Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

Under the law as it stands, a registered solemniser is not permitted to solemnise a marriage except in accordance with a form of ceremony approved by an tArd-Chláraitheoir. This is set out in section 51(3)(a) of the Civil Registration Act 2004. In the case of a religious solemniser, there is an additional criterion, which is that the form of ceremony must be recognised by the religious body of which he or she is a member. This is set out in paragraph (c) of section 51, subsection (3). Paragraph (b) of that same subsection provides that the form of ceremony must also include and be in no way inconsistent with specified declarations. Those declarations are the following: a declaration by each party that he or she does not know of any impediment to the marriage; and a declaration by the parties that they accept each other as husband and wife. This second declaration is set out in section 51(4)(b), and this is where the Senator has a concern.

With the opening of marriage to same-sex couples, it would clearly be an anomaly to require two parties of the same sex to accept each other as “husband and wife”. Accordingly, section 21 slightly alters what must be included in the second declaration. Each of the parties must accept the other as a husband, a wife or a spouse, as the case may be. This is an enabling provision. A ceremony in which each party accepts the other as a spouse can be approved by an tArd-Chláraitheoir. Similarly, he can approve a ceremony in which two women accept each other as wives, or two men accept each other as husbands. Crucially, for the purposes of this discussion, nothing in the section as amended requires any change to a form of ceremony in which a woman makes a declaration accepting a man as her husband, and a man makes a declaration accepting a woman as his wife. These are still valid declarations. They are in no way inconsistent with the requirement now set out in section 51(4)(b). Any form of ceremony which is currently approved by an tArd-Chláraitheoir remains valid.

The amendment is misconceived. It seeks to remedy a problem which simply does not exist. The Senator is right in one respect, which is that forms of ceremony with changed declarations can be authorised, once this Bill is passed. However, he is wrong in suggesting that current ceremonies, with their current declarations, will in any way fall out of compliance with the requirements of the Civil Registration Act 2004. Furthermore, while forms of ceremony with revised declarations will be possible, the critical point is that churches will most certainly not be required to provide them. I would direct the Senator again to section 7, which could hardly be clearer on this point. It states: “Nothing in this Act or any other enactment shall be construed as obliging ... a religious body to recognise a particular form of marriage ceremony for the purposes of section 51(3)(c) of the Act of 2004.”A religious body will still be able to submit new forms of ceremony, and if they wish, the declarations made in those forms of ceremony can still be confined to a woman accepting a man as her husband, and a man accepting a woman as his wife.

Obviously, I cannot accept the Senator’s amendment. This section got as much detail and attention as every other section. It is redundant because the Bill takes careful and meticulous account of the position of religious bodies, and is completely respectful of the constitutional guarantee that each religious denomination shall have the right to manage its own affairs. I hope that gives an explanation of the approach in the Bill.