is made will be considered. I hope to introduce an amendment here and to suggest very strongly that the welfare of the applicant is surely the first and paramount consideration.

I have no objection to the rest of the wording of section 1 (3) (b) where it states that "regard shall be had to the religion professed by him or her and to his or her moral, physical and social well-being". I do not understand, and am not at all impressed or persuaded by the phrase "considerations of propriety". I do not see why, in an application of this nature, they should have more importance than the person's own welfare. This is a very cumbersome and unnecessary procedure. What I would propose to do by way of amendment—I give notice of it in this way because I hope by doing so that the amendment will be received in the spirit in which it is offered—is to introduce a much simpler form such as:

A marriage solemnised within the State between persons either of whom is under the age of 16 shall, subject to subsection (2) of this section, be invalid in law.

Then we get the exceptions.

Where a person who is under the age of 16 wishes to marry an application to do so may be made to the District Court, the Circuit Court or, in a summary manner, to the High Court. Notwithstanding subsection (1) of this section, a person in respect of whom such an application has been granted shall be capable of contracting a valid marriage within the State.

That is the end of the provision. There is no necessity to have the various cumbersome religious clauses. It is not at all clear how the various authorities of religious denominations would assess this and it is not at all clear why it is proper to give them this role in creating an exception that a person under 16 may marry. I consider this an appropriate matter for an application to be made to the court.

It is rather unusual, as set out in section 1 (3) (c), to have the period of residence set at four months. It reads:

It shall not be granted unless the place of residence of the person in respect of whom it is made has, during the period of four months ending at the time of the application, been within the State.

It is normal procedure in questions of capacity to marry that the criterion is permanent residence. I am interested to know why a period of only four months residence is required in this matter.

Section 2 deals with the question of the "Lourdes marriages". I would be interested to know why this is confined to marriages celebrated in the Hautes Pyrénées. One can think of other shrines at which Irish people might have been married or, even in the future, there might be a fashionable shrine to which Irish people might go to be married.

Dr. Belton

Leinster House.

Mrs. Robinson

No, I was thinking of a religious shrine outside the country. I do not think Leinster House would qualify. Why are we specifying this one area where the problem has arisen that the religious ceremony was not part of the civil ceremony and in relation to which the country required a separate civil ceremony? There is always the possibility of introducing a further Bill at some future date or even a Bill in relation to other places where this might occur. On the actual wording of section 2, it seems unusual that the criterion of citizenship has been chosen. Under section 2 (1) (b) we read:

This section applies to a marriage which was between persons both or either of whom were or was citizens or a citizen of Ireland on the day of the marriage.

The normal wording would be "domiciled" or "permanent residence". This would be readily understood by courts of other jurisdictions. At present I think they would be puzzled at the introduction of the concept of citizenship rather than permanent residence or domicile. I use the words "permanent residence" in order to have the same basis between ourselves and the civil law jurisdictions, because they understand the concept of permanent residence. They do not have the same legal or technical concept of domicile as we do. Both in Britain and here, in the conventions on private international law now, there is a tendency to use the concept of permanent residence. The criterion here should not be citizenship of one of the parties in Ireland but permanent residence. I may have missed the point of the wording on section 2 (2) or else the subsection does not achieve the object which it wishes to achieve. The subsection states:

A marriage to which this section applies shall be and shall be deemed always to have been valid as to form if it would have been so valid had it been solemnised in the State.

I can understand the purpose of this. The purpose was to validate, retrospectively, marriages in Lourdes but has it, in fact, achieved this purpose? The criterion is a religious ceremony between persons one of whom is a citizen of Ireland. That, of itself, would not be sufficient in Ireland. It would have to take place in a registered building and it would have to take place at certain times of the day. Neither of those criteria are there, so would it, in fact, achieve the result which the Minister hopes?

It could be argued that this religious ceremony between Irish citizens would not, of itself, be valid if performed in the State. It would have to be performed in a registered building and within the appropriate times. I know that we intend changing the times but we are talking about retrospective validation. I am thinking of drafting an amendment to this subsection in which I would propose to delete "if it would have been so valid had it been solemnised in the State". In that way we could remove this problem so that the marriage would be valid as performed, which is the purpose of this section.

I should like the Minister to comment on whether he has considered the problem of those who married in Lourdes and then took legal advice on the question and were advised that there was serious doubt as to whether they were validly married. Have any of the parties to a Lourdes marriage, on realisation that there was doubt as to the validity of their marriage, decided that they were not married and remarried? If so, what are the provisions in relation to them? Are we retrospectively creating the crime of bigamy for somebody who was a party to a Lourdes marriage which was not valid at the time they entered into it and which we are making, retrospectively, valid? Are we leaving somebody who had taken part in a Lourdes marriage, and who subsequently married somebody else, open to a charge of bigamy? Is this the creation, retrospectively, of a criminal offence? Is there any evidence of whether the parties to Lourdes marriages have subsequently broken up and remarried and has their position been considered?

In this question of retrospective validation we are by no means the only country which has gone into these provisions, and it is interesting to note the problems which have arisen. I found that this was very close to what happened in an English case which came before the House of Lords: the case of Stowkovsky against the Attorney-General in 1954, appeal cases, page 155. I shall quote an extract from this in Grayson's The Conflict of Laws, 6th edition, at page 282. The facts of the situation were as follows:

In May, 1945, Enrica and Richard, domiciled Polish nationals of Roman Catholic faith, went through a religious ceremony of marriage in Austria, at a time when only civil marriage was permissible. In June, 1945, an order of the Austrian Provisional Government validated such ceremonies retrospectively, provided the marriage was subsequently registered with the appropriate registrar.

Without taking this step, Enrica and Richard became domiciled in England but separated in 1947. In 1950 Enrica declared that she was unmarried, went through a civil ceremony of marriage in England with Michael. In 1949 the religious ceremony of 1945 was registered without Enrica's knowledge in accordance with the Austrian decree of that year. Enrica was the mother of a child of each of the two unions.

The House of Lords in that case gave effect to the retrospective Austrian legislation and upheld the first as against the second marriage. I cite this case because, although the facts are not identical, the sort of problems that might arise are problems which could occur under the provision here. It is always difficult to validate retrospectively.

I wish to ask what is the position of the parties to such marriages, particularly of a party to a Lourdes marriage, who wished to avail of the apparent illegality of that marriage in order to get out of it? Has this been considered by the Minister?

I should also like to hear him on subsection (3) of section 2 on the question of registration. I notice that here "the registrar may, on production of such evidence as appears to him to be satisfactory, cause a marriage to which this section applies to be registered in a register..." Do these marriages, then, not have to be registered? Is it possible to have them registered on the application of one party and not of the other, and what was the thinking behind this question of registration? Does the registration go to the validity or is it intended that they will be valid in Ireland, even if they are not registered? These are questions which arise out of the wording of that section.

I was glad to see that on the passage of the Bill through another place it was amended to allow both parents the responsibility in relation to consent, and not the father only, as had been the case in the original draft.

I should now like to refer to the question of consent under section 7. I take it that, if the consent is refused or withheld under section 7, subsection (2), the following subsection, regarding the right to apply to the court, shall not apply in a case in which the consent is refused or withheld, or in which the guardian is unknown, of unsound mind or the whereabouts of whom would be unreasonably difficult to ascertain. I take it that applies if the consent of the guardian is refused, even if that is reasonable, to the marriage of a person under the age of 21.

I was glad to see that the Minister has retained the option of lowering that age to 18 years. Do I understand from the Second Reading speech that the Minister intends definitely to lower this age to 18, if the referendum is passed? It appeared from the Second Reading speech that this was a definite commitment.

There are some other points to which I should like to refer but, as the Bill is so complicated and so strangely drafted, it is a little difficult to find one's way. However, I shall raise them on Committee Stage.

As regards the wording of the Bill, I consider it to be a strangely and weirdly-drafted Bill. I hope this House will table amendments to remove from the Bill the many religious denominations who participate on this question of the application for a person under 16 years to marry. I hope we will have it as normal that, in the circumstances of creating an exception, an application can be made to the courts, and that we will widen the jurisdiction of the courts in this matter to include at least the Circuit Court. I should like the District Court to be included also and not merely confine it to the High Court. I realise that the President of the High Court has had a traditional function in such matters, but I do not believe it is necessary that he should be the judicial authority on a question such as this. It could be applied for in the lower courts and they should be able to look into the criteria. Some clarification is necessary on the criteria and also on the provisions of section 2 relating to the Lourdes marriages.

I should also like to be given the Minister's assurance that this is only a very minor interim Bill. Nevertheless, I am pleased to feel that the wheels are being set in motion and that the Minister is convinced of the necessity for an overhaul of the general marriage law in this country. There is one specific aspect of this which I should like to query and that is the vital necessity of introducing into the District Court's jurisdiction the possibility of granting a separation between parties to a marriage. This type of remedy is vital in cases where a woman is being physically assaulted by her husband, either because of alcoholism or because of cruelty or something of this nature. She has no remedy in the District Court. She cannot get a separation or protection from him. This is in contrast with the provisions of the Magistrates' Courts in England. There the magistrates, who are lay persons and not even judicial officers such as the District Justices, have power under the 1960 Matrimonial Proceedings (Magistrates) Act to grant a separation on specific grounds. One of these grounds is alcoholism. Another is cruelty and failure to maintain.

That is the point I was trying to make. One of the things I would like to see included in some legislative way in Marriage Bills is some specific provision for counselling and marriage guidance. As Senator Belton pointed out, the whole business of marriage, especially of younger people, which we deal with in section 1 of the Bill, is a problem of age and I agree with the amendment to legislation which now raises the age to 16 from ages 12 and 14.

Marriage at the age of 16 is difficult and creates problems. Section 1 of this Bill raises problems and the legislation deals with them in a sympathetic way. There are the problems of making exceptions for people who for some reason have to get married before the age proposed in this Bill or where one of the partners is under age and the other partner is over age and there is some reason such as to avoid immorality and the problem of having children born out of wedlock.

Section 1 has made an attempt to help these people in a constructive way. In a mixed marriage in which at least one of the partners is under 16—by a mixed marriage I mean Protestants marrying Roman Catholics —and they have to get married to avoid the child being born out of wedlock, so far as the Protestant is concerned the question of permission from the church—which means the Church of Ireland—is a pastoral matter. The other Protestant Churches regard it as being a matter for the jurisdiction of a court.

There is an area of disagreement here. There are further problems when a Protestant marries a Roman Catholic in these circumstances. The Minister and his officials have, through their consultation, made real efforts to get the churches together to work out some consensus on these difficult and delicate problems. I should like to have seen some reference, even if only a passing one, to the fact that none of these marriages will work. The incidence of breakdown in marriages of very young people is very high and none of these marriages is likely to work without real help and counselling. I should like to see something more comprehensive being done in the way of marriage guidance. It may not be possible to include this directly in this legislation, but some legislation should be introduced which would help the various local authorities to set up real marriage guidance councils and counselling facilities.

These problems differ between the cities and the rural areas. The move from rural to urban areas has brought a change in the problems that were faced 25 or 30 years ago. In the rural areas there is the problem of large numbers of people who are unmarried. In urban areas there is great pressure for early marriages, but they have financial problems and difficulties with housing.

The general provisions of this Bill to help to legalise marriages such as the Lourdes marriages and marriages which were solemnised in Church of Ireland churches, where there are problems of closure of churches and the actual details of registration were not accurate, will be applauded by everybody.

The provision in section 11 to change the marriage laws vis-à-vis Church of Ireland partners to the wording “in force from time to time” is a necessary one, as under the previous form of words marriages were not strictly legal. The provisions to make the granting of licences more flexible will help people who are involved in inter-church marriages. The Minister and his Department have the right approach and it should generate more discussion and real thinking about the problems which young people, or people of differing religions, must face.

There are great obstacles in these inter-church marriages and any legislation which helps to remove some of these obstacles is to be welcomed. This legislation makes a definite effort to help. It has been brought about by consultation between the churches involved and the Minister and his Department are to be complimented.

There are many points dealing with the specific sections of the Bill which could be more appropriately raised on the Committee Stage. I echo Senator Robinson's plea that we do not take the Committee Stage next week as I wish to do some more work on this. This is a very complex piece of legislation. It embodies moves in the right direction and if there are things which we can do in this House to imimprove this piece of legislation, we should have at least a fortnight to do the homework necessary.

Ruairí Brugha

I should like to compliment the Minister and his advisers on the numerous improvements in the situation regarding marriage and also on their having consulted all the churches concerned. There are some interesting aspects in this Bill. In sections 7 and 18 I take it the Minister means that, if the referendum for votes at 18 years is passed, the consent of parents will not be required. In other words, the age level will be reduced from 21 years to 18. This raises another point. The Bill specifies 16 years which is a very low age.

One would hope from the statistical history of marriages in recent times that the specification of 16 years and of 18 years with the parents' consent will not encourage marriages at this young age. There is evidence to suggest that some marriages among such a young age group are not very durable. It is generally accepted that a young couple have to make sacrifices in preparation for marriage and perhaps wait a time while saving to set up a home. Such marriages have a much better chance of surviving. I do not know whose responsibility it is to bring out this, perhaps it is that of the churches, but in so far as we are legislating for health some responsibility must rest on the State.

I agree with the inclusion of the different churches in section 1. Marriage is a union between two people. The first partner to that union is Almighty God. The next is the religion of which the persons are members. What we are doing is assisting. That is the function of the State. Consequently I see no reason why the different religions should not be included in this section because one has to have the approval of one's church to get married. This only refers here to those under the age of 16 years where exceptions might have to be made.

I would ask the Minister in his reply to tell us why it is necessary to refer to one church in subsection (3) and to the other different churches and representatives of religious bodies in subsection (4). It would seem to me they ought to be together. The Bill is a very necessary improvement in the situation with regard to the responsibility of the State in relation to marriage.

Minister for Health (Mr. Childers)

I thank the House for its constructive approach to this Bill. I should like to stress, first of all, that this is a patching Bill and I should warn the House that I could not possibly accept amendments of any kind that go beyond the ambit of the Bill. I cannot discuss amendments that relate to marriage guidance councils, the Ne Temere decree or to any other of the matters that have arisen in relation to various discussions which have taken place on the nature and character of marriage in the present world. I hope the House will bear with me in that.

Senator Brugha raised the point that I may make an order which has to come before the Houses of the Oireachtas reducing the age from 21 to 18 years. That means that consent to marriage by parents is not required for those aged over 18 years. He also inquired why in section 1 (3) and (4) the religions were separated into two groups. The reason for that is simply convenience arising from present legislation.

I should like to say we are dealing with a very limited number of marriages in this Bill. People who discuss the Bill sometimes forget that between 1961 and 1970 there were only 30 marriages a year in which the girl was under 16 years of age. There have been only six marriages in the whole period from 1961 to 1970 where the boy at the time of the marriage was under 16 years of age. The House may be interested to know that in 1969 the number of marriages in which one or both of the parties was under 18 years of age was of the order of 500. In 1961 the number of marriages in the State was 15,000 odd and by 1970 they had increased to 20,000 so we are dealing with a very limited situation in this Bill. From 18 years to 21 there are a very considerable number of marriages but that is a different question.

In relation to points raised by Senator Robinson, I do not intend in this Bill in any way to engage in any measure secularising the marriage ceremony. I wish to state this with absolute conviction. I am not going to take away from the religious authorities one iota of the main authority they have had in relation to the solemnisation of marriage. The Marriages Law, 1844, dealt with and provided separately for the different religions. We are following generally the pattern of that law in relation to this Bill.

The clergy have accumulated wisdom which I respect in relation to any decisions they will have to make in connection with the operation of this Bill. It is true that all the churches will have to adapt themselves to face modern problems. I quite agree with Senator West who spoke about the necessity for providing marriage guidance counselling. It is being done to a greater or lesser extent everywhere, but I do not believe it can be enforced by State legislation. This is a matter for community work and for the development of social service councils which encourage this kind of activity. The problem, as the Senator probably knows, is that in Dublin, for example, 80 per cent of the people who take this counselling are already fairly well indoctrinated and the people who need it most are not at the moment in large measure availing of it. That, again, means there is a problem of gaining the confidence of those who are getting married and having a kind of atmosphere in every parish area which would encourage everyone to take marriage guidance counselling, but it certainly cannot be part of this Bill.

If I may speak again of my unwillingness to engage in any secularisation procedure, the reason is because I look at countries which have become completely secularised—I shall not mention them by name. With all our social and moral faults in this country I would not exchange its position with any one of them for anything on earth. If in one country there is one in every 300 of the live population having treatment for venereal disease, if in another country there are two and a half legalised abortions for every birth, if in a third country there is an illegitimacy rate of between 8 and 12 per cent, I do not see any particular reason for secularising the marriage ceremony. If the divorce rate in another country is such that, in the principal city of that country one in every two couples are divorced and one in every four couples are divorced over the whole state, nobody can tell me that the mere fact of secularising the marriage ceremony will get us any further along.

Having said that, I will admit that the churches may have to take a great many measures of the kind they are only beginning to think of to face the requirements of modern society and help young people. Nevertheless, this is my view and I think it is the view of my colleagues in the Government.

Nobody raised here in any very important way the fact that we chose the age of 16 so I will not discuss the matter. There are some countries where the minimum age is 20. That specific country has not benefited particularly in any moral sense for having made the age 20 but I have not inquired into this in detail. The main point is that the age of 16 was the one on which we obtained the maximum degree of consensus among the religious authorities and in relation to societies representing women's interests.

Senator Belton welcomed the consolidation of the marriage code. He criticised drafting by reference to old Acts and not by new provisions. I quite agree with the Senator that the comprehensive Bill should stand alone and not be expressed in relation to any of the older Acts. The comprehensive Bill will take some considerable time to prepare and will require an enormous amount of consultation. Senator Belton also spoke in favour of the male being older than the female for the purpose of a Bill such as this. This is not being pronounced upon at all. All the section in the Bill says is that 16 is the minimum statutory age.

Dr. Belton

I did not say it could normally be included. I knew it could not be included in legislation.

Mr. Childers

I understand what the Senator meant. Senators Belton and Robinson asked about the meaning of the phrases "propriety" and "moral, physical and social well-being". We followed the United Nations Convention which I quoted in the Second Reading speech, which speaks of:

granting a dispensation as to age for serious reasons in the interests of the intending sponsors.

If I am extending the functions of the church I do not make any apologies for it.

Question put and agreed to.

Committee Stage ordered for Wednesday, 6th December, 1972.

Seanad Éireann díospóireacht - Thursday, 23 Nov 1972

Marriages Bill, 1972: Second Stage.

Seanad Éireann díospóireacht -
Thursday, 23 Nov 1972