A Convenient Marriage

to specialist support services, their right to legal aid and representation, and the role of the victim in the criminal justice process. Available procedural protections for victims of sexual crimes include the right to deliver evidence through a live television link, give a victim-impact statement at a sentencing hearing, and receive state-funded legal advice once charges have been brought against the accused. While a right to independent legal counsel for complainants throughout trial may be constitutionally suspect and practically infeasible in this jurisdiction, our narrowly tailored model of legal representation can certainly be improved upon, without compromising the procedural equality of a criminal trial. Te Criminal Law (Rape) Act 1981 could be amended to allow a barrister who represents a complainant at a hearing for an application to adduce sexual history evidence to continue to represent that complainant throughout any related questioning or cross-examination. Te provision of separate legal representation which currently only applies to cases of rape and aggravated sexual assault, could also be extended to victims of all sexual assault ofences. While we cannot tilt the balance of the criminal trial in favour of the prosecution, we can certainly ensure that our criminal processes are victim-orientated and committed to protecting the dignity, privacy and bodily integrity of all witnesses.

Ellen Hyland JS Law and Political Science Editor’s Note: This article contains references to human trafficking, which may be distressing for some readers. Jane Austen’s Pride and Prejudice transcends the cultural outlook of marriage at its time through the main character Elizabeth Bennet, who marries for love instead of wealth or status. Fortunately for women, this particular social norm has changed signifcantly over the past centuries, and people are not forced into loveless and potentially abusive marriages because of a fear of destitution. Austen’s characters are painted with a sympathetic brush: they are not seen as conning their prospective spouses, nor are they viewed as a burden on society for their decision to marry for a better quality of life rather than for love. Furthermore, the government does not involve itself in the afairs of the wedded couple, nor does it remove the benefts gained by the more impoverished spouse because of their intentions. Whilst not a perfect parallel with the current status of those entered into “green card” marriages, coined marriages of convenience in Ireland, it is interesting to note how diferently immigrants are interpreted through the same contemporary lens that sees the Bennet sisters as unlucky and desperate. In 2015, due to the Free Movement Directive passed by the European Parliament, the Minister for Justice and Equality was given the power to declare marriages which do not adhere to certain criteria as “marriages of convenience.” Tis is defned in the regulations as a marriage entered into for the sole purpose of “obtaining an entitlement” regarding the status of entry and residency for foreign nationals.

Te regulations themselves are not outwardly ominous: the sole power that the Minister has afer declaring a marriage of convenience is to “disregard” said marriage as a factor for the renewal of a residency card. Put simply, the regulations do not intend to interfere with the marriage itself, but with the benefits gained by the marriage.

Tis all changed in 2018 when a judgement by Justice Humphreys against a Pakistani man, S, found that a determination by the Minister of a marriage of convenience under the 2015 regulations rendered the marriage a nullity at law, or that it never legally existed at all. Tis gave the Minister the power to essentially throw the baby out with the bathwater - he could not only revoke the benefts to the marriage but could actually dissolve the marriage itself under the guise of immigration policy. An appeal was partially allowed in 2020 where Supreme Court Judge McKechnie overruled this position in the case of M.K.F.S. (Pakistan) and A.F. and N.F.J. (an infant suing by and through his mother and next friend A.F.) v The Minister for Justice and Equality (2020). Te judge stated that while the Minister for Justice and Equality clearly was not given the power in the regulations to render a marriage of convenience void, he lef open the possibility for a

Sex Page 20 future court to determine whether marriages of convenience in general should be a legal nullity. Judge McKechnie stated that it would be more appropriate for the Court to decide the matter in a case where an annulment is being sought on those grounds. It is not clear why this particular question was lef unanswered. Judge McKechnie remarked in his judgement that there is no one way to view marriage, and even went so far as to say that “a great number of people marry for love, but it would be a naive view of the world to assume that this holds true for everyone.” He also cited a 2017 case, afriming that the religious dogma which described marriage with words such as “special”, “lifelong”, and “Christian” in the Irish courts of the 1980s must be overlooked, given the momentous referendums on divorce and same-sex marriage, and the general diversifcation of Irish culture in the past 40 years. It was surprising that Judge McKechnie did not rule in favour of what he called the “frst view of marriage”: that marriage at its core occurs when two consenting adults satisfy certain legal requirements, regardless of intention. On the other hand, marriages of convenience have never been a straightforward issue; they are a political minefeld, and it can be safely assumed that debates regarding the topic are less about the sanctity of marriage and more about immigration. Judge McKechnie reluctance may be better understood through analysing the counter-arguments. Marriages of convenience difer from other loveless or “non-traditional” marriages because they exist mainly to derive a public beneft from the institution. Tose who marry for their parents’ satisfaction, for example, are not gaining anything from the state by getting down on one knee, but are Marriages of convenience differ only beneftting privately. Restricting these ben- efts is why the 2015 regulations allowed the from other loveless or Minister to declare a marriage of convenience exception for marriag- “non-traditional” marriages in the frst place. Making an es of convenience would make sense were it Murphy and Michael because they exist mainly not for people such as Matt O’Sullivan, two best friends who married in 2017 paying inheritance tax to derive a public benefit from the so that Michael could avoid on his Stoneybatter home. Te men were featured and in interviews they institution. prominently in the media, did not once deny the fact that the sole reason for their marriage was to be entitled to a tax exemption, a very public beneft. Te two men were not in any legal trouble for this. A more serious and unsettling reason why marriages of convenience are viewed with such scrutiny is Ireland’s current track record with human trafcking. In January of this year, the United States placed Ireland in the second worst category of countries ranked on their ability to combat human trafcking, making Ireland the single least-efcient country in Western Europe to tackle this issue. A report released in 2016 by the Immigrant Council of Ireland notes a disturbing trend of impoverished women with EU status being lured to Ireland to marry a man in order to secure immigration status for him. While this practice can be called alarming and predatory, it is not inherently tied to marriages of convenience. Te same report also states that countries such as Latvia and Estonia, which criminalised marriages of convenience, only passed on their trafcking problems to other EU countries with more lenient laws. Perhaps it would be prudent for the government to be less fxated on the intent behind marriages and more focused on reshaping what consent means where marriage is concerned. If a severely underprivileged woman is lured into the country to marry a man whom she does not know for the want of a better life, perhaps the issue is less about the immigration status of the man and more about the fact that a clearly desperate and pressurised woman is seen as autonomous and consenting in the eyes of the law when she marries him. For now, the status of marriages of convenience is lef like a coin spinning in the air, waiting for a future court decision to call it. If “heads” is declared, the court will follow England and decide that the intentions of the bride and groom do not matter. A decision such as this would appear to parallel the words of Judge McKechnie when he described Irish society as diverse and less fxated on Christian values. If the court lands “tails” up, it would follow