Constitutional Protection of Family
Under the Constitution, the family as a moral institution enjoys certain liberties and is in particular, protected from undue interference with the State. The State may intervene in exceptional circumstances in the interests of the common good or where parents have failed for physical or moral reasons in their duty to their children.
It has been held that Articles on the family do not create any particular rights within the family or grant any individual member of the family rights, whether property or otherwise against other members of the family. It deals with the family as a unit in the context of external forces.
The Supreme Court has held that the family under Article 41 is the family based on marriage. Since the 2015 Referendum and subsequent legislation, same-sex marriage is now permissible.
Personal Rights Under Article 40.3
The Supreme Court held in the 1990s that rights between an unmarried mother and her child are governed by Article 40.3 conferred personal rights. Several cases have held that the father of non-marital children does not have a constitutionally protected relationship and that his rights are based on common law and statute only.
The European Convention on Human Rights gives some non-marital relationships the same status as families under Article 8. Statute law has gradually improved the position of the non-married father relative to his children.
The right to marry is recognised in international human rights documents. The European Convention on Human Rights requires that the States respect a person’s private family rights.
In O’Shea v. Ireland, the former Deceased Wife’s Sister Marriage Act was (and Deceased Brother’s Widow’s Marriage Act) was found unconstitutional as being in breach of the right to marry. The State failed to demonstrate that the family, the institution of marriage or the common good would be endangered if it did not exist.
The McGee case recognised a personal right of privacy and the right to procreate. In Murray v. Ireland a case was taken by a married couple who had been both sentenced to 40 years for the capital murder of a member of An Garda Síochána. They sought to require the prison authorities to facilitate their having children. The Supreme Court rejected the challenge on the basis of administrative requirements of prisons.
In the McGee case, Walsh J and the Supreme Court justified the personal right to marital privacy by reference to Article 41. It was a matter for the couple to decide on having children and the State could not dictate conditions. There was no good public interest to the contrary.
Marriage and Discrimination
In Zappone v. Revenue Commissioners, the Supreme Court refused to recognise same-sex marriage contracted under Canadian law. The decision was effectively reversed by the 2015 referendum on same-sex marriage.
The Supreme Court has found on several occasions that the Article mandates and justifies positive discrimination in favour of marriage. Many such provisions are found in the social welfare and tax code.
In Murphy v. Attorney General, married couples were treated less favourably in terms of tax allowances than non-married couples. The Supreme Court found that the legislation concerned breached the guarantees in favour of the family in the Constitution. It put a non-married couple in a better financial position relative to a married couple and it discriminated invidiously against married persons. Further, legislation, which sought to remedy the position, was again found unconstitutional by the Supreme Court in Merkley v. Ireland.
In Madigan v. Attorney General, the residential property tax legislation was challenged on the basis that it placed a greater burden on families in that it aggregated the income of all members of the family living in houses over a certain value for the purpose of the exemption from the tax. The Supreme Court rejected the challenge.
In Hyland v. Minister for Social Welfare, Supreme Court held that social welfare provisions that treated unmarried couples more favourably than married couples in a comparable situation was found unconstitutional.
In Greene v. Minister for Agriculture, EU Regulations in relation to disadvantaged area farming penalised persons who are married relative to persons who are not married was similarly held to be unconstitutional.
Supreme Court in NicLaughna v. Attorney General (McMahon Irish) held that legislation that treated, a separated person with a child more favourably than a married couple did not amount to invidious discrimination contrary to the equality guarantee.
McKinley v. Minister for Defence, the common law right of action for loss of consortium by a husband was held to extend to wives.
The common law principle of dependent domicile was found unconstitutional in W v. W. By this principle, a wife had been deemed to acquire the domicile of her husband on marriage.
A challenge to the judicial separation legislation in T.F. v. Ireland taken prior to the amendment of the Constitution to allow divorce was rejected. It was accepted that it was in the interest of the common good to permit orderly a separation where a marriage had broken down.
The Constitution as originally adopted and until 1995 provided that no law shall be enacted providing for the grant of dissolution of marriage. In 1986 a referendum to remove the prohibition on divorce was rejected. In 1995, a referendum to remove the ban was carried by a narrow majority.
The Supreme Court later held that the government had acted unconstitutionally in spending public money in advocating a “yes vote”. (McKenna v. An Taoiseach). A subsequent attempt in Hanafin v. Minister for the Environment to set aside the referendum was rejected.
The permissible grounds of divorce were written into the Constitution. Laws may be enacted allowing for divorce provided that
- from the date of institution of divorce proceedings, the spouses have lived apart from one another for period or periods of at least four years during the previous five;
- there was no reasonable prospect of reconciliation between the spouses;
- such provision as the courts consider proper, having regard to the circumstances exist or will be made for the spouses, any children of either or both of them and any other prescribed by law and any further conditions prescribed by law are complied with.
No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.
On 24h May 2019, an amendment to the Constitution was adopted by 82% of the voters to delete the requirement that the spouses must have lived apart from one another for period or periods of at least four years during the previous five. The provision on recognition of foreign divorces was amended to provide that provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.”;
The Family Law Divorce Act was enacted to provide a regime for divorce. In R.C. v. C.C. which High Court held that prior to the commencement of the Divorce Act, it had inherent jurisdiction to grant divorce subject only to limitations provided for by legislation.
Prior to the provision for divorce, the former prohibition in the Constitution had been used to justify a relatively narrow basis for the recognition of foreign divorces. It required that one party be domiciled in the jurisdiction where the divorce was granted. At that time a wife was deemed to have the domicile of her husband, under the principle of domicile of dependency at common law.