Justice Minister, Frances Fitzgerald, has signalled her willingness, in light of the passage of the Bill allowing for same-sex marriage, to alter the “prohibited degrees of relationship” that currently bar people marrying those who are considered too closely related.
This raises the prospect of relationships until now considered too incestuous being permitted. The prohibited degrees of relationship (see appendix below) forbid people from marrying those considered too closely related by blood (‘consanguinity’) or by marriage (‘affinity’). (A standard definition of incest: “Sexual relations between people classed as being too closely related to marry each other.”)
The Minister was responding to David Norris in the Seanad on Tuesday as the Marriage Bill, which gives effect to the marriage referendum in May, was being debated.
Senator Norris said: “I wonder how appropriate consanguinity and affinity are for gay couples. It would not take a feather out of me if two cousins married each other. What is the problem with that? The affinity and consanguinity regulations were introduced as a measure to protect the genetic pool. The genetic pool will remain relatively untroubled by same-sex marriage.”
Minister Fitzgerald responded: “Senator Norris raised the issue of prohibited degrees of relationship. The Department of Justice and Equality and the Department of Social Protection are currently considering a review of prohibited degrees of relationship based on affinity and the prohibitions based on familial relationships by marriage. I agree with Senator Norris that some should be reviewed and we will look at that. I would add that the prohibited degrees are not exclusively about genetics but about power disparity or abuse within families. Clearly, a range of issues must be considered when we are looking at the issue.”
Based on this it appears that the Government is now willing to relax the rules around some relationships currently deemed too incestuous to permit.
From the perspective of those who support same-sex marriage, this makes sense. As Senator Norris says, “The affinity and consanguinity regulations were introduced as a measure to protect the genetic pool.”
The “genetic pool” can only be affected when a heterosexual couple who are too closely related choose to marry and have children. It cannot be affected when a homosexual couple marry for obvious reasons.
Once we take concern about the “genetic pool” out of the equation, and redefine marriage to mean not a conjugal relationship but an emotional bond, then the argument in favour of retaining all the same prohibited degrees of relationships for same-sex couples that currently exist for opposite-sex couples disappears.
But what the Norris point inadvertently makes clear is that same-sex relationships are in fact different from opposite sex relationships and this means it makes perfect sense to treat them differently. This is the number one point the No side made during the marriage referendum.
In addition, the No side said that marriage as a social institution is connected to concern for the welfare of children. This was denied by most supporters of same-sex marriage, but Senator Norris seems to have inadvertently accepted this as well when he says that we forbid people marrying those to whom they are too closely related out of concern for the “genetic pool”, that is, out of concern for the effects on children.
It will be interesting to see how this Government, or the next Government proceeds on this issue. If it removes some of the prohibited degrees of relationship for same-sex but not for opposite-sex couples, won’t it create a new form of “inequality” between opposite-sex and same-sex couples?
And if it removes them for both, what happens to concern for the “genetic pool”?
These are only some of the conundrums the Government must consider now that it has ditched the conjugal view of marriage for the new one that sees marriage as an emotional bond which, as the Referendum Commission confirmed during the referendum, two heterosexual male or females friends may enter if they so wish.
ENDS
Appendix:
Prohibited degrees of relationship (from citizensinformation.ie)
Prohibitions apply to marriage between certain people related by blood or marriage. A couple who fall within the prohibited degrees of relationship cannot marry. These prohibitions are based on:
consanguinity – blood relationship including half blood (half blood means having one parent in common, for example a half-brother)
affinity – relationship by marriage
The prohibited degrees apply to a wide range of family relationships and include marital and non-marital offspring.
An adopted child is within the prohibited degrees in relation to its natural family and adoptive parents. However, it would appear an adopted child can marry the child of his/her adoptive parents.
The Deceased Wife’s Sister Act 1907 and the Deceased Husband’s Widow’s Marriage Act 1921 allow a man to marry his deceased wife’s sister and a woman to marry her deceased husband’s brother. Following a High Court decision in October 2006, if a marriage ends due to a divorce rather than a death the prohibition on marrying no longer applies.
There is no legal restriction on the marriage of first cousins.
Consanguinity – blood relationships
A man may not marry his:
Grandmother
Mother
Father’s sister (aunt)
Mother’s sister (aunt)
Sister
Father’s Daughter (half sister)
Mother’s Daughter (half sister)
Daughter
Son’s Daughter (granddaughter)
Daughter’s Daughter (granddaughter)
Brother’s Daughter (niece)
Sister’s Daughter (niece)
A woman may not marry her:
Grandfather
Father.
Father’s Brother (uncle)
Mother’s Brother (uncle)
Brother
Father’s Son (half brother)
Mother’s Son (half brother)
Son
Son’s Son (grandson)
Daughter’s Son (grandson)
Brother’s Son (nephew)
Sister’s Son (nephew)
Affinity – relationship by marriage
A man may not marry his:
Grandfather’s Wife (step-grandmother)
Father’s Wife (stepmother)
Father’s Brother’s Wife
Mother’s Brother’s Wife
Son’s Wife
Son’s Son’s Wife
Daughter’s Son’s Wife
Brother’s Son’s Wife
Sister’s Son’s Wife
Wife’s grandmother (grandmother-in-law)
Wife’s Mother (mother-in-law)
Wife’s Father’s Sister
Wife’s Mother’s Sister
Wife’s Daughter (stepdaughter)
Wife’s Son’s Daughter
Wife’s Daughter’s Daughter
Wife’s Brother’s Daughter
Wife’s Sister’s Daughter
A woman may not marry her:
Grandmother’s Husband (step-grandfather)
Mother’s Husband (stepfather)
Father’s Sister’s Husband
Mother’s Sister’s Husband
Daughter’s Husband
Son’s Daughter’s Husband
Daughter’s Daughter’s Husband
Brother’s Daughter’s Husband
Sister’s Daughter’s Husband
Husband’s Grandfather (grandfather-in-law)
Husband’s Father (father-in-law)
Husband’s Father’s Brother
Husband’s Mother’s Brother
Husband’s Son (stepson)
Husband’s Son’s Son
Husband’s Daughter’s Son
Husband’s Brother’s Son
Husband’s Sister’s Son
