The Legal Position of Marriage in Ireland [Get yer latest thread titles here]

CDfm

Say one of our Gentlemen meets Miss Purrfect over in Brandy and Cigars. And she being the most liberated of people has him washed and dressed and brought to her tent. It being true love she starts working out the arrangements in their lives in a most equal way. How would she do it and what advice would you give her.

Over to you amanzo and lazygal:p

lazygal

I'd advise her to follow her heart Cdfm, because I'm an old softie!
I would tell her to do what she feels is right, but to be aware of the potential outcomes of marriage. It's not fair, but still the case, that women tend to fare better if a relationship goes pear-shaped if they are married than simpley cohabiting (ducks under shower of feminist rantings), as the division of assets both parties have is legally defined and usually simpler to execute.
Plus, Gentlemen, every girl wants her big day out. Don't try reasoning with her. She wants the lot (ducks again!). Unless it will bankrupt you-saw that crazy €20,000 wedding thread too-should you be the lucky man brought to my tent, CDfm, I promise a €19,999 wedding will suffice.:D
Did you think you'd learn so much when you posted this thread?!

CDfm

lazygal wrote: »

Did you think you'd learn so much when you posted this thread?!

And so nicely put to

Without once using the phrase "social construct".:D

censuspro

lazygal wrote: »

Back on prenups, amanzo (is that right?!), do you not think it's a waste of time and money getting one drawn up and notorised when they are not legally binding? From the few cases I did such "contracts" were all but tossed aside by most judges who considered them totally irrelevent and one in case, a nuisance, as solicitors should know prenups can't be enforced here? Wasting the judge's time is never a good idea, and as prenups, as we know, are not enforceable so why bother? Seems like a scam for anyone to advise getting one and I would have advised (I'm not in the business now) that they are not enforceable.
Not saying they would never be taken as evidence, as , from my experience, pretty much everything can be tossed into the pot for a family law case, but why get a solicitor to draw one up for you? One you did yourself, I would contend, would carry the same legal weight as a notorised one a solicitor would charge money for, ie none.

Yes but the point of article was that although prenups were not enforceable couples were drafting contracts anticipating that the law would change in the future.

lazygal

They would not be enforceable if the law at the time such an agreement was drawn up did not recognise them as legally binding. The Zappone ruling is quite clear that a contract, even for marriage, that is drawn up and legally binding in one jurisdiction cannot be so here if our laws differ. You can't argue another country's law here (UK is persuasive but not binding).
I gather CDfm's original point was that such a situation may pertain here in the future (ie couple's drawing them up in anticipation of a change) and if you've read the thread, its quite clear that a referendum would be needed to make such contracts enforeceable, and illegal contracts (as such prenups would be) would not be legally permissable. You can't make a previously illegal contract legal, if the law changed you'd have to draw up a whole new contract.

CDfm

censuspro wrote: »

Yes but the point of article was that although prenups were not enforceable couples were drafting contracts anticipating that the law would change in the future.

Just say thats true. You still have to live in the here and now.

So marriage is a contract how do people organise their affairs around this and is it actually possible say with specific performance. Say you have 2 people equal earnings and jobs how could they do it. Organise childcare responsibilities etc. Is it possible?

Stheno

lazygal wrote: »

Uk law may be persuasive, but in terms of marriage contract we are powerfully bound by the Consitution. Anything considered to "undermine the primary social unit of the State", which prenups are considered to do is unconstitutional

If the unconstitionality of prenups is predicated by their assuming an end to a marriage, then what if one were to take the ultra logical view that a marriage is a contract, and have a contract/partnership agreement (which a marriage essentially is) drawing up what each party were responsible for within the marriage (for the duration of the marriage but without a termination clause?)

In that case would the guidelines/contractual arrangements that the couple entered into (assuming no non constitutionality) carry weight should the couple seperate/divorce?

lazygal wrote: »

Another right is that of possession of a child. If a couple has seperated (not divorced) or is in a normal married relationship, the child of such a union cannot be offered for adoption

In relation to the above, is it incorrect then that should a child who is the product of a valid marriage be found to be in a home that results in them being taken from it by social services, that they can be offered for adoption by the State on foot of a High Court order?

Also in terms of tax, I can think of one very minor case where a married couple would be marginally (and very marginally worse off) than a non married couple, and what of the ruling by the Revenue that divorced couples who have a legally enforceable maintenance agreement can be treated as married for tax purposes?

Amazotheamazing wrote: »

The rise of negative equity has caused quite a lot of problems in family law, very often the family home is the only significant asset the parties have, and now it's unsellable so what do both parties do?

IIRC it's causing huge problems which have been reported in the press in terms of couples having to cohabit together after seperation.

Amazotheamazing

lazygal wrote: »

I did qualify my statement by saying it is mainly women who retain the right to stay in the marital home, so I don't think I misstated the point, obviously men sometimes get the right but it is mainly women.
Back on prenups, amanzo (is that right?!), do you not think it's a waste of time and money getting one drawn up and notorised when they are not legally binding? From the few cases I did such "contracts" were all but tossed aside by most judges who considered them totally irrelevent and one in case, a nuisance, as solicitors should know prenups can't be enforced here? Wasting the judge's time is never a good idea, and as prenups, as we know, are not enforceable so why bother? Seems like a scam for anyone to advise getting one and I would have advised (I'm not in the business now) that they are not enforceable.
Not saying they would never be taken as evidence, as , from my experience, pretty much everything can be tossed into the pot for a family law case, but why get a solicitor to draw one up for you? One you did yourself, I would contend, would carry the same legal weight as a notorised one a solicitor would charge money for, ie none.

Would depend on the amount of assets each party has i guess. Most people enter marriages roughly equal in terms of assets but where there is a significant disparity I don't see it as all that outrageous to have one. I can see why farmers would have one too, prevent breaking up farms which may have been in the family for generations etc.

lazygal

nouggatti wrote: »

If the unconstitionality of prenups is predicated by their assuming an end to a marriage, then what if one were to take the ultra logical view that a marriage is a contract, and have a contract/partnership agreement (which a marriage essentially is) drawing up what each party were responsible for within the marriage (for the duration of the marriage but without a termination clause?)

In that case would the guidelines/contractual arrangements that the couple entered into (assuming no non constitutionality) carry weight should the couple seperate/divorce?]

No. As I stated before, they are unenforceable in our current system as such arrangments are not legally binding. A contract for marriage is subject to terms, as with any other contract, as one term is that one cannot plan, in any way, to dissolve it, per a case from the 1930s about a Duke and Duchess (if memory serves) that drew one up and which was rejected - I've outlined why the marriage contract is subject to such terms throughout this thread. Once again, one can say one will do this or that, but what a couple draws up does not come under the law, it cannot be enforced. I really can't state that more plainly!


[In relation to the above, is it incorrect then that should a child who is the product of a valid marriage be found to be in a home that results in them being taken from it by social services, that they can be offered for adoption by the State on foot of a High Court order?]

The child would have to be made a ward of court, would have to (IMO) be "divorced" from the parents and given the status of a single legal entity. Such a case has never, AFAIK, come before the courts, mainly because it would be so difficult to unpick, social workers etc, would foster the child rather than subject it to an uncertain legal future.

[Also in terms of tax, I can think of one very minor case where a married couple would be marginally (and very marginally worse off) than a non married couple, and what of the ruling by the Revenue that divorced couples who have a legally enforceable maintenance agreement can be treated as married for tax purposes?]
Yes, and anyone who is worse off is free to take a constitutional challenge-as I stated Murphy V AG is very clear precedence in this regard and one would have a substantial chance of success.


I think I will start charging-I'm not even a family lawyer, CDfm has dragged me into this debate.:D

Stheno

No. As I stated before, they are unenforceable in our current system as such arrangments are not legally binding. A contract for marriage is subject to terms, as with any other contract, as one term is that one cannot plan, in any way, to dissolve it, per a case from the 1930s about a Duke and Duchess (if memory serves) that drew one up and which was rejected - I've outlined why the marriage contract is subject to such terms throughout this thread. Once again, one can say one will do this or that, but what a couple draws up does not come under the law, it cannot be enforced. I really can't state that more plainly!

I'd have to question that, based on guidelines given by citizens information @ http://www.citizensinformation.ie/categories/birth-family-relationships/separation-and-divorce/factors_in_separation_divorce

where they state that factors in settlement/divorce include:

The current and likely future income, earning capacity and assets of each party
The current and future financial needs and obligations of each party
The standard of living of the family before the break-up of the marriage – the court will take this into account, but in reality it will accept that, in many cases, separation will result in a drop in the standard of living of both parties
The age of each party, the duration of the marriage and the length of time the parties lived together
The accommodation needs of each party
The input each spouse has made and is likely to make to the welfare of the family – this includes any contribution made that increased the income and financial resources of the other party
The degree to which the marriage affected each party's ability to earn
The conduct of each party

When I say I'd question on that basis, it's due to the fact that many of those factors would form part of a prenup, and Citizens Information clearly states that they are factors in determining divorce settlements, so how can they be unconstitutional as agreements prior to marriage if they are factors when agreeing to the legal dissolution of marriage?

Have we another case of the Constitution being behind the times here?

CDfm

lazygal wrote: »

I think I will start charging-I'm not even a family lawyer, CDfm has dragged me into this debate.:D

And a very good debate it is too.

Stheno

lazygal wrote: »

I think I will start charging-I'm not even a family lawyer

Hey, I just like a good debate, I've spent the past few days sorting out the chaos caused by a five year old contract

lazygal

nouggatti wrote: »

I'd have to question that, based on guidelines given by citizens information @ http://www.citizensinformation.ie/categories/birth-family-relationships/separation-and-divorce/factors_in_separation_divorce

where they state that factors in settlement/divorce include:


When I say I'd question on that basis, it's due to the fact that many of those factors would form part of a prenup, and Citizens Information clearly states that they are factors in determining divorce settlements, so how can they be unconstitutional as agreements prior to marriage if they are factors when agreeing to the legal dissolution of marriage?

Have we another case of the Constitution being behind the times here?

It may be a factor-IME judges don't even look at them and there is powerful legal precedence that they are considered to be unconsitutional as they undermine the primary social unit of the state (marriage) by planning the dissolution of a contract prior to it being legally signed, sealed delivered etc. CDfm would probably be able to argue this point by now:Dand a read through the thread outlines the principles quite well (hope I'm not blowing my own trumpet).
I think we have become so used to prenups from celebrity cases that we seem to think they apply here, when they do not. As I've said, its all very well to say what the law "should" be, but one enters a system with the law as it currently stands, and as it stands, on the most basic legal level (first year Constitutional or contract law student will tell you this) prenups are not an enforeceable contract, based on common law, the Statute of Frauds and the Constitution. Ireland is not the US, where the rich guy decides how much wife number three is going to get should divorce occur, its a jurisdiction bound by all the legal principles I've laboured.

As for the Constitution being behind the times, meh. It's still a pretty good document and any citizen is free to lobby his or her TD to effect change in the legislature-thats what a representative republic is all about. If you want a change in the law, get moving and demand it, as the representatives of those lobbying for divorce did over many years. On my legal experience, prenups would require a referendum as they would affect the institution of marriage. If you want such a system, you are free to go about effecting a change.
I think its time for bed, are you coming to my tent, CDfm?:D

Stheno

lazygal wrote: »

It may be a factor-IME judges don't even look at them and there is powerful legal precedence that they are considered to be unconsitutional as they undermine the primary social unit of the state (marriage) by planning the dissolution of a contract prior to it being legally signed, sealed delivered etc. CDfm would probably be able to argue this point by now:Dand a read through the thread outlines the principles quite well (hope I'm not blowing my own trumpet).
I think we have become so used to prenups from celebrity cases that we seem to think they apply here, when they do not. As I've said, its all very well to say what the law "should" be, but one enters a system with the law as it currently stands, and as it stands, on the most basic legal level (first year Constitutional or contract law student will tell you this) prenups are not an enforeceable contract, based on common law, the Statute of Frauds and the Constitution. Ireland is not the US, where the rich guy decides how much wife number three is going to get should divorce occur, its a jurisdiction bound by all the legal principles I've laboured.

Fair point as evidenced by our maintenance laws in relation to spouses and e.g. the inability to negate one's obligations to a spouse.

You've answered my questions in relation to this and I do appreciate it

Thanks for taking the time to engage, I've really enjoyed reading your posts.

On one final point, could you tell me what article of the constitution so enshrines marriage?

CDfm

lazygal wrote: »

I think its time for bed, are you coming to my tent, CDfm?:D

:eek: I'm being objectified

lazygal

Oh lord, don't remind me of that little blue book:D. Once upon a time I could have recited the whole thing.
Its here-and pretty clear, I think we'll all agree!
article 41(3) 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

I've also been super diligent (can't believe I'm not getting paid for this!) and found the family bit for anyone interested-see below and note that "family" has always been interpreted as a married couple as per the defence of the marriage insitution above.


Article 41

1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.


Again, think these points speak for themselves and may illustrate that our consitution is actually quite a readable document.

CDfm

Lets take a step in another direction.

Getting back to who is the primary carer etc.

How many couples hook up where both work and have similar salaries etc and their financial happiness/survival depends on that.

Similarly, lots of couples share child-minding duties.

You have the countries 7000 or so house husbands.

Is there any insight into how guys can protect themselves in those situations - pre nup or not??

lazygal

Article 41
2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

This is the Constitutional position, CDfm. Well gentlemen, what do you think? Clearly I'm a woman and I find this a bit...limiting. That said, no woman has taken a case to enforce these rights (ie to be paid for her work within the home).
I would love to hear what The Gentleman's Club has to say about this. Did you know this was a provision? Is this something that requires changing before we even consider prenups?
And most importantly, CDfm, if this relationship continues to blossom, will you be reciting this on our wedding night?:D
I, as a woman, would love a male perspective on the above articles of our Consitution.

r3nu4l

lazygal wrote: »

Article 41
2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

This is the Constitutional position, CDfm. Well gentlemen, what do you think? Clearly I'm a woman and I find this a bit...limiting. That said, no woman has taken a case to enforce these rights (ie to be paid for her work within the home).
I would love to hear what The Gentleman's Club has to say about this. Did you know this was a provision? Is this something that requires changing before we even consider prenups?
And most importantly, CDfm, if this relationship continues to blossom, will you be reciting this on our wedding night?:D
I, as a woman, would love a male perspective on the above articles of our Consitution.

Well assuming that it is only women have a duty in the home is very old-fashioned but nonetheless...it's interesting because a huge number of women are 'forced' into working outside the home* because otherwise the family would be unable to have a home in the first place.

So, could someone (in this case a woman) sue the government based on the fact that they were 'forced' to work?

For instance mrs r3nu4l would love to be able to 'choose' when she wanted to work and when to take a career break to raise a family (children in this case) as we both strongly believe that the presence of at least one parent for most of the day in the earliest formative years enables us to map out eh blueprint for that childs moral viewpoints. However, our financial situation is such that we cannot see this happening. Were we living in Ireland, it would appear that we could sue the Government based on this.

However, I guess the government would look at our house and car and a judge would probably say, live in rented accommodation and you could afford to have her stay at home. It's still an interesting case!

I'm guessing that to update the constitution to include men as 'eequal' to women in this regard, even for a silly clause like this would require a referendum and therefore never happen since the cost of a referendum would be viewed as a waste of money on such a 'trivial' matter.
*Of course, a huge number of women actively want a career and that's as it should be but for this instance let's assume there are many that don't want to work

lazygal

For me, as a woman (thanks for letting me express my legal bits and bobs here guys!), this is the Holy Grail in terms of a Consitutional challenge and in my former life I would have loved to represent such a woman.
Now, the arcticle is clear, but has one proviso "The State shall endeavour". That shall is very important, and IMO, the State would argue that it can only provide so much financial/housing/benefit support or it would run out of money. That said, the Supreme Court should come down on the side of the woman's right to work within the home-as a teacher (new life) I'm amazed at how women take all responsibility for child care (organising it, payinG for it, debating it with other women) -I know its anecdotal therefore not legally binding, but such women should take a case so the State has to get its act together.
Do the guys think we need to change this? In legal terms, the provision is very clear and, IMO, blatently discriminatory, but there seems to be no appetite to change it. Does this maybe explain why fathers can have terrible time accessing their children in seperation/divorce cases? Maybe this is what we need to change rather than introduing new laws for fathers' rights.
BTW mods, we're not in Kansas anymore-this has nothing to do with prenups, maybe the thread needs a new name?! Just a suggestion. Going back to my life within the home now!

r3nu4l

lazygal wrote: »

BTW mods, we're not in Kansas anymore-this has nothing to do with prenups, maybe the thread needs a new name?! Just a suggestion. Going back to my life within the home now!

Title was changed at request but I agree. In fact, part of me is thinking of splitting some of this thread to form a new thread of its own. alternatively we could keep it all here and call it:

Marriage and the position of the State

Any takers for that?

Fascinating discussion!

lazygal

Well, its not my thread but I would say "The Legal Position of Marriage in Ireland" would be more appropriate, as the State is not the Constitution or the legal system, its more ephemeral than that. That said, maybe others have a better turn of phrase than I do.
r3 (can't remember the rest) your wife would have a strong case, but note the might of the State when others tried to assert consitutional rights, such as Magee V Attorney General when a married woman who was at risk of death due to pregnancy had to take on the State to get access to contraception. She won, but the State does hide when it comes to giving us rights enshirned in the Consitution. Maybe ask your local TD what their position is on this article and watch them squirm!

The Corinthian

There is one solution to the issue of prenups not being legally binding in Ireland - leave Ireland for where they are.

The conventions on international maintenance recovery are not solely based upon the residence of the claimant, if they were every divorcee who wanted to invalidate a prenup would move to Ireland.

Naturally this does not protect assets under Irish jurisdiction, such as property, although money is easy enough to transfer to an account in the EU that recognises prenups, such as Germany, as there are no restrictions on movement of capital - from an EU to non-EU state the limit is €10k, but there are ways around that too.

r3nu4l

Indeed, in fact man wealthy Americans get married in States where a pre-nup is legal and also serve their divorce papers on their husband/wife in that same State, sometimes getting them to return to that State under a false pretext.

I do wonder how many people would be willing to go so far as marrying in a country or State where pre-nups are legal solely on that basis?

The Corinthian

r3nu4l wrote: »

I do wonder how many people would be willing to go so far as marrying in a country or State where pre-nups are legal solely on that basis?

Not exactly what I was saying. Certainly if you both marry and divorce in a state or nation where prenups are recognised it's a slam-dunk.

However, even if you do neither but then move to a state or nation where prenups are recognised then your position becomes a lot stronger than if you stayed. Remember, international maintenance recovery may originate in the county where the claimant resides, but it still has to then be transferred and applied for in the state or nation where the target resides or the assets are located - under local law.

Can make a big difference, I'm told.

CDfm

lazygal wrote: »

And most importantly, CDfm, if this relationship continues to blossom, will you be reciting this on our wedding night?:D

Is that a proposal:D

I, as a woman, would love a male perspective on the above articles of our Consitution.

Its a bit unfair - but hey people dont know what they sign up for.

I think the lazygals guide to marriage in Ireland should be compulsory in all schools and colleges - just one class:rolleyes:

CDfm

lazygal wrote: »

Well, its not my thread but I would say "The Legal Position of Marriage in Ireland" would be more appropriate, as the State is not the Constitution or the legal system, its more ephemeral than that. That said, maybe others have a better turn of phrase than I do.

Lazygal -its a forum where you get equality and equal treatment. So I think you have made it your own by treating us all to your wise words.:)

Now - I considered changing the title to the Marriage Forum but that could be an Oxymoron-couldn't it:D

Pherekydes

lazygal wrote: »

2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

I'm sure when it was drafted nobody thought some men were going to eventually become the primary carers or house husbands, but it still doesn't excuse what is a straightforward piece of discrimination.

Maybe I should sue the state for

1. not recognising the support I give the state by working within the home and
2. not endeavouring to ensure that I should not be obliged by economic necessity to engage in labour to the neglect of my duties in the home.

CDfm

r3nu4l wrote: »

Title was changed at request but I agree. In fact, part of me is thinking of splitting some of this thread to form a new thread of its own. alternatively we could keep it all here and call it:

Marriage and the position of the State

Any takers for that?

That could be good - its very informative and Ive learned loads.

Marriage - Beginers guide to the Law

or Men and Marriage in Ireland - Bonded Slavery -The Skinny:D

lazygal

Hi again,
Wow, can't believe people have been so interested, I'm pleasantly surprised that you have found my posts interesting and have learned a little something! Given that I'm now a teacher, it is very reassuring that people have understood the principles, and find it easy enough to understand what can, at times, be quite a complex area.
I've started to wonder about something though-will any man have me after all I've learned about marriage or will I hedge my bets?:D
Maybe I missed my calling, maybe I should return to the legal world and crusade for a constitutional referendum on the "women in the home" so men don't feel so left out.:D
Anyone think the article should stay? Anyone?