Opinion: it's time for the government to respond to the people's renewed call to recognise the non-marital family in the Constitution
In November of this year, the people will have the opportunity 'to enshrine gender equality and remove the outmoded reference to "women in the home"’ in the Constitution. This was recently announced by the government in response to the Citizens' Assembly on Gender Equality 2021 and the Joint Oireachtas Committee on Gender Equality 2022. However, unlike the Citizen’s Assembly and the Joint Oireachtas Committee, the government did not mention proposing an amendment to Article 41.3.1 ‘so that it would protect private and family life, with the protection afforded to the family not limited to the marital family’.
In 1996, the Constitution Review Group recommended that Article 41 be amended to protect family life ‘whether based on marriage or not’. An impasse was reached following governmental inertia and the Tenth Progress Report of the All-Party Oireachtas Committee on the Constitution in 2006 suggested ‘that an amendment to extend the definition of the family would cause deep and long-lasting division in our society and would not necessarily be passed by a majority.’
However, seventeen years on, Church-State relations have continued to dwindle, and non-marital families have become commonplace. Yet the discrimination they endure at the hands of the Irish legal system persists.
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From RTÉ News, government announces referendum on gender equality for November
The drafters of the Constitution wanted to distance the Irish legal system from British influence. De Valera, having recognised the powerful influence of the Catholic Church, believed that the people might not vote in favour of the Constitution in 1937 if it did not acquire the support of the Church. The Church consequently replaced the British government in drafting the Constitution and left an enduring mark on Article 41.
In 1930, Pope Pius XI issued Casti Connubii, a Papal Encyclical that affirmed the Church’s position on marriage. The document endorsed the ecclesiastical law enshrined in the Code of Canon Law that ‘the primary end of marriage is the procreation and the education of children’. In doing so, it noted the following words of St. Augustine: ‘"The Apostle himself is therefore a witness that marriage is for the sake of generation: 'I wish,' he says, 'young girls to marry.' And, as if someone said to him, 'Why?,' he immediately adds: 'To bear children, to be mothers of families".’
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From RTÉ Radio 1's News At One, call for constitutional referendum on status of unmarried families
Like Casti Connubii the provision on the family - Article 41 - also views marriage as an important social institution. The purpose of the provision is to enshrine the supremacy of the marital family in the Constitution. The provision itself ‘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.’ It continues by stating that the family structure protected by the Constitution is the marital family.
This implies that non-marital families are not afforded any constitutional protection. The judiciary has interpreted Article 41 in this manner and, consequently, the courts have held that the State is allowed to treat marital families more favourably than non-marital families. Over the years this interpretation of Article 41 has led to devastating and disappointing outcomes for members of non-marital families.
In the late 1950s Kathleen Donnelly, a Catholic Irishwoman and Leon Nicolaou, a Greek Cypriot, became pregnant with a girl, later named Mary Carmel. Due to religious and mental health difficulties, the couple never married. Kathleen was worried about their child growing up with the stigma of being ‘illegitimate’ and non-Catholic, so she decided to put Mary Carmel up for adoption. Nicolaou opposed adoption. It was also made clear to the court on his behalf that he had maintained a close relationship with Kathleen, and he wanted to bring up Mary Carmel.
Read more: The issues with Ireland's 'women in the home' constitution clause
Nonetheless, the court likened the conception of Mary Carmel to ‘an act of rape, by a callous seduction or by an act of casual commerce by a man with a woman’ and stated that ‘it is rare’ for a non-marital ‘natural father to take any interest in his offspring’. The Supreme Court accordingly permitted the adoption of Mary Carmel without Nicolaou’s consent because he was a non-marital father precluded from availing of Article 41 protections. The sad reality of this case is heightened by the fact that although Mary Carmel had a good childhood with her adoptive parents and got to know Kathleen later in life, she never got to meet her natural father, Nicolaou.
In 1984, the Supreme Court also held that it was constitutional for the legislature to preclude non-marital children from succeeding on intestacy to their parent’s estate because the constitutional rights of the marital family are superior to the non-marital child’s right to equality. Therefore, the Court permitted the legislature to discriminate against non-marital families.
The court’s Article 41.3.1 decisions are ‘largely creatures of their time’. However, the courts have continued to show a marked reluctance to expand the definition of the family beyond the marital family. Therefore, it is time for the government to respond to the people’s renewed call that was voiced by the Citizens Assembly to recognise the non-marital family in the Constitution and align Irish law with Article 8 of the European Convention on Human Rights, which does not confine family life to marriage.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
