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Publications:  Legal Marriage

 

 

 

Legal Marriage

The purpose of this leaflet is to outline how a marriage, registrable in Ireland, may be contracted. We refer to certain Legislation whereby the State offers support to the Institution of Marriage.

The laws relating to the contracting of a marriage do not vary much in Europe. Both parties must be free to contract the marriage. They must be a bachelor, spinster, widow, and widower or have a state annulment or a Divorce decree, which has been obtained in Ireland or have a legally recognised foreign divorce decree absolute.

For a marriage to be valid the parties must be over 18 years of age and have given 3 months notice to the Registrar for the district in which the marriage is to take place. If one or both of the parties are under 18 years of age, or if for some reason, three months notice is not practicable or possible, then both parties must make an application to either the Circuit Court or the High Court to obtain an exemption from these requirements. Further information may be obtained from your local Registrar or the General Register Office, Joyce House, Lombard Street, Dublin 2.

What supports exist in Ireland for the Legal Marriage?

The Constitution

Articles 41 and 42 of the Constitution recognise the family as the most important Unit in the State. The State guarantees to protect and defend the Institution of Marriage upon which it states the family to be founded.

Maintenance

The Family Law (Maintenance of Spouses and Children) Act 1976:
Under this Act the District and Circuit Courts have the power to make Orders against a spouse for the financial support of an applicant spouse and/or any dependent children. Such orders are now enforceable in all EU countries.

The Family Home

The Family Home Protection Act 1976 ensures that the family home (that is, the dwelling where the married couple ordinarily reside) may not be sold and/or mortgaged without mutual consent, irrespective of which spouse is the owner. Under the Act, provision is made whereby the family home may be transferred into the joint names of the spouses without incurring the payment of Stamp Duty or Registration fees.

Inheritance

The Succession Act 1965: A will which is made prior to marriage is automatically revolted upon marriage unless it is made in contemplation of the marriage.

Where no will is made:

  1. Where there are no children, the surviving spouse inherits all of the estate.
  2. Where there are children, the surviving spouse is entitled to two-thirds of the estate; the children have the right to one-third of the estate.

Where a will is made:
A surviving spouse has a legal right to the following:

  1. Where there are no children, one half of the estate.
  2. Where there are children, one third of the estate.

Taxation

Spouses may share their tax allowances. They may elect to be assessed jointly, separately, or as single persons.

Domestic Violence Act 1996

Under the Domestic Violence Act 1996, a spouse can apply for a Safety Order/a Barring Order where the conduct of the other spouse places the safety or welfare (including psychological welfare) of the other spouse at risk.

Children

The Guardianship of Infants Act 1964 confers rights and duties on both parents. Disputes about custody and access may be determined in Court. The Court will consider the child's welfare to be of paramount importance. Parents are obliged to maintain their dependent children.

Judicial Separation

Under the 1989 Judicial Separation and Family Law Reform Act and the Family Law Act 1995, an Application for a decree of Judicial Separation may be made to the Circuit Court or the High Court in cases where the spouses cannot agree to the terms of a Separation Agreement or where only one spouse wants to separate. Before the Court will grant a Decree of Judicial Separation, it must be satisfied that one of the grounds for a Judicial Separation specified in the Act, exists.

The Court has the power to make financial, property and other ancillary Orders after a Decree of Judicial Separation has been granted.

Separation Agreements

Spouses can draw up a Separation Agreement between themselves without having to go to Court. A Deed of Separation, signed and witnessed, is a legally binding contract between the two spouses. It sets out each of their rights and duties concerning children, maintenance and property. Separate legal advice should be sought before signing a Separation Agreement.

Mediation

A trained mediator helps a separating couple negotiate the terms of their separation agreement. The agreement can then be formalised.

The State Mediation Services operates at different venues throughout the country and this service is free. Private practitioners charge a fee for their service. AIM also offers a mediation service and charges a modest fee.

Note: Information concerning Mediation must be supplied by solicitors to their clients seeking Judicial Separation or Divorce. (Further information can be obtained from AIM)

Civil Annulment

The principles governing nullity have evolved in the courts through case law. A civil annulment, if obtained, determines that the marriage never existed so it is possible to remarry in law.

Social Welfare

The Social Welfare Act 1996 replaced the Lone Parent's Allowance and Deserted Wife's Benefit with One-parent Family Payment. This is payable to a 'qualified parent' with whom a qualified child normally resides. A qualified parent may be a widow, widower, a separated spouse, an unmarried person or a person whose spouse is a prisoner. This payment allows for the receipt of additional income so as not to act as a barrier to lone parents obtaining employment or returning to work. (Further information can be obtained by contacting The Department of Social Welfare)

Divorce

Under the provisions of the Family Law (Divorce) Act 1996 a spouse can seek a Decree of Divorce from either the Circuit Court or the High Court. Once a Decree is obtained, the marriage is dissolved and the parties are free to marry again.

Note: Judicially separated people may NOT remarry unless they obtain a divorce. Spouses who have obtained a Roman Catholic Church Annulment and remarry in the Catholic Church are NOT then legally married unless they have obtained either a Civil Annulment, a Divorce or a legally recognised foreign divorce.

Civil Legal Aid

This is a scheme which makes the services of solicitors and, if necessary, barristers, available to persons of modest means. Certain criteria must be met, details of which can be obtained from the Civil Legal Aid Board (Head Office) Tel: 01-661 581.

 

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All legal information provided on the AIM Family Services site is a general overview of family law relating to Ireland. Persons considering legal action should take professional legal advice, and references/contacts regarding organisations, persons, agencies etc. are given for reference only. AIM is not responsible for any act or omission arising from use of same.

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