by Conor Courtney
Ireland’s approach to marriage has made substantial strides in the last few decades. In 1996 divorce became legalised, and in 2015 we became the first country to legalise same-sex marriage through referendum. However, there are still restrictions which exist in Ireland, and elsewhere, where your choice of partner, or lack thereof, could affect your inheritance rights.
The concept of controlling someone’s marital choices has existed on a legal footing for centuries. In America, prominent cases concerned issues such as social groups, race, or religion. In Maddox v Maddox (1854) [Maddox v. Maddox, 52 Va. 804, (1854)], the testator restricted the marriage options to only members of “The Society of Friends”. Ultimately, this was found to be unreasonable, but the court admitted that reducing the pool of potential suitors was not itself unreasonable. As Christina Bonfanti argues,
The court gives no credence to the possibility that there may truly exist only one love for each person, considering only legality rather than a devisee’s personal preference. Thus, eliminating one, two or even an entire minority group, such as African-Americans in the United States, is reasonable because there are still approximately two hundred [m]illion more people from which to choose whom are not of African-American descent.
In 1879 a restriction on religious grounds was deemed valid, in Hodgson v. Halford, [Hodgson v. Halford, (1879) L. R. 11 Ch. Div. (Eng.) 959)] which required that the beneficiary marry a papist. 60 years later, Re Liberman [re Lberman, 18 N.E.2d 658, 661 (N.Y. 1939)] supported the restriction that the beneficiary marry someone of the Jewish faith. The court here argued that, “Conditions not to marry a Papist, or a Scotchman, or not to marry anybody but a Jew have been held good”.
The Irish case of Greene v Kirkwood [Greene v Kirkwood [1895] 1 IR 130] indicates a similar stance being taken near the end of the 19th century. Here, the restriction on marriage was based on the beneficiary not marrying anyone “beneath her social position”. However, the Irish position developed to recognise an inalienable right of freedom to marriage. Keily v Monck [Keily v Monck (1795) 3 Ridg.P.C. 205] argues that a restraint to marry someone with a particularly high income was so restrictive to ultimately restrict marital freedom. Lyall argues that religious requirements would be struck down in Ireland, given that these invite a great amount of uncertainty, as it is effectively impossible to determine whether someone actually professes the specified faith. [Andrew Lyall, Land law in Ireland, Ch.14].
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The restrictions based on marriage are one hurdle in testamentary gifts, but a more daunting one to many might be the requirement of marriage. The concept that you must be married to inherit under a will has found legal footing in Ireland through the case of Re Coughlan [Re Coghlan [1963] IR 246]. Here, the testator left his farm, dwelling and stock in trust for his nephew provided that his nephew marry (if not married at the time of the testator’s death) within one year from the date of his death and reside on the farm. In the event of the nephew not marrying, the farm, dwelling and stock were to be held in trust for sale and the proceeds of sale were then to be given for the celebration of masses. Here, the uncertainty about how long he had to live on the farm made this requirement void, but the requirement for marriage would have been a valid one otherwise.
Parental Blessing
Another issue for beneficiaries in Ireland is whether their parent supports the marriage, to some extent. Under Irish succession law, (S.117 of the Succession Act 1965) a child is not automatically entitled to a share of a parent’s estate, but if they are excluded for a will they may be entitled to argue that the parent failed in their moral duty to provide for them. This usually includes payment for healthcare, or education bills. However, Re McDonald [Re McDonald (2000) 1 ILRM 382] recently established that marrying someone that a parent doesn’t approve of can diminish the extend of their moral duty to provide for you. It doesn’t completely extinguish this duty, but it can limit the extent of your entitlement under a will.
Ireland has made great advances in its approach to marriage and inheritance rights, but many of these provisions remain in place, and stand as a potential source of abuse or discrimination.
