Dr. Fergus Ryan:

With regard to the questions around marriage, it must be remembered this is a difficult area in which no definitive answer can be given. It is not necessarily the case that it would be unconstitutional to have a single status requirement. It is arguable the courts would respect whatever decision is made in this area. There is a strong argument that, given the divorce requirements are so tough in Ireland and potentially unmeetable in certain circumstances, the integrity of the family has been undermined so that the State would have to make a strong case to defend its approach. It is important to note it is not necessarily the case that the Constitution precludes the Legislature from enacting legislation that would recognise equal marriage, specifically in this context or generally. A strong argument has been made by many academics that the Oireachtas is perfectly entitled to enact equal marriage legislation and the courts would defer to the Oireachtas. The Oireachtas may feel its hands are tied in enacting such legislation but, in fact, from case law it is likely the courts would defer.

The European Court of Human Rights has stated that states have a margin of appreciation on the single status requirement. Accordingly, the courts have tended to defer to states on whether they require people to be unmarried or not. In Ireland, the argument can be made that because it is so difficult to divorce here the requirement of single status could potentially be disproportionate. While Article 41 does not necessarily preclude the single status requirement, the courts would be likely to defer to the Oireachtas on whatever choice it makes in this area. There is a strong argument, however, that the impact would be such that the approach would be disproportionate. I do not believe a single status requirement is necessary or proportionate in this context.

It is possible the marriages of transgender people could be annulled on various different grounds. It is not the road to choose, however, as there are significant problems with annulment. One has to deny there should ever have been a marriage in the first place and it precludes access to the various remedies one gets in divorce. The fact parties are left high and dry in this area means we should not go down this route.