Original Family Provisions

Article 41 of the Constitution recognises the family as the natural and primary unit/group of society.  It guarantees to protect the family in its Constitution and authority.  The protection is limited to the family based on marriage.  The Article further provides that the State pledges to guard with special care the institution of marriage on which the family is founded and to protect it against attack.

The courts have held that an unmarried father has no Constitutional rights in respect of his child.  Widowed persons and families without children enjoy the Constitutional protection.  Similarly, separated persons are covered by the guarantee. The Constitution was amended in 2015 to allow for same-sex marriage. The guarantee refers to the family as an institution rather than individual members.

Article 42 provides that the State acknowledges that the primary and natural educator of the child is the family, and guarantees to respect the inalienable rights and duties of parents to provide, in accordance with their means for their religious, moral, intellectual, physical and social education of their children.

In exceptional cases, where the parents for physical and moral reasons, have failed in their duty towards their children, the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents, but always with due regard to the natural and imprescriptible rights of the child.

Family Rights

The protection of family rights under the Irish Constitution is unusual and is not widely paralleled in international human rights law.  The Articles protect the institution of the family. The rights and duties of married parents in relation to children are inalienable.   This means that they cannot be disposed of or surrendered.

The Guardianship of Infants Act provides that in child care applications affecting guardianship custody, the courts must have regard to the welfare of the child as the first and paramount consideration.  The courts however had interpreted the Constitution to imply there is a strong presumption that the interests of the child are best served by remaining part of a marital family.  The wording of the Constitution has been criticised as leaning against the welfare of the child, as the primary consideration.

The pre-eminent role given to the family reflects a natural law theory that was current at the time the Constitution was adopted.  Under this philosophy, the family pre-exists the State and accordingly, enjoys rights superior to those under the notional social contract, on which State laws are founded. Catholic social teaching of the 1920s and ’30s emphasised the role of the State in educating the family and viewed the State’s role as limited.  The State might only interfere in the event of serious default or incapacity on the part of the parent.

Children Rights Amendments

The original provision has been criticised for failing to recognise the rights of children sufficiently.  A referendum was passed in 2014 in order to amend the article to focus more on the rights of the child.    The amended wording provides that the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.  Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

Provision shall be made by law that in the resolution of all proceedings –
brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
concerning the adoption, guardianship or custody of, or access to, any child,
the best interests of the child shall be the paramount consideration.

Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to above in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

Family based on Marriage

The Constitution mandates a preference for a family based on marriage over other family or societal units.  Questions have been raised in the past about whether the State might recognise unions of non-marital families, other than those based on traditional marriage of a man and woman.

The courts have held laws, which treated married persons in a less favourable manner than equivalent non-married couples, to be inconsistent with the Constitution.

The famous Murphy case in 1980 found certain parts of the income tax act to be invalid, which gave more favourable tax allowance and bands to two single persons than to a married couple.  The State was obliged to legislate for full equivalence by granting double tax allowances and double tax bands.  The court had found that the previous provisions reached the State’s pledge to guard which special care the institution of marriage and protected against unjust tax. The principle of individualisation of the tax bands, enacted at the start of the century, has made inroads on this principle.

The principle has been applied in the social welfare context in relation to unemployment benefit, disability benefit and in relation to agricultural subsidies. The approach of earlier cases has been modified in more recent times.  The tax code allows each of two separated parents with whom the child lives for part of the year, an additional tax allowance. On the face of it, comparable persons were treated less favourably.

A rational basis for the distinction could be found as the burden on separated parents was higher.  The High Court found that this did not constitute a sufficiently clear breach by the State of its pledge to guarantee the institution of marriage.  The appropriate comparison was not between married and unmarried couples living together, but between persons living together and living apart.  The Supreme Court accepted this reasoning.

Same-Sex Partners

Legislation was introduced in 2010 allowing for civil partnership. See the sections on Civil Partnership, The legislation recognised and allows the formal contracting of civil partnerships. It conferred most of the tax, social welfare, succession and other benefits of married persons on same-sex civil partners.

The argument had been made that if civil partnership acted as a substitute for marriage,  that it might constitute an attack on the institution of marriage.  The legislation stopped short of formally equating civil partnership to marriage. A 2015 Amendment to Constitution provided that  “marriage may be contracted in accordance with law by two persons without distinction as to their sex.

Two people of the opposite sex or of the same sex may marry each other. The detailed rules about who may marry are set out in legislation. The Constitutional status of marriage remained unchanged. A marriage between two people of the same sex has the same status under the Constitution as a marriage between a man and a woman. Married couples of the opposite sex or of the same sex are recognised as a family and are entitled to the Constitutional protection for families.

Marriage Rights

The unremunerated personal rights in the Constitution (implicit in Article 40.3) include the right to marry.  The Deceased Wife’s Sister’s Marriage Act 1907 and the Deceased Brother’s Widow Marriage Act 1907 prohibited a person from marrying a sibling of their deceased spouse.  This was found to be unconstitutional, as it has impaired the right to remarry without any sufficiently rational justification.

Prior to the Civil Partnership Act and the same-sex marriage referendum, it had been held in a challenge by same-sex couples who had married outside of Ireland, that the non-recognition of their status was justified by reference to the then Constitutional pledging to protect the institution of marriage.

The courts have recognised the Constitutional rights of non-marital parents to a certain extent.  The right of an unmarried mother to the custody and care of her child, has been recognised as a natural personal right under Article 40.3 (unremunerated rights).  The non-marital father has a right to apply under the Guardianship of Infants Act to be appointed as guardian to his child. However, he does not appear to have a Constitutional right.

In contrast to  Article 41 rights, the rights of unmarried mothers are (in principle) alienable or transferrable.  This is the basis upon which the adoption of non-marital children has been significantly easier, than in the case of marital children. In the cases of children of married persons, adoption was only allowed in highly exceptional circumstances. The position has been modified to some extent, by the so-called Children’s Rights Amendment, details of which are set out above.

Non-National Parents

Generally, Constitutional rights are available only to citizens.  However, because Articles 41 and 42 appear to invoke the notion that family rights are superior to all law, the courts have allowed non-nationals the benefit of the right.

The courts recognised in the 1990s, the right of children who are citizens to the care and parentage of their parents within a family unit.   It followed that that parents of children who were non-nationals, who might otherwise be deported, might in some circumstances, be able to assert a right of residence on behalf of their children, who has citizens may not be deported.

It did not follow that the State must permit the parents to remain.  If for good and sufficient reasons, the common good required that their residence be terminated, this was permissible even though the effect is that the citizen child must also leave the State.  In determining such matters, the child was entitled to procedural fairness.

The Minister is obliged to consider the facts of each case, in a fair and proper enquiry into the facts and factors affecting the family.  The facts should be specific to the individual child, his age, educational progress and developmental opportunities.  Regard is to be had to the facts and circumstances, including the age of the child, the length of time he has been in the State and the extent to which he has integrated into the community.

The courts have taken different views as to the extent to which a generalised consideration affecting the common good, as opposed to more particular factors pertaining to the case may justify deportation.  The former approach has been favoured by the majority of the Supreme Court

A 2004 constitutional amendment provided that a child born in the island of Ireland to non-national parents is not entitled to Irish citizenship unless, at the time of his or her birth, he had, at least one parent who was an Irish citizen or entitled to be an Irish citizen. The amendment applied to persons born after it took effect. The 2004 legislation which followed conferred citizenship where the child’s parents had resided in the island of Ireland for at least three of the previous four years.

“Women in the Home”

Article 41.2 recognises “the special role of women within the home” and provides that the State will endeavor 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 provision very much reflects its origins in the 1930s.

The courts have justified certain instances of discrimination in favour of women, on the basis of this Article.  A Constitutional challenge, on the basis of equality, to the social welfare codes, discriminating between men and women in relation to disserted wife’s benefits and widows benefit (which had no corresponding male equivalent) was rejected on the basis of Article 41.2.  The Constitution recognised a social and domestic order, in which married women were unlikely to work outside the home and this justified the discrimination.  This discrimination was later ended on the basis of European Union law requirements.

Arguments on the basis of Article 41.2 have been rejected in other cases. The prohibition on adoption by childless widowers (but not widows) was found unconstitutional, notwithstanding justification on the basis of Article 41.2.

Article 41.2  was not found sufficient to justify the automatic statutory acquisition of a beneficial interest in the family home in the Presidential reference of the Matrimonial Homes Bill 1993. The courts held that only a monetary contribution would suffice to establish a beneficial interest in the home.  Article 41.2 did not justify legislation automatically adjusting property rights.

The Supreme Court found that the right of a married couple to make a joint decision of the ownership of the family home is a right possessed by the family and recognised by the Constitution.  Because the Bill proposed to grant automatic ownership rights in every existing dwelling occupied by a family home, the was an interference with a decision that may have been made jointly.  The original decision may have been built on and assumed in later arrangements in family assets.

Because the Bill forced couples who may have been content with the original arrangements to take steps on undo this position,  the authority of the family acknowledged by Article 41 of the Constitution, was infringed.  The interference by the State was not reasonably proportionate in relation to the rights of the family and failed to protect the authority of the family by the indiscriminate alteration of  what might have been be a joint decision.

In the famous de Burca challenge to the Juries legislation, which had the effect of severely limiting the number of women available for jury service, the Chief Justice relied on Article 41.2 as justifying allegedly positive discrimination, in relief from the burden of jury service.  However, the majority of the court rejected this argument and emphasised the rights of the accused to a jury made up of all members of the society.

Family & Education

In the Sinnott case, an autistic man claimed successfully that Stated had failed to provide free primary education for him up to the age of 18 years.  His mother Cathy Sinnott independently claimed that her Constitutional rights, as part of the unit of the family, had been infringed.  A majority of the Supreme Court recognised that she had rights as part of a family unit and duties as a parent within that unit.

A breach by the State of the rights of one member of the family unit, here the child, ay impact on the family as a unit and on the parents.  Reference was made to the special position of women “in the home”, which is recognised by the Constitution. The special recognition is not to be construed as representing a normal society, but as belonging to the whole of society.  The recognition did not exclude women and mothers from other roles and activities.

In the 21st century, the Constitution should be interpreted as recognising the work performed by women in the home, because of its benefit to society.  Because the Constitutional links educational and family rights in the same Article, breach of the son’s rights breached the mother’s right.  Reference was also made to the unenumerated right of the father in the family which was assumed, but not expressively stated in the  Constitution.  The Constitution should be interpreted as a contemporary document so that the dated reference should itself be construed in a positive way, in the context of family rights.


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