Same-sex marriage referendum: Legal loopholes may cast long shadow

Statistically, August is the most popular month for marriages in Ireland. Many who will marry this August have already reserved accommodation and booked the band. The Government has not been as careful in its plans, however, and unless it moves quickly, legal loopholes may cast a lengthening shadow over many a "big day".

If there is a Yes vote, the Bill to amend the Constitution will be signed into law by the President. At that moment, the new provisions will take effect, without the need for any further legislative step.

The Civil Registration Act, which currently regulates marriage ceremonies, will be out of kilter with any new constitutional provisions. For example, until it is amended, section 2(2)(e) will continue to provide that there is an impediment to a marriage “if both parties are of the same sex” and section 51(7) will provide for parties to make “a declaration . . . that they accept each other as husband and wife.”

Although inconsistent with an amended article 41, until it is amended the Act will require couples to make the declarations provided for. Will such declarations be valid? How is the chief registrar to carry out his functions pending the amendment of the Act?

The Government could have avoided these difficulties by drafting legislation to be enacted simultaneously with any amendment of the Constitution. Instead, it prepared draft heads of legislation (the Marriage Bill, 2015) which will need to be fleshed out, debated and then enacted.

All the while, couples will be married under the existing, unamended legislation.

Say the word

If the Government moves very quickly, adverse effects may be kept to a minimum, but they will not be removed.

Indeed, the proposed amending legislation will itself give rise to other issues.

If its current wording of the amending legislation is kept, the Civil Registration Act will retain the declaration based on the words “husband and wife” but will add another based on the word “spouse” aimed at same-sex marriages.

At first glance, the introduction of two separate declarations (one that the parties “accept each other as husband and wife” the other that has them accept each other “as spouses”) seems to accommodate both opposite-sex and same-sex marriage ceremonies. However, such an approach is at odds with what an amended Constitution will provide. If amended, the Constitution will not contain two parallel institutions of marriage. There will be a single institution – one which will be gender-neutral (“without distinction as to sex”).

Retaining the declaration based on the concept of “husband and wife”, and using the neutral word “spouse” to provide for same-sex couples, seems oddly out of sync with the very norms the referendum seeks to bring about. If phrases such as husband and wife are challenged, will they pass constitutional muster or will the Civil Registration Act require further amendment?

Interestingly, the Government also plans to leave the overall scheme of the Civil Registration Act intact. As a result, all ceremonies will have to be approved by the chief registrar and be “in no way inconsistent with” either of the two declarations which the Act will prescribe when amended.

Seventy per cent of marriages take place in religious ceremonies (Christian, Jewish or Muslim) most, if not all, of which explicitly and implicitly reject the concept of gender-neutral marriage. Such ceremonies risk being inconsistent with the gender-neutral declaration (“spouses of each other”) as well being at odds with the new constitutional norms.

In reverse, the same point could be made of same-sex weddings.

Will the chief registrar demand changes to ceremonies? What will happen if a solemniser refuses to make such changes? If the registrar were to approve ceremonies which reject the new characterisation of marriage, would such a ceremony be valid?

Instead of simply signing a register, would a distinct civil (and gender-neutral) ceremony be required? On a practical level, how would the 117 civil registrars cope if a high proportion of the 5,696 religious solemnisers were disqualified by the registrar?

There has been a marked reluctance to engage with legal issues thrown up by the proposed changes. This will not make them go away.

Questions regarding the constitutionality or legal effectiveness of ceremonies may arise not only in August but for many years to come – perhaps when parties are already having to confront separation, divorce or the painful process of providing for children.

Waiting until then for the questions to be answered may be a risk too far.

Benedict Ó Floinn is a practising barrister, and was on the working group on the reform of the Courts Acts