Michael McNamara (Clare, Labour) | Oireachtas source

I wish to address three issues in particular relating to the Bill. The first relates to the concept of a marriage of convenience, which my colleague, Deputy Jim Daly, mentioned.

A marriage of convenience means a marriage where at least one of the parties to the marriage, at the time of entry into the marriage, is a foreign national and enters into the marriage solely for the purpose of securing an immigration advantage for at least one of the parties to the marriage. I have at least one if not two friends whom I suspect have entered into marriages of convenience, at least based on the definition I outlined. In one case the bride was a foreign national who came to Ireland with her parents from North America. She lived practically all of her life in Ireland, as she came at the age of five and she lived in a small rural village, met her boyfriend in her teens and they lived together for a number of years. To all intents and purposes Ireland was her only home. However, she had not been registered properly and eventually her immigration status caught up with her. That said, there was no doubt that to all intents and purposes she was Irish and Ireland was her home. She was involved in a loving relationship. The couple lived together and they seemed to me to be quite happy, but who knows who is happy and who is not. From the outside it looked like a loving relationship. Perhaps it was but who knows. What is love? Is love a prerequisite to be in a relationship?

The easiest thing for them to do in order to solve her immigration status was to marry. They could have opted to make representations to Ministers and gone through the horrible immigration system we have in this country which seems to be never-ending. Most of the legal advice she got was that there was no doubt she would not be deported, and that Ireland is her home but she would probably spend a lot of money and that it would take about five or six years to sort out the mess. They said she could expect letters from the Garda Síochána, the Garda National Immigration Bureau and that she would have to travel to Dublin frequently. In effect, her time would be wasted and she would probably not be allowed to work even though she went to school in Ireland and lived here practically all her life. She was told that the easiest thing to do would be to get married. The couple got married and are still married, happily, I hope. It would seem that is the case. They have two children. One could ask whether that is a sign of a loving marriage; that the children are a result of love. I did not ask them. To all intents and purposes they are living a normal life. They are happy citizens with two children going to the local school – close to the requisite standard of 2.4 children.

I believe they would have the same life if her immigration status was not an issue; they would still have two children and be happily living together but they probably would not be married. The reason they married was to obtain an immigration advantage and to avoid the nonsense that is the Irish immigration system, which lasts forever and in which one gets tied up. There is a long list of judicial reviews to go through and Garda officers increasingly say what one cannot do when people go to register rather than what one can do. I appreciate the intention of the legislation is to capture people who have never met before but one could ask whether even that is unusual. One could talk about customs in certain countries and the payment of dowries. Does one then get into cultural subjectivities? Does one discriminate between cultures that have a dowry system and one that does not? It is a very difficult concept to legislate for. I wonder whether the Bill contains the right wording or if there is a better wording. Unfortunately, I am not certain there is.

It is not unusual for immigration status to be among the considerations involved in a decision as to whether people would marry.

If a couple is involved in a stable relationship, albeit involving an Irish national abroad, the other partner might want to come back to Ireland. People often marry knowing that it will enable a partner to move more easily.

There is the idea that the immigration status of a person may be taken into account, especially if a deportation order issues in respect of a married person. The insurmountable obstacles test used to be applied to cases where one spouse is Irish and has always lived here and the other is not an Irish citizen, although he or she may have lived here for most of his or her life. The latter may be a citizen of Liberia or any country outside western Europe and North America and an immigration official may suggest that there is no insurmountable obstacle to the couple living in the country of the non-Irish citizen. This suggestion will be made notwithstanding that one of them has never been in that country before and the other may not have been there since he or she was a toddler. If such people meet in a nightclub like any other couple, is it a marriage of convenience? It probably is. The couple are together not because of immigration status but because they want to live their lives together, like most couples. The reason for the marriage, however, is immigration status.

Another issue is impediments to marriage. This is an amendment to the Civil Registration Act 2004, which was the first legislation to note that being of the same sex is an impediment to marriage. The Government tells us there will be a referendum on this but I question the need for that. Can we not simply legislate for the issue? It will be a divisive and hurtful campaign for many people and it may not be necessary to engage the public in a referendum. After all, we Members of the Oireachtas are paid to be here and the Constitution says we are legislators, although Departments are the de facto legislators and we merely apply the rubber stamp. Do we need a referendum? I am led to believe a former Attorney General said a referendum is required on this in an opinion supplied to the Government. I have not seen this opinion nor has anyone else because no one sees the opinions of Attorneys General. Can an exception be made in this case? Is there a reason such opinions are not made available? Should such opinions be made available as a matter of course? If it is a matter where the State is being sued and there is a potential liability to the State, the Government will not wish to show its hand by publishing an opinion. Surely, however, opinions relating to matters of public importance that require the time and expense of a referendum could be published. Very few people want a referendum on this issue if it can be legislated for. That is certainly the case for most of the gay people who want to marry and to whom I have spoken. Why is it not possible to legislate for this?

I am aware of cases relating to this topic such as Murray v. Ireland and a high-profile one involving Senator Zappone. In Murray v. Ireland Mr. Justice Costello of the High Court and once of this House said the Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of partnership based on irrevocable personal consent. It is clear, then, that the judgments refer to the Christian notion of marriage in the Constitution and on this basis the court found it was acceptable for Ireland to refuse to recognise same-sex marriages from abroad. There is a world of difference, however, between saying it is acceptable for the Oireachtas not to recognise same-sex marriages and saying it would be unlawful for the Oireachtas to legislate to recognise same-sex marriages or allow same-sex marriage in Ireland.

It is clear the notion of marriage in the Constitution is based on a Christian notion of marriage, but that does not mean civil marriages are unlawful in Ireland. Even divorce is lawful in Ireland since the constitutional referendum on that issue. Our notions of what provisions of the Constitution mean constantly evolve. Many people accept that gay marriage is part of the right to have a family, that the security of family life should apply to heterosexual and homosexual people equally. I question the need for a referendum on this issue if it is possible to legislate for it.

Hard cases make bad law and section 46 of the 2004 Act reads "a marriage solemnised in the State, after the commencement of this section, between persons of any age shall not be valid in law unless the persons concerned" notify a registrar in writing three months prior to the date of the marriage or are granted an exemption from doing so by a court. I imagine the latter would apply if there was a rush to marry. Before this provision was enacted, any marriage carried out in a Catholic church where there were two witnesses was valid in the eyes of the State. The situation was slightly more complex for marriages carried out in other Christian churches and under other faiths, such as the Jewish faith, but they were still valid. What happens now if the people involved do not seek permission in advance and a priest proceeds to marry them anyway? It will be a valid Catholic marriage under Canon Law but it is not a marriage in the eyes of the State. Some might say this is not a problem - the couple can marry again in a civil ceremony - but what happens if such an arrangement only emerges after one of the parties has died? Some people marry for immigration status but some do so because death is impending and they wish marry before it occurs for various reasons, including legal and insurance reasons. What happens in these circumstances where there was no impediment to marriage and there was an intention to marry validly? Could such a marriage be recognised as valid in the eyes of the State after the fact?

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