Analysis: the ongoing delay in announcing a referendum on the definition of family reflects the complexity of the issue
Article 41 of the Constitution refers to the family as the fundamental unit group of society. Although the family is not defined in the text, it does point to the family for constitutional purposes being based on marriage. Article 41.3.1 says that the State will 'guard with special care the institution of Marriage, on which the Family is founded'. The Supreme Court has confirmed that the family in Article 41 means only the family based on marriage.
The Government intends to hold a referendum to amend the Constitution to better reflect the diversity of Irish family life. At first glance this seems relatively straightforward but the ongoing delay in announcing the referendum reflects the complexity of the issue.
Changing the definition of family to remove the privilege afforded to marriage in the Constitution could have significant implications across the legal system. This is because the marriage-based family has enjoyed preferential treatment in law and social policy since the foundation of the State. Although the State does recognise other types of family life, it does not offer them the same levels of protections as the marriage-based family. Many of these protections are justified by the constitutional position of marriage. Changing the definition of family to remove the special position of marriage could require a substantial rethink of how we regulate family life.
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From RTÉ Radio 1's Morning Ireland, referendum on 'women's duties in the home' postponed
Here are five reasons why it is difficult to redefine the constitutional family
- Other parts of the Constitution refer to marriage
Article 41.3.2 sets out the conditions for divorce and Article 41.4 states that marriage can be entered into ‘by two persons without distinction as to their sex.’ Marriage is also referred to in Article 42A, the children’s rights amendment.
- Children
Different rules determine the relationship between parents and children depending on whether their parents are married to each other or not. The father of a child married to the mother of the child is automatically recognised as a parent and guardian of the child. Where the father of a child is not married to the mother of a child, he does not have automatic rights in relation to the child and his rights will depend upon his relationship to the child’s mother. Different rules also apply to married and unmarried people adopting a child or using Donor Assisted Human Reproduction.
- Other family law
Married couples have access to a comprehensive system of laws governing the breakdown of their relationship. Protections for unmarried couples are significantly more limited.
Read more: The issues with Ireland's 'women in the home' constitution clause
- Pensions, tax and social welfare
Married couples enjoy beneficial tax treatment. For example, they can gift an unlimited amount of money to each other with out any tax implications. Unmarried couples, siblings and friends are limited in the amount of money they can share during their lives or on death without incurring a tax liability. Spouses can also benefit from some social welfare payments based on each other’s contributions and most pension schemes provide benefits for surviving spouses and children but not for other relatives.
- ‘Attacks’ on marriage
The courts have decided that it is unconstitutional to ‘attack’ marriage by offering the same or better legal protections to unmarried people. These decisions justified the abolition of civil partnership when same-sex marriage was introduced because it was thought that having an alternative to marriage could dissuade couples from marrying. This would be an ‘attack’ on marriage.
Most legal systems offer additional protections to married couples and their children. This is because people who commit to marriage are easy for the State to identify as families who can be relied upon to support each other. In deciding upon new wording for the Constitution, the government needs to decide which types of families should have constitutional protection; but it also needs to decide whether the special place of marriage should be retained. Extending constitutional recognition to more family types will not remove the legal privileges given to married couples, but it may make it harder to justify them.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
