Positions of marital and non-marital families within Irish law

Positions of marital and non-marital families within Irish law



Positions of marital and non-marital families within Irish law

The dynamic sociological changes in Irish life in relation to the family and family life are well documented.1 Change in this area has been characterised by a decline in fertility and family size, an increase in extra-marital births and cohabitation, and marital breakdown, given formal legal expression through the introduction of divorce. Marriage is no longer the primary or dominant gateway to family formation but there is evidence that extra-marital births are taking place in quasi-marital unions and that many enter into marriage subsequently, pointing to a change in the sequencing of marriage.

Figures from the most recent census reveal that there were some 153,863 lone-parent families in 2002. There has been a significant increase in the number of cohabiting couples who now comprise one in twelve family units. Some 52,000 children now live with cohabiting couples and currently one third of births are outside marriage. The family can take a variety of forms and these depend on a complex blend of economic and social factors. It is no longer the case that marriage forms the basis of family formation or reformation in Ireland.

The Constitution is a dynamic document based on broad principles. From Treoir's perspective, the discussion of constitutional reform should take place in the context of the removal of barriers to protection for unmarried families and children generally. The 1937 Constitution was drafted with the family based on marriage in mind and Article 41 explicitly states that the family to which the special protection applies is the marital family. Article 41.3.1 states that: 'The state pledges itself to guard with special care the institution of marriage, on which the family is founded and to protect it against attack'. The family has thus been interpreted by the Irish courts to be confined to families based on marriage.

Although parents who are not married do not benefit from the rights enunciated in articles 41 and 42 of the Constitution, it has been held that children born outside wedlock have the same 'natural and imprescriptible rights' as children born within marriage. However, the courts have held that in a number of instances it is permissible to treat children born outside of marriage differently to those born to a married couple. The non-marital family is effectively outside of constitutional protection and an unmarried cohabiting couple cannot, no matter how stable or continuous their relationship bring themselves within the ambit of Article 41.3.1. The report of the Constitution Review Group in 1996 proposed amending Article 41. 3.1 to read as follows: 'The State pledges itself to guard with special care the institution of marriage and to protect it against attack'. The result of the deletion from Article 41.3.1 of the words 'on which the family is founded' would be the removal of the definition of the family based on marriage. The protection for families based on marriage is ...