The recognition of same-sex marriage is becoming an issue in many countries, and there are today 14 countries allowing same-sex marriage, including Netherlands, Spain, Portugal, Sweden, Norway, Belgium, Brazil, South Africa, Argentina, and 11 states of the United States.
In Ireland however, as Emily Geaney says, "marriage is exclusively a heterosexual union. Section 2(2)(e) of the Civil Registration Act 2004 makes it clear that parties to a marriage must be of the opposite sex". This is the reason why this essay will try to understand how Ireland deals, through conflict of laws rules, with foreign same-sex marriage.
This essay will be divided in three parts, the first one explaining the issues of recognition of marriage in conflict of laws, the second one will study the question of recognition of same-sex marriage through a founding case called the Zappone case, and the third one will explain the transformation Ireland makes from a foreign same-sex marriage to a civil partnership.
[...] Bibliography Book CLARKSON C.M.V and HILL Jonathan, The Conflict of Laws, Fourth Edition, Oxford University Press, Oxford. Articles AYLWARD, The problem in defining marriage in Boston University Law Review GEANEY Emily, Same-Sex Marriage Hibernian Law Journal MAC CORMAIC Ruadhan, Constitutional convention backs extension to same sex couples», in The Irish Times O'MAHONY Conor, Principled Expediency : How the Irish Courts Can Compromise On Same-Sex Marriage Dublin University Law Journal TOBIN Brian, Same-sex marriage in Ireland : The Rocky Road to Recognition in Irish Journal of Family Law Websites www.irishstatutebook.ie GEANEY Emily, Same-Sex Marriage Hibernian Law Journal p1. [...]
[...] Hyde v Hyde[5] is a case that involved a Mormon polygamous marriage in Utah. When the petitioner and the respondent separated, the woman married again and the petitioner asked for dissolution of the marriage in grounds of adultery. The English court rejected his demand, arguing that even if the marriage was valid according to the lex loci celebrationis, the court could not recognise such a marriage. Lord Penzance stated that marriage was the “voluntary union for life of one man and one woman, to the exclusion of all others”[6]. [...]
[...] The formal validity is linked to the ceremony and the procedures made for the validation of the marriage. For instance, the necessity to have witnesses, the location of the ceremony or the parental consent are matter linked to the formal validity. Formal validity is governed by the lex loci celebrationis, the law of the place where the marriage is celebrated, a rule that comes from the general conflict of laws rule called the locus regit actum, which means place governs the deed”[3]. [...]
[...] A few days ago, the Constitutional Convention voted in favour of an amendment of the Constitution that would allow same-sex couples to marry. The Constitutional Convention is urging the government to call a referendum. Tánaiste Eamon Gilmore welcomed the result by saying that he had always believed “that our laws reflect the past, not the future”[32]. The Tánaiste's comment and the fact that the Constitutional Convention is urging the government to amend the Constitution gives us the idea that the Constitution might become living document” in Ireland, respecting changing consensus”[33]. [...]
[...] The manner in which consent was given was the issue: as it was the manner in which the consent was given, it was a matter of formal validity, and as the lex loci celebrationis leads the formal validity, this foreign proxy marriage was recognised under Irish law. On the other hand, for the essential validity, capacity is the central element. The law that applies to the essential validity is the personal law. Capacity is something that should be determined by the place that you are from. There is a test called the dual domicile test: the first partner has to have capacity according to the law of his domicile and the second partner has to have capacity according to the place of his domicile. [...]
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