A senior judge has said new laws may be necessary to protect very young people who may be subject to “forced” marriages here.
While Irish society is becoming increasingly diverse and the Constitution attaches great significance to equality, the rights of children and the institution of marriage, there are no laws addressing the question of forced marriages or marriages of a type where there is “no real consent”, Mr Justice John MacMenamin said.
He made the remarks in a judgment expressing serious concern for the welfare of a girl who was in care here for a time amid concerns about being allegedly forced by her conservative Muslim parents in September 2010 at age 16 to enter into a marriage here with a 29-year-old Muslim man.
The girl is now in Egypt with her parents who are in “serious contempt” of court orders, he said.
Under orders made in chambers by a Circuit Court judge here in May 2010, the girl was exempted from the statutory requirement to be aged 18 before she could marry and the requirement to give three months notice of marriage was also dispensed with.
It may be appropriate to review the fact such exemption applications may be heard in private and without any notice to the relevant state authorities, incuding the HSE, Mr Justice MacMenamin said.
Although the girl’s marriage was not registered after concerns were raised, the High Court still had to address whether the marriage bond was valid, he noted.
In this case, he had “real sympathy for a vulnerable, very young, woman who was placed in a series of impossible situations and who simply did not receive the parental support she was entitled to expect”.
The girl had wanted to stay in Ireland, had clearly not really understood the significance of the September 2010 marriage ceremony and had told teachers and social workers she did not wish to be married, he said.
The entire approach of her parents was based on a perception of marriage and parenthood which entirely failed to recognise the girl’s rights, concept of equality between men and women and had no regard for her wishes and welfare, he said.
The girl lived here from a young age with her parents and siblings, and saw Ireland as her home, he noted. Efforts to contact her in Egypt were being obstructed and there was no legal basis for seeking her return given she is over 18 and not an Irish citizen. However, the case was not over and he was adjourning it pending further information.
The judge was giving his full judgment on proceedings initiated by the HSE in 2011 after teachers and social workers expressed concerns the girl had, or was being, coerced by her parents into marriage. Because legal issues of public importance arose, the State was joined to the case.
The issues included whether the HSE had legal standing to seek to have the marriage annulled, the legal requirements of proper consent to marriage and whether the marriage was void or merely voidable.
The judge ruled the HSE was entitled to raise the issue whether the marriage was valid, particularly in proceedings designed to protect the girl’s rights as a minor.
He ruled a decree of nullity can be granted on the basis of incapacity to give true consent, even if no duress or undue influence has taken place. In this case, the court had ruled the marriage should be regarded as having never taken place and, as a matter of law, did not require a decree of nullity.
The girl was not in a position to independently express her free will and thus give a true consent to the marriage, he found.
The court hearing of the HSE’s application to annul the marriage did not address the duress issue in circumstances including that the parents, having initially strongly opposed the application, later agreed to a declaration the marriage was void due to lack of consent.
The girl’s guardian and a psychiatrist had expressed the view she was not capable of giving evidence before her parents. The girl exhibited all the symptoms of post-traumatic stress disorder, the psychiatrist said.
