Well, here's an odd one ...

Victor

I wonder if there is anti-incest legislation about this? I realise it isn't strictly incest, but it is rather close.

http://home.eircom.net/content/irelandcom/topstories/7524615?view=Eircomnet

Old law blocks marriage, court is told
From:ireland.com
Saturday, 4th March, 2006

A divorced woman and her former husband's brother who wish to marry each other have brought a High Court challenge to early 20th-century legislation which, they claim, prohibits such a marriage.

The action has been brought against the State by Maura O'Shea (44), of Ballybraher, Ballycotton, Co Cork, and Michael O'Shea (49), also of Ballybraher.

When the case was mentioned before Ms Justice Mary Laffoy yesterday by Niall O'Driscoll, for the plaintiffs, the judge said she would adjourn it to the next court list to fix dates for hearing. It is expected the case will be heard in the next law term.

Ms O'Shea married John O'Shea, brother of the plaintiff, in the Catholic church at Ladysbridge, Co Cork, on October 23rd, 1980. The couple separated in 1985 and were divorced in May 2000. John O'Shea is still alive.

In their claim, Ms O'Shea and Mr O'Shea say they wish to marry each other but are prevented from doing so by certain provisions of the Deceased Wife's Sister's Marriage Act, 1907, as amended by the Deceased Brother's Widow's Marriage Act, 1921.

Because of the disputed provisions of those Acts, the plaintiffs claim their freedom of association and their right to contract marriage with each other have been wrongfully interfered with.

They also claim that, because the disputed provisions were in force immediately prior to the coming into force of the Constitution, the provisions are therefore void and inoperable.

The couple say their solicitor wrote to the Attorney General in August 2001 asking that legislation be introduced to correct the anomaly of the disputed legislation, but no such legislation had been introduced.

This failure had caused them anxiety and upset, deprived them of their legal rights under the Succession Act, 1965, and financially prejudiced them as they were unable to avail of the tax allowances for married people, it is claimed.

In their proceedings, they are seeking declarations that the relevant provisions of the 1907 and 1921 Acts are unconstitutional.

The State has denied the claims.

Thirdfox

Can one commit incest with an step-person? I.e. a girl falls in love with a boy adopted by her Father (no blood relation at all)...

Was there a similar case to this already? I think I read about a really similar case before...

dermot_sheehan

Thirdfox wrote:

Can one commit incest with an step-person? I.e. a girl falls in love with a boy adopted by her Father (no blood relation at all)...

Was there a similar case to this already? I think I read about a really similar case before...

As far as I know punishment of incest act 1908 only covers blood ancestors or descendents.

Prohibited degrees of relationship however stem from a 19th century case (can't remember name) which basically took rules out of Leviticus. Covers your family and your relations. Parliament however passed laws in the 20th century amending the situation allowing a widow to marry her husbands brother and alllowing a widower to marry his wife's sister.

However as seen in this case only covers it if they're dead, if they're alive and divorced, it would appear still within prohibited degrees of relationship for marriage.

Time Magazine

Surely this goes against the unenumerated right to marry ala Ryan v AG?

Legend case though. Wouldn't like to be either of the brothers.

thebellbouncer

LAW Project Date of case: 17th of October 2006

Place: this case it was hard in the High Court
People that was involved in the case:

Plaintiffs: Michael and Maura O'Shea

Defendants: Ireland and Attorney General

Judge: Miss Justice Laffoy

Solicitors: Don O'Connor & co (Plaintiffs)
Chief state Solicitor (Defendant)

Barrister: PJ Breen


Constitution:
Plaintiffs refused permission to Mary after the first plaintiff obtained a decree of the divorce from their second plaintiff's brother. Whether that restriction is justified having regard to other constitutional protections or the common good.
Deceased wife's sister's Marriage Act 1907 and the
Deceased Brother Widow's Marriage Act 1921

Background of the case

The second plaintive marry her former husband and October 1980. From dad marriage they got two children one have 20 years old and the second one 25 years old.
Maura and 1985 get separated by a former husband permanently a degree of divorce was granted to them in May 2000. Six months after the former husband left, a relationship developed between first plaintiff and second plaintiff and since then they have cohabitate they brought up two children's of Maura together

After Maura was granted the decree of divorce, bout plaintiffs decide to married. But...they discover that they where prohibited by law to get married.
Their solicitor was informed by a letter dated 6 December 2001 issued by General Registered Office that the provisions of the act of 1907 and 1921 prohibited them from marrying.
The provisional s.1 (2) (b) in the Act 1921 which amended the provision s. 3(2) of the Act 1907, prohibit the marriage of a man , with a divorced wife of his brother or half brother. Maura and Michael steel dreaming to marry each other and intend to do so if they are successfully in the proceedings .

The plaintiffs address

The plaintiffs believed that by the provisional of the 1921 Act they were deprived of the ability to Mary each other. In particular that they are rights to Marry freely associated with persons of their choice an establishing marital family had not been vindicated or upheld.

Because the bout plaintiffs claim will not affect just the 1907 Act but Also any law prohibiting their marriage the judge decided it was important for the case to ascertain the current state of the law prohibiting marriage on the base of affinity which has traced from 1537 to 1921 . in addition because the provision was pre the 1937 statute the provision did not enjoy a presumption of constitutionality so the onus lay on the plaintiffs to prove that provision was inconsistent with the constitution. the Judge state that the plaintiffs must prove that the provision infringed one or more of their constitutional rights.


The defendants address

The counsel for the defendant advocated that the court adopt the approach adopted by the Supreme Court in Norris vs the Attorney General [1984] IR 36 where the constitutionality off at statute of the British Parliament was at issue. The defendant's defences was based on two constitution imperatives

- The States obligation to protect the family
- To guard with special care the institute of marriage
As is provided in Article 41

Arguments from both sides

Plaintiff argument
The essence of the plaintiffs case was that any Law coming into force before the implementation of the Constitution, which would prohibit them marrying each other was not carried over by article 50 because such law would be inconsistent with the Constitution, as now and force and amended by the people since 1937 .in particular the1996 amendment for dissolution of marriage.

The plaintiff also argued that the 1996 amendment gave the second plaintiffs ( Maura) the right to remarry and the right to marry freely , associate with the person of their choice and to form a established marital family. They also pointed out that their relationship had not harmed the children of the first marriage but had provided them with a family unit as the plaintiffs had raised them together.

Other arguments from the plaintiffs

1. There was no genetic reason why persons related by affinity should not marry
2. An inconsistency in the policy affected by the existing prohibition was adverted to.
3. The proposed legislation in the context of which is the issue was being considered,legislation on the nullity of marriage.

The plaintiffs also relaid on a recent judgement of the ECHR in B and LV United Kingdom. This allowed Father in law and Daughter in law to marry.

Defendant arguments

The defiance argued that their was a danger to the institution of marriage by allowing close degrees of affinity and that a barrier should exist to prevent the possibility of marriage between these adopted siblings. They believe that allowing a marriage between a divorcing spouse and a sibling of the other spouse would undermine the stability of the marital unit.
The counsel for the defendant characterised in effect of continued prohibition a strong emotional barrier by encouraging the feeling that sibling are in the same relationship as natural brothers and sisters and so there is less likelihood of the marriage being undermined.

Other arguments from the defence are

1. The prohibition based on an affinity was based on a historic cultural tradition which was supported by a religious denominations.
2. No concern had been expressed in public discussion about the existing prohibition.
3. It was angry that the prohibition might have a sound social justification.

Evidence involved

The only evidence lead by the plaintiff was evidence of their circumstances. No evidence was adduced on behalf of of the defendants.

Defendant's summary

In all the main defence of the defendant was that the removal f the prohibition could adversely affect the stability of the family unit. They believe that removing the prohibition could lead to problem within marital unit such as confusion and pain. They argue that the prohibition encourage a strong family bond by setting clear boundary for family members and encouraging the feeling that siblings in law are the same as natural siblings thus creating a strong family unit. They also argued that the public had never mentioned the prohibition in the past and that many religious communities felt very strongly that the prohibition was important to society by providing boundaries for families.

Plaintiff's Summary
The plaintiffs main argument was that the prohibition containing in the 1921 Act was inconsistent with the modern constitution they argued that the law infringed upon their legal right to marry and was contradicted to the 1996 amendment ,which gave to the second plaintiff the dissolution of her first marriage, thus allowing her to remarry. They argued that and theirs case that they had proven that the plaintiffs relationship had not affected the family unit and had not caused any harm or distress to the children of the first marriage.
The plaintiffs also pointed out that the Law Reform Commissions concluded that,the law should abolish all prohibition based on affinity.

Judge's Summary

Miss Justice Laffoy stated that the plaintiffs were able to pursue the remedies because of the 1996 amendment which gave the circuit court the power to dissolve the second plaintiff's and this ruling gave her right to remarry. The Judge found that their provision S3 (2) was restriction on the Constitution that they too many of the plaintiffs. Miss Justice Laffoy stătea that se belived that the plaintiffs had proved the provision has not justified in regards to the state's obligation to protect the institution of marriage and in relation to the common good.

Case result.

Miss Justice Laffoy was of the view that the impugned provision was inconsistent with the plaintiff's right to marry under Article 40 . 3.1 of the constitution and ordered that there would be a declaration to that effect meaning that the plaintiff's won the case. Ruling delivered on the 17th of October 2006

My opinion

I believe that in the end the court come to right conclusion.i feel that even though there are some good reasons to keep the provisions in place ,that the amendment in 1996 gave the plaintiffs the right to marry,thus make the provision in 1907 and 1921 Acts inconsistents with the constitution.

I believe that the defence argument that the prohibition protects the family unit and avoid hurt and turmoil is a noble defence but the plaintiff's clearly show that they have created a strong family unit as they have raised the children of the previous marriage together.

In my opinion the plaintiffs argument of the provision being inconsistent with the the constitution is correct. The law was pre the 1937 constitution which means it is not granted the presumption of constitutionally and was proved to be inconsistent with the 1996 amendment

I believe that prohibition based on affinity has no real reason to be in place other than the fact it could have some bearing on family relations. It not protect families from hurt or turmoil because if parents are to separate this is obviously going to affect the family unit.also there are no genetic reasons to keep the prohibition based on affinity.

Conclusion

I Believe that the sentiment of the defence such as protecting the family unit and the people within that unit were noble. I fell that the ruling of court was the right decision as the plaintiff's are granted the right to marry whomever they want under there constitutional right

krd

dermot_sheehan wrote: »

As far as I know punishment of incest act 1908 only covers blood ancestors or descendents.

Prohibited degrees of relationship however stem from a 19th century case (can't remember name) which basically took rules out of Leviticus. Covers your family and your relations. Parliament however passed laws in the 20th century amending the situation allowing a widow to marry her husbands brother and alllowing a widower to marry his wife's sister.

However as seen in this case only covers it if they're dead, if they're alive and divorced, it would appear still within prohibited degrees of relationship for marriage.

You are right. It's not incest, and the prohibition does come from Leviticus, or and some other crazy books of the Holy Bible. The rules in Leviticus are extensive and crazy.

bellbouncer if that is a case note for college you might want to get someone to run their eye over it for grammatical errors before you hand it in. Decent note though.

thebellbouncer

Thanks , English is my second language

thebellbouncer

thebellbouncer wrote: »

Thanks , English is my second language

I assumed as much but it wasn't a criticism at all, just a friendly tip

MagicSean

So your sibling could actually be your brother-cousin? Sounds wrong to me.

Peregrinus

krd wrote: »

You are right. It's not incest, and the prohibition does come from Leviticus, or and some other crazy books of the Holy Bible. The rules in Leviticus are extensive and crazy.

It’s not that crazy. And while Leviticus has extensive rules on a lot of subjects, it’s rules on the prohibited degrees of marriage are actually quite terse. And, while Leviticus forbids a man to marry his living brother’s wife, it positively requires him to marry his deceased brother’s wife, if she is childless. So wherever English law found it’s distaste for the marriage of a man and his sister-in-law, I doubt that it was a simple lift from Leviticus.

Most societies practice both endogamy – there’s a certain group within which you are expected to marry – and all, without exception, practice exogamy – there’s a certain much smaller group that you must marry outside of.

The reason for rules of exogamy is not just genetic. Families are an important social unit, and for most of history strong and functioning families are a major factor in a society’s, and often an individual’s, success and even survival. And it’s disruptive to family relationships and destabilising to families if family members regard one another as potential marriage partners.

Hence you may not marry your father’s wife, even if she’s not your mother and therefore not related to you. You may not marry your adoptive sibling, although there is no genetic problem there. And for the same reason you may not marry your sibling’s spouse. Your brother’s wife is called your sister-in-law for a reason; you’re expected to regard her as more of a sister than a girlfriend or potential girlfriend.

Different societies have different standards in this regard, but all have some standards. In general, the more important the extended, as opposed to the nuclear, family is in social structures, the wider will be the degrees of affinity within which marriage is either flatly prohibited, or strongly discouraged. For the past hundred years or so the range of degrees of affinity within which marriage is prohibited has tended to be reduced in Western society (and this case is an example of that) and this reflects the increasingly nuclear nature of families.