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Marriage of Lunatics Act 1811 repealed – a welcomed development

24/03/2021

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Ireland

In February 2021, Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman signed a statutory instrument (S.I. No. 24 of 2021) to commence section 7(1) of the Assisted Decision-Making (Capacity) Act 2015 (the "2015 Act"), which repealed the Marriage of Lunatics Act 1811 (the "1811 Act"). The 1811 Act had made it unlawful for wards of court to get married under any circumstances.

Capacity to Marry
In wardship, a person is declared to be of ‘unsound mind and incapable of managing his or her his affairs’. Now that section 7(1) of the 2015 Act has been commenced, where there is a query about a person’s capacity to marry, this may be the subject of an application to the Circuit Court. Of note, a finding of incapacity to marry will have no implications in relation to a person’s decision-making in other matters. The person will have full access to the Court and to legal representation and such a finding of incapacity will be subject to periodic review.

Legal Challenge
The decision to proceed with the repeal of the 1811 Act was prompted by a legal challenge brought by an intellectually disabled man who wished to marry his long-term partner. Fieldfisher wrote a previous blog on that case which can be accessed here.

New Framework
The commencement of section 7(1) of the 2015 Act is a welcomed development and represents a partial commencement of Ireland's long awaited new assisted decision making framework. When the remaining provisions of the 2015 Act are commenced, it will also abolish the wards of court system and all wards of court will have their cases reviewed and where appropriate, will transition to a modern framework of supports provided under the 2015 Act. The 2015 Act emphasises the principles of dignity, autonomy and respect for the individual will and preferences of all persons and is an essential part of Ireland's compliance with the United Nations Convention on the Rights of Persons with Disabilities.

S.I. No. 24 of 2021 can be accessed here 
 
Written by Eimear Burke, Hannah Unger and Paul Bruun-Nielsen.

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