Staff Writer Ava Sommers uses contextual analysis to explore the misalignment existing between the constitution of Ireland and modern Ireland and how the narrow definition of ‘family’ under Irish law affects people in Ireland.
What does the modern family look like in Ireland, and who is denied their rights by our outdated laws? This is more of a complex question than one might imagine at first thought and the reality of what defines the ‘family unit’ under Irish law has been criticised for being exclusionary. Did you know that there are almost equal amounts of children born to unmarried parents as there are to married parents? Did you know that unmarried fathers have no Constitutional Rights to their children? Did you know that some children may have as many as eight legal parents? Did you know that “The Family” under Irish law only exists where the parents are married to each other?
Bearing these different facts in mind, we can first off cite a number of important statistics to understand how they fit within modern Irish society: One in two marriages end in divorce; between 2015 and 2021 there was a thirty-five per cent increase in divorces in Ireland; the waiting time between the filing for divorce and the actual decree is between two and four years on average (and prior to this the couple must be separated for two out of the past three years – although, before 2019, they had to be separated for three out of the past five years). Furthermore, one in four children are born into single-parent families; one in five of all people in Ireland live in a family headed by a single parent; and these families run the highest risk of falling below the poverty line. Unmarried parents who choose to have a child via surrogate also have no Constitutional Rights.
What is most fascinating about this is the fact that our laws’ foundations are rooted in the Irish Constitution, and from that the legislation grows. But the Constitution was written for the people and society of 1937 Ireland, not a modern Ireland. Even at that, it was what one man, Éamon de Valera, wanted society of 1937 to look like. This Ireland put men as the eternal breadwinner, confining women to childbearing, child rearing and home care duties. It is even written into our Constitution that a woman in the home should be supported by the State, as this is highly important for the full functioning of society. While at first glimpse, Article 41.2 would seem offensive to the modern woman – but upon investigation, it is actually more discriminatory than one would think. There is no such law there to protect homemakers that are men, so they are discriminated against based on their gender, and this section cannot be relied upon by women as it has been tried and tested in cases and found to be of very little help.
State support for single parents is positively shocking, and while one in five of all people and one in four new-born babies in Ireland belong to a family headed by a single parent. 86.4% of single parent families are headed by single mothers. Seeing as women are, on average, paid 9% less than men per hour, this puts these families at huge risk of falling below the poverty line. This average does not take into consideration the perhaps even more pressing issue of the promotion gap. Why are these people being discriminated against like this? Somewhere between one-fifth and one-quarter of all people living in Ireland are struggling financially because the Courts and the government refuse to grant homemakers the rights guaranteed by them under the Constitution. Homemakers should be allowed to do their part at home, regardless of their gender, professional training, or sexual orientation.
Unmarried fathers were given no rights to their children in the Constitution, as it was the societal norm that any man who would have a child outside of wedlock is no good, and therefore he should not have any rights to the child, but women who gave birth to such children were also shunned. The legislation surrounding this in modern Ireland gives the father the right to apply to be a guardian, but he can only become an automatic guardian of his child through certain legal measures.
My main point, however, is that there are whole families out there that the law does not even recognise to be a family – indeed, you read that correctly. And your family may even be one of them.
If your parents are not married to each other, under Irish law, you do not have a family. If either of your parents were previously married, even where they remarried following a divorce, you do not have a family. How crazy is that? In a world where one in five of us live in a “family” headed by a single parent, according to Irish law, we do not have a family. Why are we, as citizens of Ireland, still being tied to the laws set out by the Catholic Church’s influence? When the Constitution was originally written in 1922, there was no such provision. However, it was rewritten in 1937 in order to include some extra necessities, such as this one, as requested by the Catholic Church. So after 15 years of the 1922 Constitution, it could just be redacted and rewritten because the church would like to add some extra points. These extra points now leave many people without a constitutional familial status, yet we are so hesitant to redo what had been done earlier in the State’s history and simply rewrite the parts of the Constitution which do not fit into our society.
This is not even touching on the issues surrounding families which turn to surrogacy as a method of having children. The surrogate mother technically has the rights of a Constitutional mother, as she was the woman who gave birth to the child, regardless of whose embryo is used in the fertility process. Due to this, there was one case where a child had eight potential parents – the couple who wished the child to be conceived, the donor of the ovum and her husband, the donor of the sperm and his wife, and the surrogate and her husband. The case here arose when the couple who wished to conceive the child separated, as it was then uncertain who in fact did have rights to be the parents of the child. Due to these fossilised laws within the Constitution, as Donor Assisted Reproduction was not possible at this time, there are no Constitutional laws surrounding these family types.
At least legislation now accepts the idea of same-sex marriage leading to families, and gives cohabitants similar rights to those afforded to married spouses (although not as extensive).
And the the question remains: Why are we being constrained by ideas which were commonplace over a hundred years ago, when it was the norm to systematically beat children into subordination, to not recognise marital rape, to discriminate against people due to their race, religion, ethnicity, sexual orientation, preferred gender presentation, or nationality? We are forcing ourselves to play by the rules which we have fought to unbind ourselves from. The legislation we create is now far removed from the Constitution; these Sections of the Constitution no longer hold much weight. Yet we still hold onto these old ideals.
It is arguable that the definition of a family should be reframed. For example, the definition of a family under the census is “a couple with or without children, or a one-parent family with one or more children.” This far more accurately depicts what a family is in Ireland –there is no mention of marriage, but a child-free couple may still be accounted for as a family, without the exclusion of single-parent families. Another possible solution to this outdated model is that of a De Facto Family, which means that if the “family” looks and functions like a family, then it shall be granted rights as a Family Unit. There is growing consensus within this generation that all families should be afforded equal rights, and laws which stand in the way of this should be at least amended, or removed entirely.