Brehon law was based on private arbitration of disputes by a hereditary caste of professional judges, the Brehons. They simply judged the amount
of fines due from those guilty, and left it to extended families, patrons or
chiefs to enforce payment. Their judgements were based on customary law -
preserved in old Irish law tracts of the seventh to the ninth centuries -
on case law, and on proclamations of the local ruler. Chiefs employed
official Brehons to try cases involving their own interests, appeals from a lower
court, and fines for disobedience and tax evasion. By the 16th century, the
lord's Brehon also tried public cases of murder and theft.
Although English law and ecclesiastical law came to influence the
system, land inheritance was a very conservative area. This affected the
status of women because only men inherited family land. A female could
inherit furniture or cattle from her father, and receive settlements in
goods, or a life-interest in landed estates, from her husband. Her status
in law compared with an adult son still living in his father's house, under
paternal authority. The adult son would become emancipated later as a
landowner but women always remained under some male authority - father,
brother, husband or adult son. Such a protector had a duty to sue for any
compensation owed to the woman, to guarantee payment of any fines she incurred,
and to arrange her marriage.
A woman without brothers could inherit a life-interest in her family's land but unless she married a close cousin - as many such heiresses did - she could not pass the estate on to her children. Therefore marriages were not arranged between Gaelic ruling families for the sake of transferring estates of land from one noble lineage to another, as regularly happened in England. The key consideration in war-torn Gaelic society was that marriages should seal important political and military alliances between the chieftains' dynasties.
Another distinctive feature of Gaelic custom was that most illegitimate children had a right to share in their father's inheritance. Many daughters
of minor chieftains were given by their families as concubines to paramount
chiefs, and their sons became recognised nobles. The payment of a 'bride-price' to the concubine or her family, and the consent of her kinsmen, conferred respectability on the arrangement. Even married women were sometimes known to 'name' one or more of their children as illegitimate offspring of the local chief - once their own husband had died or they themselves were on their deathbed. If the claim was acknowledged, nobility and a right to some share in the chief's inheritance was immediately conferred on the child.
The clash between church law and these archaic secular marriage laws
meant divorce at will was common among the upper classes. The only
requirement was the return of the wife's marriage goods. Should the
rejected wife choose to contest her dismissal in the church courts (Protestant or
Catholic), the husband could usually justify himself in the church's eyes
on the frequently-occurring grounds of over-close kinship, or a previous contract of marriage to a woman still living.