The Family and Care Amendments: Insight from Cormac Ó Dúlacháin SC

Cormac Ó Dúlacháin SC is one of the foremost legal minds in the country and one of the most senior lawyers practising in this jurisdiction. He “took Silk” or was made a senior counsel 23 years ago and was called to the Bar in 1986. He is a member of the Lawyers for No group and has a mixed practice, including Judicial review, which involves constitutional law.

THE FAMILY  AMENDMENT

Durable Relationships in Law

The law of personal legal status is based on the principal that a person has one legal status at one time.  In marriage this means  – one person – one marriage – at one time.

When the Constitution was ratified by people in 1937 the people knew with absolute certainty what marriage was – a relationship based on free choice, between two individuals over a certain age, made publicly in front of witnesses and registered in a public register and not one between persons closely related. Constitutional Referendums later made provision for divorce and marriage of same sex couples.

Marriage could not be imposed on you or attributed to you by the State. Your status was the result of your choice.

As a term it appears in one EU Directive dealing with free movement of EU Citizens and as an extension of the benefits of free movement to an extra class of persons.

The Constitutional amendment by adding “durable relationships” ends the constitutional primacy of one status over another. It places both forms of family relationship on equal footing without distinction. It allows for the existence of multiple competing family interests. The concept of “one person – one status – at one time” is gone.

The decision as to whether or not a relationship constitutes a durable relationship is not based on a public declaration and public registration by the parties. It is the state and not the parties that will determine if a relationship is deemed to be durable. It is a fundamental interference with the freedom to determine your own legal status in accordance with law.

Future Impact on Succession Law

Our succession law is based on providing significant rights to married persons on the premise that a person has one dominant legal family status.

These rights cannot hold if the State is to afford equal recognition to competing current family relationships and not make the legal recognition of durable relationships conditional on the legal dissolution by divorce of the existing marriage where succession rights are addressed or indeed ensure that marriage legally terminates all pre-existing durable relationships.

On a purely mathematical basis the minimum succession rights guaranteed to a spouse in one marriage cannot be guaranteed in equal measure across two or more family relationships.

Currently our Succession Law provides by way of example;

Marriage is a reset button – it invalidates all previous wills (save for prenups).

Married Partners enjoy defined entitlements which by way of example include –

Intestacy          Spouse / No Issue                 Spouse entitled to whole estate.

                 Spouse & Issue                      Spouse entitle to two-thirds.

Will                 Spouse / No Issue                 Spouse entitled to one-half

                        Spouse & Issue                       Spouse entitled to one-third

Spouses have a first call on the family home and contents to meet their entitlement.

Spouses have rights relating to property disposed of in three years before death, where done to disinherit the spouse.

There will be a fundamental inequality between marriage and durable relationships, marriage will be visible, open, public and registered where as durable relationships can be  non-transparent and concealed.

Single or Unmarried Parents

It should not be grouped as sub-class of “durable relationships”, a wording, which even in its limited use in EU law, refers to adult relationships. The recognition and rights of “parent/child unmarried families” calls for separate recognition.

Blind Reliance

A Constitution should not be amended on the basis of blind faith on what a fundamental term may subsequently be defined to mean.

THE CARE AMENDMENT

What is presented as progress and modernisation is in effect a retrograde proposal.

While Article 41.2.1 does refer to the woman, it refers to the benefit to the common good arising from the “life within the home”.  That wholesome concept that embraces all aspects of family life is to be deleted and replaced with a narrow limited concept which equates parenting to “the provision of care”.  

There were many ways of reframing Article 41.2.1 without deleting  the reference to “life within the home” and removing the one constitutional provision that referred to economic support for the stay at home parent.