hmm okay seem to have annoyed someone already

Procrastastudy

It wasnt an assignment it was a quick question I couldn't be bother to research as a tangent from some notes. Seems an odd reaction to lock the thread.

MagicSean

Good look with that degree.

Zambia

Procrastastudy

Hmm perhaps I will restate the question giving a little more background.

I actually don't need the information I would like to have it as background. It seems my flippant tone in the origonal posting has attacted an equally flippant response which is fair enough.

Without spending time reseaching though the relevant statutes, I wonder what whe ages were for giving consent to marriage - given that the Age of Majority Act 1985 states that a person obtains full age at the age of 18 unless married. This is moot now because of legislation enacted in 1997 (The name of which I forget). However I suppose it could have had some effect in a very narrow space of history.

Further tangent is just pure curiosity for ages prior to that.

Any info is most welcomed as is any challege to my ascertion that the current age is 18.

Paulw

GCDLawstudent wrote: »

Without spending time reseaching though the relevant statutes......

Why not spend some time researching?? It might prove more rewarding and might actually get you the answer. :rolleyes:

source

GCDLawstudent wrote: »

Hmm perhaps I will restate the question giving a little more background.

I actually don't need the information I would like to have it as background. It seems my flippant tone in the origonal posting has attacted an equally flippant response which is fair enough.

Without spending time reseaching though the relevant statutes, I wonder what whe ages were for giving consent to marriage - given that the Age of Majority Act 1985 states that a person obtains full age at the age of 18 unless married. This is moot now because of legislation enacted in 1997 (The name of which I forget). However I suppose it could have had some effect in a very narrow space of history.

Further tangent is just pure curiosity for ages prior to that.

Any info is most welcomed as is any challege to my ascertion that the current age is 18.

No offence mate, but if you're too lazy to research legislation, then maybe law isn't the best subject for you.

Procrastastudy

None taken - it was a flippant way to ask a question. The point is it was a throw away peice of info I don't have the time to read up on right now (or perhaps I would if my mind stopped wandering but then I probably wouldn't have asked the question in the first place!). If I come across something that requires me to look at several peices of obsolete legislation I will.

I can only appoligise for causing what seems like massive offence to people in my very first post. I guess newbies don't get any slack - I will endevour not to break anymore rules.

dermot_sheehan

OP, this board isn't meant as a means for students who are too lazy to look at irishstatutebook.ie to have a shortcut.

In fairness though the answer is trickier then it seems.


The Family Law Act 1995 says the minimum age is 18, unless an exemption order is granted by the Circuit Family Court or High Court.

Interesting issue is whether the Circuit or High Court judge has an unlimited jurisdiction to permit a person of any age to marry. Could for example a judge permit a 4 year old to marry?

At common law the position was a boy could marry at 14 and a girl at 12 (Pugh v. Pugh). Whether that has been implicitly repealed or amended by the provisions of the family law act or (the repealed marriages act) is unclear.

This is leaving aside whether or not it would be desirable for a judge to authorise a 13 year old boy or 11 year old girl to marry.

Procrastastudy

I do appreciate both points Dermot but as I keep saying it was more of a tangent - the other issue and maybe I SHOULD know is I'm not 100% sure of the best source for statutes prior to 1922 (when ISB.ie stops for obvious reasons!) AG Webby is good for some restated ones.

Anyway thank you for the info you gave me!

dermot_sheehan

www.bailii.org

go to statutes of northern ireland (it has some pre 1921 statutes that haven't been amended in relation to northern ireland are still relevant)

www.statutelaw.gov.uk has some legislation as in force in the uk today (some of which hasn't been amended and is same as when it was enacted when Ireland was part of the UK).

The Ag's website has a consolidated restatement of the sale of goods act 1893. Also some LRC reports quote relevant legislation and can be useful.

Reloc8

dermot_sheehan wrote: »

Whether that has been implicitly repealed or amended by the provisions of the family law act or (the repealed marriages act) is unclear.

S. 31(1)(a)(i) Family Law Act 1995

'A marriage solemnised after the commencement of this section between persons either of whom is under the age of 18 shall not be valid in law'

S. 31(1)c) same act

'The requirement in relation to marriage arising by virtue of paragraph (a) shall be a substantive requirement for marriage'

johnnyskeleton

Do you not realise that anything as obscure and academic as your question is unlikely to be known off hand? So the only way posters here would be able to help you with the history is to do your research for you?

Procrastastudy

I've stated my position several times now but one last time as you're a mod and you asked a direct question.

No not really - I would have thought any native (which I am not) who has been around a few years would have known. It only changed in the mid 90's - information I had researched and stated. No offense but boards is hardly the place to get reliable information - if I need something concrete I research it. If I want to drop in to a pub type conversation I post on a board. I suppose by my own logic I should expect a pub response.

It was a flippant post which I have appoligied for, but to be honest it was just something that popped into my head as I signed up to the site and had a "I wonder how this works" moment. I'm sure I'll have a hundred or so questions on capacity to contract as I go though the topic - some I'll ask the lecturer, some I'll ask peers - most I'll answer during my reading.

If I reply to a post here or indeed on any other forum I've ever joined I've always tried to be constructive I would hope for the same treatment but hey ho its the internet.

dermot_sheehan

Reloc8 wrote: »

S. 31(1)(a)(i) Family Law Act 1995

'A marriage solemnised after the commencement of this section between persons either of whom is under the age of 18 shall not be valid in law'

S. 31(1)c) same act

'The requirement in relation to marriage arising by virtue of paragraph (a) shall be a substantive requirement for marriage'

But:

33.—(1) The court may, on application to it in that behalf by both of the parties to an intended marriage, by order exempt the marriage from the application of section 31 (1) (a) or 32 (1) (a) or both of those provisions.

(2) The following provisions shall apply in relation to an application under subsection (1):

(a) it may be made informally,

(b) it may be heard and determined otherwise than in public,

(c) a court fee shall not be charged in respect of it, and

(d) it shall not be granted unless the applicant shows that its grant is justified by serious reasons and is in the interests of the parties to the intended marriage.

And as I stated, is there any control of the Circuit Court or High Court's use of this jurisdiction and is is subject to the previous common law rules on age of marriage.

Peregrinus

Prior to the 1995 Act the question was not governed by common law, but by the Marriages Act 1972, s. 1(1) of which provided that “a marriage solemnized between persons either of whom is under 16 shall . . . not be valid in law”.

Before the 1972 Act came into force (which wasn’t until 1975) the common law rules applied. As stated above, the common law age of marriage was 14 for a boy, and 12 for a girl.

S. 1(2) of the 1972 Act created an exception under which the President of the High Court could allow a marriage which would otherwise be prohibited by s. 1(1). Applications could be informal and hearings were in private. No decisions were ever reported, and it is not known if the court ever allowed the marriage of someone who was under the common law age of marriage. The question of whether the court could do so was therefore never authoritatively addressed.

I think it would be difficult to argue that this power, or the similar power which replaced it under the 1995 Act, was constrained by the old common law rules. In general, a statute supersedes the common law, and if the Oireachtas had intended to maintain an absolute age limit of 14 for boys, 12 for girls, it would have been a simple matter to say so.

I strongly suspect that the court has never been satisfied that a marriage under the old common law age “is justified by serious reasons and is in the interests of the parties”, and so the question of permitting it never arose. I find it hard to imagine that, at any time after 1975, anybody would even have contemplated approving the marriage of a 13-year old boy or an 11-year old girl.

Reloc8

dermot_sheehan wrote: »

But:


And as I stated, is there any control of the Circuit Court or High Court's use of this jurisdiction and is is subject to the previous common law rules on age of marriage.

You have to take it that the limitation on the statutory discretion is as set out in Section 33. To the extent that for instance pugh or other common law principles are inconsistent with that Section they have been 'repealed' for want of a better word.

I'm glad after accosting this student we all did the homework anyway.

dermot_sheehan

Deleted User wrote: »

I'm glad after accosting this student we all did the homework anyway.

I suppose we could accost everyone and anyone unless its a debate on the legal services bill or the usual I was caught (with some weed/drink driving/robbing supermacs/ etc etc) and want to wiggle out of it post.

And as much as we shouldn't be doing people's homework for them, OP seemed to know about the current 18 age limit and the ability to get an exemption order.

dermot_sheehan

dermot_sheehan wrote: »

I suppose we could accost everyone and anyone unless its a debate on the legal services bill or the usual I was caught (with some weed/drink driving/robbing supermacs/ etc etc) and want to wiggle out of it post.

And as much as we shouldn't be doing people's homework for them, OP seemed to know about the current 18 age limit and the ability to get an exemption order.

Oh I'm not pouring scorn on it at all. If anything I was highly amused by the fact that I've noticed all lawyers are essentially incapable of resisting a question when presented to them.

dermot_sheehan

true

Victor

Peregrinus wrote: »

Before the 1972 Act came into force (which wasn’t until 1975) the common law rules applied. As stated above, the common law age of marriage was 14 for a boy, and 12 for a girl.

Would this be subject to the Criminal Law Amendment Act, 1935 (as amended)?

There is quite a bit of legislation on the matter.

Marriages (Ireland) Act, 1844
Infant Marriage Act, 1860
Marriage Law (Ireland) Amendment Act, 1863
Registration of Marriages (Ireland) Act, 1863
Registration of Births and Deaths (Ireland) Act, 1863
Matrimonial causes and Marriage Law (Ireland) Amendment Act, 1870
Marriages (Ireland) Act, 1918
Marriages Act, 1972
Age of Majority Act, 1985
Family Law Act, 1995
Civil Registration Act 2004

McCrack

What is your source for all that statute Victor? I would be hard pressed to illicit pre independence statute at the best of times. I had a look in Murdoch there under 'marriage' and there certainly wasn't any mention of a lot of that statute.

Victor

They are listed in the newer acts (I have sorted them by date). Importantly, they are listed as amendments, not repeals.

Delancey

dermot_sheehan wrote: »

OP, this board isn't meant as a means for students who are too lazy to look at irishstatutebook.ie to have a shortcut.

In fairness though the answer is trickier then it seems.


The Family Law Act 1995 says the minimum age is 18, unless an exemption order is granted by the Circuit Family Court or High Court.

Interesting issue is whether the Circuit or High Court judge has an unlimited jurisdiction to permit a person of any age to marry. Could for example a judge permit a 4 year old to marry?

At common law the position was a boy could marry at 14 and a girl at 12 (Pugh v. Pugh). Whether that has been implicitly repealed or amended by the provisions of the family law act or (the repealed marriages act) is unclear.

This is leaving aside whether or not it would be desirable for a judge to authorise a 13 year old boy or 11 year old girl to marry.

Would the above not be a case where a Judge would probably decide based on ' Public Policy ' considerations ?

Victor

I would think so.

I can only imagine a judge consenting to such a marriage where the person is close to the age of 18, there is a solid relationship and there is a pressing need, (1) one of the parties is terminally ill or (2) marriage would profoundly improve the situation of one or both parties, e.g. an inheritance that has time restriction or (3) there are pressing cultural issues, e.g. pregnancy that has caused violence between the families - however, I think immense caution would be used here. I wonder if various permutations of adoption would be grounds.

Requirements would be:
Time sensitive.
True consent.
Pressing need.
The youngest party is not materially below the age of 18.

Peregrinus

Victor wrote: »

Would this be subject to the Criminal Law Amendment Act, 1935 (as amended)?

I don’t think so.

The 1935 Act restated the offence of unlawful carnal knowledge, making it an offence where “any person unlawfully and carnally knows” a girl under the age of 15. A similarly-worded provision created a similar but lesser offence where the victim was aged between 15 and 17. The rather archaic wording was reproduced from an earlier Victorian statute.

But carnal knowledge by a man of his wife is generally lawful. Hence a man having sex with his (underage) wife would not be unlawfully knowing her, and so would not be committing an offence under the 1935 Act.

Delancey wrote: »

Would the above not be a case where a Judge would probably decide based on ' Public Policy ' considerations ?

Probably, but since hearings are informal and reasoned judgments are never published we can’t be sure.

There used to be a similar provision in Australia, and some judgments were published. I recall cases where permission was granted where the girl was pregnant, the parents consented and the parties appeared to be mature and compatible, and the judge thought there was a good chance of the marriage succeeding. But in other cases permission was refused where the parties were members of an ethnic group in which early marriages were customary. But these cases were many years ago, and in particular they date from a time where considerable social disadvantage would result from being an unwed mother. This is no longer the case, and I suspect - but I don’t know - that nowadays permission for early marriage is very rarely granted.

I suppose it might be granted where someone is very close to the free age of marriage, and an immediate marriage is necessary for, e.g., visa or migration purposes, to avoid a family breakup. Something like that.