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Catch me if you can!

The saga of Irish Family law and its reluctance to reflect modern social change.

Dr Louise Crowley, Senior Lecturer in Family Law, University College Cork, Ireland

Introduction

Family law in Ireland is premised upon absolute respect for the marital family which is

accorded an elevated status in Article 41 of the Irish Constitution, where it is expressly

regarded as a unit that is superior to all positive law with inalienable and imprescriptible

rights. The normative importance of the marital union in Irish society simply cannot be over

stated and this absolute preference for the family unit founded upon marriage has hugely

influenced the State’s approach to regulating all other family formations. The lack of state

response for many years to the fact of broken marriages, as well as the growth in non-

marital based families only served to fail to respect or give any legal status and recognition

to those non-traditional families. Children born to unrecognised relationships were

regarded as “illegitimate”, whilst no legal protections or inter parte responsibilities attached

to the adult relationship in areas including maintenance, succession rights and domestic

violence.1 Such relationships did not reflect the preferred familial unit based on marriage, as

identified in Article 41 and repeatedly confirmed by the Irish courts. With reference to the

absence of legal remedies of separation or divorce, Kennedy highlighted the reality of

marital breakdown in Irish society in the mid-1980s and the hypocrisy of the conservative

laws, noting Kearney’s assertion that Ireland has,

“….been preaching one set of laws for the nation – as witnessed in our

legislation on divorce and contraception for example – but practising quite

another set of laws as individuals.”2

The heterogeneous nature of modern Irish family life mandates that Irish family law must

move away from its long held aspiration of a family based on heterosexual marriage with

identified gender specific roles. Whilst the Irish courts have resolutely defended the

longstanding Constitutional preference for the marital family, the legislature, with the

support of the Irish people has made significant progress in establishing both status and

rights for non-traditional families. This paper, in presenting a critical overview of the

reluctance of Irish lawmakers to progress laws to reflect the lived reality of many Irish

families will track the progression and shortcomings of laws to date.

1 The equalisation of the parent-child relationship irrespective of the relationship between the father and the mother of the child, was brought about by the enactment of the Status of Children Act 1987, which removed the secondary status previously afforded to children born outside wedlock, referred to as “illegitimate” children up to that point. 2 Kennedy F. Family, Economy and Government in Ireland ESRI General Research Series Paper no 143 January 1989 (ESRI) at 137, citing Kearney R “Creatively Rethinking the Breakup of the Nation State” The Irish Times 28 December 1987.

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Article 41

Since the drafting of the Irish Constitution in 1937, the most entrenched position under Irish

family law has related to the fundamental concept of the family unit and the absolute

resistance to extending the legal definition and associated protections to any family

formation other than that based on marriage. Article 41 proclaims the State’s pledge to

protect the family in its constitution and authority, whilst apparently limiting the application

of these protections to the institution of marriage, “upon which the family is founded”.

Article 41 sets out the special position of the family and expressly identifies its elevated

position and the superior nature of its status and associated rights.

“The State recognises the Family as the natural primary and fundamental unit

group of society, and as a moral institution possessing inalienable and

imprescriptible rights, antecedent and superior to all positive law.”3

Additionally, in light of this stated importance of the Family, Article 41.2 provides that:

“The State, therefore, guarantees to protect the Family in its constitution and

authority, as the necessary basis of social order and as indispensable to the

welfare of the Nation and the State."

The inclusion of this special protection is regarded as having been driven largely by Catholic

teaching and papal encyclicals at that time.4 In a memorandum from Fr Edward Cahill to

Eamon de Valera entitled “Suggestions for Drafting a new Constitution”5 with regard to the

proposed inclusion of an article dedicated to the family, he stated:

“As the unity, stability and fecundity of the family, and the purity of family

life are the first essentials for the prosperity of society, and the disintegration

of the family a certain cause of ruin, it must be the primary object of State

legislation to safeguard the unity and harmony of domestic life, the authority

of parents over their children, the security of the family homestead and the

stability of the hereditary property or estate.”6

The case law surrounding the impact of Article 41 has centred on a number of key issues;

the scope of the application of the Article 41 protection; the definition and interpretation of

the concepts of family and marriage; the nature of the constitutionally founded personal

rights particular to the marital family; the capacity of the state to limit those rights and/or

3 Article 41.1.1. 4 Hogan GW and Whyte GF J M Kelly: The Irish Constitution Lexis Nexis Butterworths (Dublin 4th edition) at 1827, with reference to Whyte JH Church and State in Modern Ireland 1923-1979 (Dublin 1980). 5 Ibid, letter dated 4 Sept 1936. 6 Hogan G The Origins of the Irish Constitution Royal Irish Academy (2012) at 234.

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interfere with the autonomy of the family and the extent of the State’s obligations in

respect of the family unit.

Despite the elevated position accorded to the family in Article 41 of the Constitution, and its

identification as the “natural primary and fundamental unit group of society”, no definition

of the family is included in Article 41. This absence of a precise definition of the family was

recognised by Costello J in Murray and Murray v Ireland.7

“‘Family’ is a word which in everyday use has many different meanings. The

Constitution does not attempt to define it but instead describes it as the

‘natural primary and fundamental unit group of society’, as a ‘moral

institution’, as ‘the basis of the social order’ and as being ‘indispensable to

the welfare of the Nation and the State’.”8

Since 1937 any attempt to define the concept of the family has been intrinsically linked to

the family based on marriage. Whilst the Constitution does not expressly define the family,

Article 41.3 outlines the State’s pledge “to guard with special care the institution of

Marriage, on which the Family is founded, and to protect it against attack.” Given the

manner in which Article 41 of the Constitution has been drafted and the express reference

to the institution of marriage in Article 41.3, the courts have thus readily regarded the scope

of the Constitutional protection of the family as limited to the family based on marriage. In

applying this more restrictive interpretation in Murphy v Attorney General,9 Hamilton J

expressly distinguished between a married couple and a cohabiting (unmarried) couple

when he observed that

“[B]y these articles the Constitution guarantees to the family, founded

on the institution of marriage, a role and a social function as the

natural primary and fundamental unit group of society which it does

not grant to individuals who live together.”10

7 [1985] ILRM 542 (HC). 8 Ibid at 546. 9 [1982] 1 IR 241. 10 Ibid at 265. The High Court declared aspects of the Income Tax Act 1967 as an unconstitutional attack on the married family in circumstances where the earnings of a married couple were more heavily taxed than an equivalent unmarried couple. The plaintiffs, alleged that the impugned provisions, discriminated in an unjust and invidious manner against married persons, and in favour of persons living together and were thus repugnant to, inter alia, Article 41 of the Constitution insofar as they served to undermine the family in its constitution and authority by holding out financial inducements to couples to live together as man and wife without entering into the obligations, duties and responsibilities of the married state. They further argued that in enacting the provisions of the 1967 Act, the Oireachtas has failed to comply with the pledge given by the State in Article 41.3 of the Constitution to guard with special care the institution of marriage on which the family is founded and to protect it against attack.

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One of the most significant cases to single out the marital family as one that attracts

constitutional protection is McGee v Ireland11 which concerned the importation of

contraceptives by the applicant, a married woman with four children, such act constituting a

criminal offence under Irish law. She had been informed by her doctor that another

pregnancy would have serious, detrimental medical consequences and would likely put her

life at risk. The plaintiff and her husband reached the decision that they would not have any

more children and to ensure this, ordered a supply of contraceptive jelly from England, such

product not being available to purchase in Ireland. The package was seized and confiscated

by customs officers. The plaintiff challenged the constitutionality of s.17(1) of the Criminal

Law Amendment Act 1935 which provided that it was unlawful for any person to sell, or

import into Ireland for sale, any contraceptive. Her claim was dismissed in the High Court,

O’Keeffe P rejected the suggestion that Article 40.3.1 included a right to privacy exercisable

by the plaintiff.12 Additionally it was held that s.17 of the impugned Act was not inconsistent

with the authority of the family which is protected by Article 41.1.2. Her appeal to the

Supreme Court was however successful, with the majority (4:1) confirming that there exists

an unenumerated constitutional right to marital privacy and that inter-spousal family

planning decisions were not an appropriate matter to attract state intervention and

regulation.

“In my view, Article 41 of the Constitution guarantees the husband and wife

against any such invasion of their privacy by the State. It follows that the use

of contraceptives by them within that marital privacy is equally guaranteed

against such invasion and, as such, assumes the status of a right so

guaranteed by the Constitution. If this right cannot be directly invaded by the

State it follows that it cannot be frustrated by the State taking measures to

ensure that the exercise of that right is rendered impossible.”13

However this unenumerated right to privacy was strictly limited to persons who were party

to a marriage. Walsh J regarded s.17 of the 1935 Act “in so far as it unreasonably restricts

the availability of contraceptives for use within marriage, is inconsistent with the provisions

of Article 41 of the Constitution for being an unjustified invasion of the privacy of husband

and wife their sexual relations with one another.”14 Similarly in delivering the judgment of

the Supreme Court, in State (Nicholaou) v An Bórd Uchtála and the AG15 in the context of

11 [1974] IR 298 (SC). 12 [1974] IR 284 (HC). 13 Supra n.11 at 313 per Walsh J. 14 Ibid at 314. 15 [1966] IR 567. The applicant Nicholaou was the natural father of the child, born in London to a woman who was an Irish citizen. The applicant strongly objected to her plan to place the child for adoption and wished to provide for the child himself. Notwithstanding this she proceeded with the adoption and without his knowledge an adoption order was made. Murnaghan J refused to quash the adoption order on the basis that the applicant lacked standing to challenge it, given that he was not “a person having charge of or control over the child”, as was required by s.16 of the 1952 Act. In the Supreme Court it was confirmed that s.16(1) did not

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the rights, if any, of an unmarried father to veto the adoption of his child, Walsh J confirmed

that the rights and duties of the family did not extend to the non-marital family:

“While it is quite true that un-married persons co-habiting together and the

children of their union may often be referred to as a family and have many, if

not all, of the outward appearances of a family, and may indeed for the

purposes of a particular law be regarded as such, nevertheless so far as

Article 41 is concerned the guarantees therein contained are confined to

families based on marriage.”16

In fact in McGee v Ireland, Walsh J regarded the submissions based on the provisions of

Article 41 as the “most important submission” given that the plaintiff’s claim was “based

upon her status as a married woman and is made in relation to the conduct of her sexual life

with her husband within that marriage”17, concluding that it is “a matter exclusively for the

husband and wife to decide how many children they wish to have...”18

This narrow interpretation of ”the family” has been maintained in more recent judicial

pronouncements, the court in WO'R v EH and An Bórd Uchtála19 confirmed that the de facto

family, in this case unmarried parents of a child, is not recognised as deserving of protection

under Article 41 of the Constitution. In the context of the guardianship claims of the

applicant sperm donor, the Supreme Court in JMcD v PL and BM and the Attorney General

(Notice Party),20 confirmed that the concept of a de facto family does not exist under Irish

law and rejected the High Court ruling of Hedigan J where at first instance he had regarded

the applicants, a same sex couple with custody of the child, as a de facto family unit capable

of asserting rights under the Constitution. Thus notwithstanding recent legislative

developments in respect of the rights of civil partners and cohabitees, it remains the

position that Article 41 can only be invoked by a member or members of a marital family.

Role of the woman in the home

The Constitutional preferential treatment of the marital family is twinned with a patriarchal

view of the domestic role of the mother within that family unit, with express constitutional

recognition in Article 41.2.1 “that by her life within the home, woman gives to the State a

support without which the common good could not be achieved.” Thus a very particular and

protective view of the marital family with designated gender-specific roles was expressly

create a right on the part of the father to be heard prior to the making of an adoption order, and this was regarded as being in line with the Constitutional protection of the family based on marriage. 16 Ibid at 643-644. 17 Supra n. 11 at 311. 18 Ibid. 19 [1996] 2 IR 248. 20 [2010] 2 IR 199.

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identified by the 1937 Constitution and has formed the basis for the State’s approach to the

regulation and almost resolute defence of the marital family since then. In light of this

special position of the woman in the home, Article 41.2.2 requires the State to “endeavour

to ensure that mothers shall not be obliged by economic necessity to engage in labour to

the neglect of their duties in the home.” This view of the role of women in Irish family life

and more broadly society, reflects a traditional view espoused by De Valera at the time of

the drafting of the Constitution. It has in more recent years been repeatedly criticised with

numerous calls for its removal or amendment. In 1993 the Second Commission on the

Status of Women called for its deletion21 whilst the 1996 Report of the Constitutional

Review Group recommended a gender neutral Constitutional provision to recognise the

contributions made by all home makers.22 Most recently at the Convention on the

Constitution23 it was recommended by a strong majority of the 100 Convention members

that the wording of Article 41.2.2 should be amended to remove the reference to women as

a select group requiring recognition and protection. 88% of the Convention members voted

in favour of the modification of the clause, and 12% voting in favour of its deletion

entirely.24 In the second report of the Convention, published in May 2013, the members of

the Convention called for the reference to the role of women in the home to be altered, for

it to be stated in a gender-neutral manner and in a way that would include other carers.

The meaning and impact of Article 41.2.2 has always been unclear, Denham J gave weight to

its value in her dissenting judgment in Sinnott v Ireland.25 Although the judgment is of very

limited precedential value given the opposing views of the other 6 judges of the Supreme

Court, her views are interesting nonetheless:

“Article 41.2 does not assign women to a domestic role. Article 41.2

recognises the significant role played by wives and mothers in the home. This

recognition and acknowledgement does not exclude women and mothers

21 Report of the Second Commission on the Status of Women (Pl 9557, 1993) at 27. 22 Report of the Constitution Review Group The Constitution Review Group, Dublin, Stationery Office, 1996 at

303-304. The Constitution Review Group was established by the government in April 1995 to review the

Constitution, and in light of this review, to establish those areas where constitutional change may be desirable

or necessary, with a view to assisting the All-Party Oireachtas Committee on the Constitution, to be

established by the Oireachtas, in its work. 23 The Convention on the Constitution is a forum of 100 people, representative of Irish society and parliamentarians with an independent Chairman. It was established in July 2012 by Resolution of both Houses of the Oireachtas. Its purpose is to consider and make recommendations on certain topics which may require future amendments to the Constitution. Upon its establishment the Fine Gael/Labour Coalition government gave an undertaking to respond to the Convention's recommendations by way of debates in the Oireachtas and where there is Oireachtas agreement, with recommendations to amend the Constitution, with the necessary referenda taking place - https://www.constitution.ie 24 Voting Results: 'Women in the Home' and the Participation of Women in Politics/Public Life (17 Feb 2013) -

https://www.constitution.ie/AttachmentDownload.ashx?mid=cee1b183-0b79-e211-a5a0-005056a32ee4 See

further Minihan M ‘Convention favours gender equality and change to ‘women in home’ clause’ Irish Times. 25 [2001] 2 IR 545.

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from other roles and activities. It is a recognition of the work of women in

the home. The work is recognised because it has immense benefit for society.

This recognition must be construed harmoniously with other Articles of the

Constitution when a combination of Articles fall to be analysed.”26

The apparent protection of the role of women in the home has been relied upon in the

course of a limited number of actions taken against the State but has never given rise to any

substantial rights for women in home, except perhaps in the context of favourable

treatment in the context of income maintenance from the State.27 In Dennehy v Minster for

Social Welfare Barron J concluded in favour of the State, stating that

“Having regard to the provision of Article 41(2), it does not seem to me that

as a matter of policy it would be unreasonable, unjust or arbitrary or the

Oireachtas to protect financially deserted wives who are mothers who have

dependent children residing with them or to recognise that mothers who

have had to care of children will have lost out in the labour market and so are

likely to need similar protection.”

Although the majority of the Supreme Court in De Burca v Attorney General28 declared the

provisions of the Juries Act 1927 that restricted the right of women to sit on a jury as

discriminatory on grounds of gender and thus an unconstitutional breach of Article 40.1,

O’Higgins CJ in his dissenting judgment relied upon Article 41.2.2 as support for a justifiable

gender-based distinction based on a woman’s difference in capacity and social function.

“In the Act of 1927 special provision has been made by providing that no

woman citizen shall appear on the jury list unless she applies for inclusion. In

either case there is a recognition of the woman's right to serve, but there is

also a recognition that for many women jury service could be a severe

burden and handicap. The State, therefore, while recognising and

safeguarding the right, permits each woman to decide for herself, in

accordance with her own circumstances and special responsibilities, whether

26 Ibid at 665. 27 Dennehy v Minster for Social Welfare Unreported High Court 26 July 1984 and Lowth v Minster for Social Welfare [1998] 4 IR 321 (SC) and [1994] 1 ILRM 378 (HC) where Article 41.2.2 was successfully relied upon by the State in two cases concerning the provision of financial State support for women who had been deserted by their husbands, where men in similar deserted circumstances were not afforded any such financial support. In concluding his finding in favour of the respondent in Lowth v Minster for Social Welfare, Hamilton CJ stated that “It is no function of this Court to adjudicate upon the merits or otherwise of the impugned legislation. It is only necessary to conclude, as this Court has done, that there were ample grounds for the Oireachtas to conclude that deserted wives were in general likely to have greater needs than deserted husbands so as to justify legislation providing for social welfare whether in the form of benefits or grants or a combination of both to meet such needs.” 28 [1976] IR 38.

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service on a jury is a right she ought to exercise or a burden she ought to

undertake. I cannot see how this can be regarded as an invidious

discrimination. In my view, it is not invidious, unjust, or unfair having regard

to the Constitution as a whole. The important feature of such special

provision is that the decision is left to the woman herself, and the right to

serve is preserved for her.”29

Similarly in O’G v Attorney General30 an attempt to rely upon Article 41.2.2 to justify the

ability of a widow but not a widower to adopt a child under s.5 (1) of the Adoption Act 1974

was rejected by the High Court as an unjustifiable denial of the capacity of widowers as a

class to be considered on their merits a suitable adopters.31

Interestingly however, notwithstanding the State’s apparent commitment to protecting this

vital contribution by women and desire to ensure that a woman is not forced by economic

circumstances to neglect her “duties” in the home, this express Constitutional preference

for a woman’s role for the benefit of her family and society more generally, is not supported

by any direct or even indirect financial support. This was highlighted in the course of the

parliamentary debates surrounding the drafting and enactment of the Judicial Separation

and Family Law Reform Act 1989, Deputy Barnes asserted that the Constitution fails to

protect women who work in the home and adopt the role of the homemaker wife in the

preferred traditional Irish family composition.

“The Constitution, with its high sounding words with regard to the value of

woman’s work in the home and the value of the family unit to society, in

legal terms offered nothing.”32

Similarly a short-lived attempt by Barr J33 to equate the domestic contributions of a married

woman in the home, to the right to a share in the family home held in her husband’s sole

name was ultimately overturned by the Supreme Court in L v L.34 What Kelly refers to as a

“laudable attempt to improve the economic situation of the home maker” was regarded as

“an usurpation of the legislative role” and the Supreme Court refused to accept that “the

transfer of any particular property right could be a general jurisdiction capable of being

29 Ibid at 59-60. 30 [1985] ILRM 61. 31 McMahon J did not accept the legislative distinction between the capacities of a widow and widower, notwithstanding what he referred to at page 65 as the recognition in Article 41.2.2 of “the social value of a mother’s services in the home”. 32 Dáil Debates Vol 377 3 Feb 1988 – Second Stages (Resumed) of the Judicial Separation and Family Law Reform Bill 1987 at 1143 per Deputy Barnes TD. 33 L v L [1989] ILRM 528 (HC). 34 [1992] 2 IR 77 (SC).

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exercised in pursuance of ...[Article 41.2.2]...of the Constitution.”35 Such legislative

intervention and direction now exists under the provisions of the Family Law Act 1995 and

the Family Law (Divorce) Act 1996, in particular in ss. 16 and 20 respectively which require

the court to have regard to domestic spousal contributions as well as career sacrifices that

may have been made by one of the spouses in order to provide support for the family in the

home.

The Ninth Report of the Convention on the Constitution, setting out the conclusions and

final recommendations of the Convention, was published in March 2014 and recommended

that Article 41.2 should be made gender-neutral to include other carers both ‘in the home’

and ‘beyond the home’ and additionally that the State should be required to offer a

reasonable level of support to ensure that carers shall not be obliged by economic necessity

to engage in labour. It also made more general regarding the incorporation of the principle

of gender-inclusive language throughout the text of the Constitution.36 In response, the

Government established a dedicated Task Force to investigate further and report back by 31

October, 2014 37 with a view to completing the task and reporting back to Government by

31 October 2014 and to prepare for a constitutional referendum. The Task Force, composed

of senior officials from the Equality and Civil Law Divisions of the Department of Justice and

Equality, was charged with addressing the recommendations of the Constitutional

Convention38 and whilst the report of the task Group was not published, its

recommendations are included in the Department of Justice Briefing Document for the

Minister published in June 2017.39 In recognising that the existing provision is “out of date”,

the Task Force recommended that support for carers should be “as determined by law” in

order to ensure that the Government and Oireachtas remain responsible for decisions on

the allocation of public funds and the determination of public policy regarding carers more

generally.40 The Task Force also noted the considerable work that had been completed on

35 Ibid at 108 per Finlay CJ. 36 Ninth Report of the Convention on the Constitution (March 2014). https://www.constitution.ie/AttachmentDownload.ashx?mid=55f2ba29-aab8-e311-a7ce-005056a32ee4 37 “Turning to issues of gender equality, the Government accepts the need to amend the language in Article 41.2 of the Constitution on the role of women in the home. I have established a task force in my Department to look at these issues, collaborating with other Departments and the Office of the Attorney General as necessary, with a view to completing the task and reporting back to Government by 31 October 2014 and to preparing for a constitutional referendum at the earliest opportunity after that.” Opening remarks by Frances Fitzgerald TD, Minister for Justice and Equality: Ireland’s appearance before the UN Human Rights Committee on International Convention on Civil and Political Rights, 14–15 July 2014. http://www.justice.ie/en/JELR/Pages/SP14000193 38 A report was prepared by the Task Force and submitted by the then Minister for the information of the Government, and subsequently published in October 2016. 39 http://www.justice.ie/en/JELR/FV_30_6_Ministerial_Brief.pdf/Files/FV_30_6_Ministerial_Brief.pdf 40 Alternatively, the Task Force recommended that support for carers be dealt with in Article 45 of the Constitution which contains Directive Principles on Social Policy and is not cognisable by the courts. The Task Force recommended that the issue of the incorporation in the Constitution of the principle of gender equality should be considered further in the wider context of the relevant recommendations of the Constitutional Review Group (1996).

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gender-inclusive language by the All-Party Committee on the Constitution in the 1990s The

report Bunreacht na hÉireann: A study of the Irish text presented a gender-proofed version

of the English text of the Constitution and a gender-inclusive version of the Irish text was

subsequently prepared for the Committee.41 The Task Force also noted that a commitment

had been given in the Programme for a Partnership Government, published in May 2016, to

hold a referendum on Article 41.2.1 regarding a “woman’s life within the home”, however

no timelines were identified.42 The new National Strategy for Women and Girls (2017-2020)

also commits to the Department taking action by 2020.43

2016 census – modern Irish society

The distinctive constitutional recognition and protection of the marital family and the

express preference for the role of the woman within the home, as compounded by judicial

pronouncements, has greatly influenced state policy as regards maintaining and supporting

the marital union. Consequently whilst the ‘special care’ pledged in Article 41.3.1 is directed

towards the institution of marriage, by definition, and pursuant to the wording of Article

41.3.1, the marital status of the parties is what makes that union a family, for the purposes

of the Constitution. However in more recent years Kennedy has noted the undeniable

changes in “social and economic conditions, and [how the]… accompanying changes in

values and policies have raised fundamental questions about the nature, role and limits of

the family.”44 The suitability of providing express Constitutional protection and associated,

supplementary legislative regulation of the marital family only, has in more recent times

been queried, given the “intrinsically organic and dynamic” nature of family entities which

expand and contract over time and are “founded on, enriched by and in some cases

destroyed by emotions and sentiments that escape legal regulation and confinement.”45 The

challenge presented by the sustaining a 1937 concept of family is particularly evident in

modern times, where family formations are significantly more diverse and the ‘traditional’

notion of a family based on marriage is far less universal. Ryan suggests, not unreasonably,

that “social trends and legislative developments are outpacing the Constitution, pushing

well beyond the boundaries of the prescriptive notion of “family” posited therein.”46

This shift from absolute societal deference in respect of the marital family and the growth in

the development of alternate family formations, has resulted in the enactment of legislative

41 Dublin, Stationery Office, 1999 http://archive.constitution.ie/publications/irish-text.pdf at 54. 42 http://www.merrionstreet.ie/MerrionStreet/en/ImageLibrary/Programme_for_Partnership_Government.pdf at 154. 43 http://www.merrionstreet.ie/MerrionStreet/en/ImageLibrary/20170503_National_Strategy_for_Women.pdf action 3.1 at 53. 44 Kennedy F supra n. 2 at 9. 45 Ryan F “Out of the Shadow of the Constitution: Civil Partnership, Cohabitation and the Constitutional Family” [2012] Irish Jurist 200. 46 Ibid at 201.

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frameworks family units. Kennedy noted the significant developments with regard to the

family in Irish society in the (then) 50 years since the publication of the Irish Constitution

and the manner in which the changing family had contributed to “great change in Irish

society and the Irish economy”.47 Quite sensibly, she recognised that the family does not

exist in a vacuum but rather in interaction with inter alia, “economic, political and religious

institutions”. The cultural, societal and moral norms that existed in 1937 and thus framed

and affected the interpretation of the Constitution have undoubtedly shifted necessitating

evolved legal frameworks to reflect societal realities. Subsequent legislative developments

have given rise to the overdue creation of regulatory frameworks to recognise and establish

legal protection for ‘second’ families, civil partners, cohabitants, unmarried parents, step

parents, and non-parent carers, both biological and otherwise.

The 2016 national census48 serves to clearly demonstrate the significant shift in norms in

Irish society and the diverse range of choices made by Irish people in respect of family

formations. Whilst of the 1,218,370 recorded families in Ireland almost 50% are married

couples with children, 152,302 are cohabiting couples, representing an increase of 8,741

couples since the previous census in 2011, and the number of cohabiting couples with

children increased by 15,318. The census recorded 6,034 same sex couples; 3442 male and

2592 female with 591 of those being couples with children. 1,539 same-sex civil

partnerships and 706 married same sex couples are recorded and 218,817 one-parent

families, comprising 89,686 single parents, 50,496 widowed and 68,378 separated or

divorced. Separately, but significantly, 36% were registered as being born outside marriage.

Of the 63,897 births registered, 23,348 were non-marital children. In light of the sustained,

conservative interpretation of Article 41 of the Irish Constitution, none of these families

attract Constitutional protection. Despite the Constitutional restrictions, the Irish legislature

has skirted the limitations and introduced legislative based frameworks which although not

equating the position of these families with the marital family, has sought to modernise Irish

laws to better reflect the choices and lived reality of so many Irish citizens.

Unmarried parents

Whilst the unmarried mother is statutorily identified as the sole guardian and custodian of

her child, it has been long established that the rights of an unmarried mother in respect of

her child, are “neither inalienable nor imprescriptive.”49 McGuinness J in NAHB, WH and PH

47 Supra n. 2 at 8. 48 http://www.cso.ie/en/media/csoie/newsevents/documents/census2016summaryresultspart1/Census2016Sum maryPart1.pdf 49 The original s.6 (4) of the 1964 Act stated that “The mother of an illegitimate infant shall be guardian of the infant.” This was amended by s.5 of the Children Act 1997 and now provides that “Where the mother of a child has not married the child’s father, she, while living, shall alone be the guardian of the child, unless the circumstances set out in section 2(4) apply, or there is in force under section 6A (inserted by the Act of 1987) or a guardian has otherwise been appointed in accordance with this Act.”

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v An Bórd Uchtála50 dispensed with the consent of the natural unmarried mother in respect

of the adoption of her biological child. The natural mother, as notice party to the

proceedings, sought to rely upon her automatic statutorily recognised rights under s.10 of

the 1964 Act as natural guardian and custodian of the child, to seek the return of her child.

This ‘right’ to custody was disputed by McGuinness J, who regarded it as by no means

absolute, citing both statutory and constitutional bases for exceptions to such a claim. In

this regard, McGuinness J noted that given the notice party’s status as an unmarried

mother, her rights in relation to her child were neither inalienable nor imprescriptible. As

regards the position of the unmarried father, only the married father has automatic rights

and status vis-à-vis his child. Only since the enactment of the Status of Children Act 1987

can the natural unmarried father apply to be appointed a guardian of his child, or by

agreement with the mother by virtue of s.4 of the Children Act 1997. The Supreme Court in

JK v VW51 confirmed that whilst the natural father now has the right to apply to be

appointed a guardian he does not have the right to be a guardian; nor does it equate his

position in law with the position of a father married to the mother of his child. Finlay CJ in

the course of his judgment stated:

“The discretion vested in the Court on the making of such an application

must be exercised regarding the welfare of the infant as the first and

paramount consideration. The blood link between the infant and the father

and the possibility for the infant to have the benefit of the guardianship by

and the society of its father is one of the many factors which may be viewed

by the court as relevant to its welfare.”52

Similarly in In WO’R v EH and An Bórd Uchtála Hamilton CJ confirmed that the blood link

between the natural father and the children will be one of the many factors for the judge to

consider, and the weight it will be given will depend on the circumstances as a whole. Thus,

in the absence of other factors beneficial to the children and in the presence of factors

negative to the children’s welfare, where the blood link is the only link between the father

and the children it is of small weight and cannot be the determining factor. But where the

children are born as a result of a stable and established relationship and nurtured at the

commencement of life by father and mother in a de facto family as opposed to a

constitutional family, the natural father on application to the court under s.6 (A) of the 1964

Act has extensive rights of interest and concern. However they are always subordinate to

the paramount concern of the court which is the welfare of the child. More recently, the

position of the natural, unmarried father was considered in very different circumstances in

JMcD v PL and BM and the Attorney General (Notice Party)53 where the child was born as a

result of an arrangement between the respondents, a lesbian couple and the applicant who

had agreed to act as sperm donor to assist the respondents in conceiving a child. Whilst the

Supreme Court unanimously recognised the applicant’s statutory right to apply for

50 [2002] 4 IR 252. 51 [1990] 2 IR 437. 52 Ibid at 447. 53 [2010] 2 IR 199.

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guardianship and other orders each judge rejected his application for guardianship,

declaring the determination to be in the best interests of the child.

The position of the unmarried father was finally received statutory attention by virtue of the

Children and Family Relationships Act 2015, which for the first time accords automatic legal

guardianship rights to fathers who have cohabited with the mother of the child for a period

of 12 months, to include 3 months post the birth of the chid. Interestingly the operation of

this novel automatic guardianship status is premised upon the fact of a period of at least 12

month of a committed heterosexual relationship between the parents, rather than the

character of the relationship or intended relationship between the father and the child.

However the longstanding discriminatory approach between married and unmarried

parents, and in turn between unmarried mothers and unmarried fathers is perpetuated,

notwithstanding this marginal improvement. Despite the unequivocal recommendation of

the Law Reform Commission in its 2010 Report on Legal Aspects of Family Relationships54

that the compulsory joint registration of births should be linked to the automatic

guardianship rights of both parents, the legislature in enacting the 2015 provisions has

desisted from such an equality-based approach. Ultimately the Act seeks to modernise the

law regarding parental rights of children in diverse family forms whilst the court to regard

the best interests of the child as the paramount consideration in making orders. The

unmarried father of the child will now have automatic guardianship status where he has

lived with the mother of the child for a period of 12 months, including 3 months following

the birth of the child. Additionally a person who is not a child’s parent may apply for

guardianship

- if the person has shared responsibility for caring for the child with the child’s parent

for at least two years and is married to or a civil partner of the child’s parent, or has

lived with the child’s parent for at least three years, or

- if the person has taken responsibility for caring for the child for at least a year and

the child has no parent or guardian able and willing to care for her or him.

Same-sex couples and Cohabitants

The 1998 Report of the Commission on the Family restated the fundamental significance of

the role of the marital family in Irish society and the importance of continuity and stability in

family relationships:

“…marriage as a visible public institution, underpinned by contractual

obligations, presents clear advantages from a public policy perspective,

in promoting security and stability in family life and in providing

continuity in society.”

54 Law Reform Commission Report on Legal Aspects of Family Relationships LRC 101-2010

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The All-Party Oireachtas Committee on the Constitution 10th Progress Report entitled ‘The

Family’ did consider the definition of the family, but rejected any proposal that an

expansion ought to be considered. Rather the report opined that rights for families other

than married families were a matter for the legislature, and any such developments had to

respect the elevated and unique position of the married family. In this context, the

enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act

2010 was a ground-breaking development under Irish law insofar as it gave legal recognition

and status to non-marital adult relationships, both heterosexual and homosexual. In

essence it created two frameworks; a statutory mechanism for the registration of same-sex

partnerships with associated statutory-based inter parte responsibilities, both in the course

of the relationship and in the event of its dissolution; and secondly, a framework of

entitlements for qualifying cohabitants, to govern both opposite sex and same sex

cohabiting relationships. The monumental social and legal significance of this development

cannot be overstated, representing the recognition of non-marital family formations in a

jurisdiction heretofore concerned only with the homogenous heterosexual marriage. On

introducing the Bill to the Irish Oireachtas, the then Minister for Justice and Law Reform

Dermot Ahern acknowledged this watershed moment in Irish family law.

“The Civil Partnership and Certain Rights and Obligations of Cohabitants Act

2010 was historic because it facilitated the recognition of same sex

relationships for the first time though a scheme that allowed the parties to

declare their allegiance to each other formally and to register their

partnership which would be recognised by the State. This official registration

brought with it a number of duties and responsibilities for the people

involved. While many have dwelt on the changes brought about by the

recognition of same sex relationships, the Act also introduced provisions to

address the position of cohabiting couples, both same sex and opposite sex

couples, where the relationships ended. The redress scheme established in

the Act provided a safety net for an economically dependent cohabitant at

the end of the relationship, whether by separation or death.”55

With reference to the positioning of these newly recognized family units within the

hierarchy of Irish family law, Ahern acknowledged the tensions faced by the

lawmakers in respecting the demands of the Constitution, whilst developing Irish law

to better reflect the lived reality of Irish citizens.

“We are fulfilling that commitment based on existing circumstances, namely,

that on the one hand we have a constitutional imperative to support

55 Dáil debates 1 July 2010 Fifth stage Vol 714 No 2, noting later that “This is one of the most important items of civil rights legislation that has come before the House for some time. It makes a clear and powerful statement to gay people that they will never again have their status or relationship ignored.”

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marriage and on the other a constitutional imperative to treat everybody

equally before the law. The legislation is a fine balance between the two.”56

In enacting the 2010 Act, the legislature sought to equalise the treatment of parties to a

same-sex civil partnership with the position of married couples, insofar as was

constitutionally permissible. Thus in the context of financial provision and entitlements, the

legislature to a large extent provided the same or very similar inter parte remedies for

parties to a civil partnership as with marriage. All such entitlements arise by virtue of the

fact of the civil partnership thereby reflecting a respect for the significance of the legal and

moral commitment arising.

The 2010 Act regulates shared home protection, maintenance, succession, domestic

violence, and the nullity and dissolution of a civil partnership. Part 5 of the 2010 Act

establishes an obligation to provide maintenance for a civil partner, the amount and

duration to be determined by the court in line with what it regards ‘proper’ in the

circumstances,57 taking account of income, earning capacity, property, financial

responsibilities to each other; obligations and responsibilities to any children; obligations

towards any former partners or spouses and the conduct of each of the civil partners. The

automatic spousal legal right shares, both on testacy and intestacy created by the

Succession Act 1965 are now extended by Part 8 of the 2010 Act to apply equally to civil

partners. Part 12 of the 2010 Act provides for an extensive suite of entitlements relating to

all aspects of possible financial obligations, to mirror those applications that can be made on

separation and divorce, namely, periodical payments and lump sum orders, property

adjustment orders, miscellaneous ancillary orders including orders relating to the shared

home, financial compensation order and pension adjustment orders. As regards dissolution,

again in deference to the need to protect the marital family above all, s.110 makes it easier

for a civil partnership to be dissolved, the court can grant a decree of dissolution in respect

of a civil partnership if it is satisfied that at the date of the institution of the proceedings, the

civil partners have lived apart from one another for a period of, or periods amounting to, at

least two years during the previous three years, as distinct from the four out of five years

requirement of, once proper provision in the circumstances is made for the civil partners.

Part 15 of the 2010 Act establishes the regulatory framework for cohabitants, which applies

equally to opposite and same sex couples but certainly does not equalise their position with

that of spouses or even civil partners. The importance of recognising both obligations and

entitlements arising from the lifestyle and living arrangements of a couple, even where they

have not elected to legally formalise their relationship was a very deliberate move by the

State to nonetheless establish legal responsibilities and entitlements. Uniquely, the rights

and responsibilities arising for cohabitants are automatically conferred upon them where

certain requirements have been fulfilled; no elective nor registration requirement.

56 Ibid. 57 Section 45.

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“It will provide protection in law for long-term cohabiting couples by

establishing a safety net for a financially dependent cohabitant at the end of

the relationship. On break-up, a financially dependent cohabitant may apply

to the court for maintenance from the other cohabitant, or possibly for a

pension adjustment order or a property adjustment order. If the relationship

ends on death, a dependent cohabitant may apply to the court for provision

from the estate of the deceased if, as often happens, no provision is made

for the surviving cohabitant. The courts will have substantial discretion in

considering such applications.”58

Section 172(1) of the 2010 Act provides that a cohabitant is “...one of 2 adults whether of

the same or the opposite sex who live together as a couple in an intimate and committed

relationship, and who are not related to each other within the prohibited degrees of

relationship or married to each other or civil partners of each other.” Evidently where

disputed, this requires a judgement to be made by the court in respect of the nature of the

relationship in question. In determining whether two adults are cohabitants, the court is

required to take into account all the circumstances of the relationship, and in particular shall

have regard to the following:

“(a) the duration of the relationship;

(b) the basis on which the couple live together;

(c) the degree of financial dependence of either adult on the other and any agreements

in respect of their finances;

(d) the degree and nature of any financial arrangements between the adults including

any joint purchase of an estate or interest in land or joint acquisition of personal

property;

(e) whether there are one or more dependent children;

(f) whether one of the adults cares for and supports the children of the other; and

(g) the degree to which the adults present themselves to others as a couple.”59

To be regarded as qualified cohabitants, and thus eligible for inter parte financial

entitlements on death or relationship breakdown, the parties musts have cohabited for a

period of five years, or two years where they have a child. 60 The qualified cohabitant can

now rely upon “redress in respect of economically dependent qualified cohabitant”61

although the rights are not as extensive as those created in the same Act for civil partners.

Firstly in order to successfully apply for relief under the relevant sections of Part 15 a

58 Dermot Ahern - Seanad Éireann - Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009: Second Stage at 140-141. 59 Section 172(2). 60 Once a person comes within the s.172 definition of a “qualified cohabitant” their position is greatly strengthened in the event of the breakdown of the relationship. 61 The title accorded to s. 173 of the Act.

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qualified cohabitant must also fulfil the stated criteria set out in s.173, which focus upon the

fact of financial dependency on the part of the applicant cohabitant, on the respondent

cohabitant. Thus crucially, the test is set out ins.173 and requires as an absolute

requirement that the applicant qualified cohabitant satisfies the court

“...that he or she is financially dependent on the other cohabitant and that

the financial dependence arises from the relationship or the ending of the

relationship, the court may, if satisfied that it is just and equitable to do so in

all the circumstances, make the order concerned.”62

Where these requirements are fulfilled, the court is then required to make a determination

as to whether it is just and equitable in all the circumstances to make an order in favour of

the applicant cohabitant. In so determining, the court is required to have regard to the

following:

“(a) the financial circumstances, needs and obligations of each qualified

cohabitant existing as at the date of the application or which are likely to

arise in the future,

(b) subject to subsection (5), the rights and entitlements of any spouse or

former spouse,

(c) the rights and entitlements of any civil partner or former civil partner,

(d) the rights and entitlements of any dependent child or of any child of a

previous relationship of either cohabitant,

(e) the duration of the parties’ relationship, the basis on which the parties

entered into the relationship and the degree of commitment of the parties to

one another,

(f) the contributions that each of the cohabitants made or is likely to make in

the foreseeable future to the welfare of the cohabitants or either of them

including any contribution made by each of them to the income, earning

capacity or property and financial resources of the other,

(g) any contributions made by either of them in looking after the home,

(h) the effect on the earning capacity of each of the cohabitants of the

responsibilities assumed by each of them during the period they lived

together as a couple and the degree to which the future earning capacity of a

qualified cohabitant is impaired by reason of that qualified cohabitant having

relinquished or foregone the opportunity of

remunerative activity in order to look after the home,

(i) any physical or mental disability of the qualified cohabitant, and

(j) the conduct of each of the cohabitants, if the conduct is such that, in the

opinion of the court, it would be unjust to disregard it.”63

62 Section 173(2). 63 Section 173(3) (a)-(j).

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The over-riding protection of the marital family is again evident in the courts determination

of any application for relief, s.173(5) prohibits the court from making any order in favour of

a qualified cohabitant where it “would affect any right of any person to whom the other

cohabitant is or was married.” The ancillary financial relief orders that can be made mirror

those available on the dissolution of marriage, and relief can be sought in the form of one or

more of the following: property adjustment orders,64 compensatory maintenance orders,65

attachment of earnings order,66 pension adjustment order67 and provision from the estate

of a deceased cohabitant.68

Perhaps most significantly in distinguishing the relative positioning of the cohabiting

relationship in the evident hierarchy of family formations, s.202 of the 2010 Act accepts the

validity of a cohabitants’ agreement, and protects the capacity of cohabitants to contract

out of the new statutory scheme providing that notwithstanding rights otherwise arising by

operation of law, ...“cohabitants may enter into a cohabitants’ agreement to provide for

financial matters during the relationship or when the relationship ends, whether through

death or otherwise.”69 This contrasts sharply from the court’s constitutional obligation to be

satisfied that all financial and other arrangements upon divorce constitute proper provision

for the parties in the individual circumstances.

Bizarrely (or not!) the 2010 Act was entirely silent on the issue of children. Rather than

acknowledge the unquestionable reality of same sex and cohabiting couples raising children,

as evidenced by national census data over the last 15 years, the Irish lawmakers chose to

64 Section 174. 65 Section 175. 66 Section 176, with related issues governed by ss. 177-186. 67 Section 187 with related issues governed by ss. 188-192. 68 Section 194. As with the general tenet of Irish family law, the regulatory framework incorporates an ongoing

right to seek a variation of the arrangements in place, s. 173(6) permits either qualified cohabitant to apply to

the court for an order to

“(a) vary or discharge an order under section 175 or 187,

(b) suspend any provision of such an order,

(c) suspend temporarily any provision of such an order,

(d) revive the operation of a suspended provision,

(e) further vary an order previously varied under this section, or

(f) further suspend or revive the operation of a provision previously suspended or revived under this section. 69 However such an agreement is only valid if the cohabitants have complied with the statutory pre-requisites

outlined in s. 202(2). This only allows for the agreement to be recognised as valid if the cohabitants have each

received independent legal advice before entering into it, or have received legal advice together and have

waived in writing the right to independent legal advice, the agreement is in writing and signed by both

cohabitants, and the general law of contract is complied with. Finally for the purposes of certainly, s. 202(3)

expressly provides that the agreement remains valid even where it excludes the right of both cohabitants to

seek redress as provided by s. 173 or equally if it excludes the right to apply for provision from the estate of his

or her cohabitant under s.194. However this right to privately agree the rights and obligations, if any, arising

from the cohabiting relationship is not absolute and the court retains a residual power under s. 203(4) to vary

or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause

serious injustice.

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sidestep the issue and failed to include any protection of, or rights for children within family

units otherwise governed by the 2010 Act.

“In formulating the civil registration scheme for same-sex partners the

Government was mindful of the implications for children. On the advice of

the Attorney General, it concluded that it was not appropriate that the Civil

Partnership and Certain Rights and Obligations of Cohabitants Bill should

develop principles on children that would have much wider implications than

those on same-sex partners. Apart from constitutional difficulties, issues

which arise with regard to children and their welfare are so significant that it

would not be appropriate to address them on a piecemeal basis without a

thorough review of all of the implications such changes might have for

children and also for those who might be affected by such changes.”70

Ultimately the fact and needs of children being raised in cohabiting and same-sex

relationships was addressed by the Children and Family Relationships Act 2015. The right of

a spouse, civil partner or cohabitant to secure guardianship status in respect of the

biological child of his/her partner is provided for under the Act. Whilst the right is not

automatic, Part 7 of the proposed laws permits the court to grant an application for

guardianship to a person who is not a parent of the child where the applicant is married to

or is in a civil partnership with, or is cohabiting for over 3 years in an intimate and

committed relationship with the parent of the child and has shared with that parent,

responsibility for the child’s day-to-day care for a period of more than 12 months.

Additionally the court can grant an order for guardianship where the applicant is an adult

who has provided day-to-day care for the child for a continuous period of more than 12

months and the child has no parent or guardian willing or able to exercise guardianship

70 Dermot Ahern Dáil debates 1 July 2010 Fifth stage Vol 714 No 2 at 140. In defence of this position, Ahern

also stated “Given the complexity of legal relationships between children and their parents, a comprehensive review of the law in this area is under way by the Law Reform Commission. It will in due course help to inform policy decisions on rights in general with regard to children of non-married parents and others. The commission published a consultation paper on the legal aspects of family relationships in September 2009 and has invited submissions from interested parties on its provisional recommendations which were published some time back. Its final report and recommendations are expected later this year. However, the consultation paper did not make specific recommendations on the position of same-sex couples or civil partners. It is not intended that the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill should deal with what is obviously a very complex issue, one with which other jurisdictions have had difficulties, with or without the constitutional constraints that clearly apply in this respect in our jurisdiction.”

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powers, rights and responsibilities in respect of that child.71 This provision could cover, for

example, the not uncommon situation where grandparents are raising their grandchildren.

As regards adoption, where civil partners or a cohabiting couple have jointly adopted a child

under an adoption order the civil partners or cohabiting couple, as the case may be, shall be

guardians of the child jointly.

It is worth noting of course, that at that time it was no coincidence that the Irish

government addressed the contentious issue of the parental rights of non-marital families,

especially civil partners in advance of the referendum on Marriage Equality held in May

2015. Once enacted, the potential for socially divisive issues arising from the legal

recognition of marriage equality lessened significantly and allowed the debate to focus on

the right of two parties in a recognised committed relationship to the equal right to marry.

Arguably the success of the Marriage Equality referendum is evidence of the ultimate

evolution of Irish law and society. The successful passing of the referendum in May 2015 by

the vote of the people, resulted in the thirty-fourth amendment of the Constitution, adding

a new Article 41.4 providing that ‘Marriage may be contracted in accordance with law by

two persons without distinction as to their sex’ with no change to the existing constitutional

provisions on marriage. Giving effect to this dramatic shift in the Constitutional concept of

marriage, the Marriage Act 2015 was enacted to amend the Civil Registration Act 2004 to

remove the requirement that a valid marriage be of parties being of the opposite, as well as

amending as necessary, inter alia, the relevant provisions of the Succession Act 1965, the

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and the Gender

Recognition Act 2015. However what remains is the need to tackle the ongoing blind

deference to the marital family. It is evident that all developments over the last 20 years,

however welcome, have been stymied by the elevated and exclusive status of the married

family…not to mention the gender specific preferred roles of the man and woman within

that traditional family unit. So long as Article 41 is retained in its current form, protection

for non-marred families will remain at a statutory level only and ultimately Constitutional

status and protection will be the exclusive right of those within marriage.

71 Section 49 of the 2015 Act inserted a new s.6C in the Guardianship of Infants Act 1964 which provides that:

A person is eligible to apply to be appointed a guardian where he or she—

(i) is married to or is in a civil partnership with, or has been for over 3 years a cohabitant of, a parent of the

child, and

(ii) has shared with that parent responsibility for the child’s day-today care for a period of more than 2 years,

or

(i) he or she has provided for the child’s day-to-day care for a continuous period of more than 12 months, and

(ii) the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of

guardianship in respect of the child.