The Ryan Line - Random Musings on Law and Life

The issue of consummation of marriage has arisen in the current debate around the marriage referendum. A great deal of confusion has arisen as a result. As such, some clarification of the law may be useful in analysing claims made in relation to consummation: 1. At the moment, a marriage is voidable if either party is unable to consummate the marriage, for either physical or psychological reasons . The inability may be general or relative to one's spouse only. That is, a person may be able to avoid a marriage because they were unable, at the time of the marriage and thereafter, to have sexual intercourse with their spouse, even if they go on to have sexual intercourse with a third party. 2. Until such time as a voidable marriage is avoided, the marriage remains valid. A voidable marriage is valid, but can be avoided by one of the parties to the marriage. If but only if one of the spouses avoids the marriage, the marriage is then deemed to be void with retrospective effect. I

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

One of the issues that has arisen in the context of the marriage referendum is the precise part of the Constitution in which the proposed amendment should be placed. The proposal is that a new Article 41.4 be inserted into the article in the Constitution that deals with marriage and the family. Some on the no side argue that the amendment should have been placed in Article 40, which deals with personal rights and, in particular, in the subarticle dealing with equality (Article 40.1). Let's contemplate what might happen if the proposed marriage amendment were to be included as part of the equality guarantee (let's say as an addendum to it, or as Article 40.1.2) rather than in the Family provisions. Would many no voters vote yes if this referendum addressed Article 40.1 instead of Article 41? Probably not. It is highly unlikely many committed no voters would change their minds if this were an amendment to Article 40.1 rather than Article 41. What do the relevant provision

It’s fairly de rigueur with referendums for the discussion to veer towards issues that in fact have little to do with the referendum or are only tangentially relevant. This is no less the case with the marriage referendum.  Here is a list of things the referendum does not concern: 1. Religious marriage The referendum addresses civil marriage only, marriage in the eyes of the State. The referendum will not affect the practice of churches in relation to marriage. Churches are now free to refuse to marry whomever they wish. This will remain the case if the referendum passes. The Draft Marriage Bill 2015 confirms that no religious minister or church will be compelled to marry any two persons as a result of the passage of the referendum. Churches will be allowed to celebrate marriages of same-sex couples, but only if they wish to do so. There is already an exemption in the Equal Status Act 2000 that allows discrimination on the religion ground in the provision of religious goods