Radical changes in Article 41 urged by ex-chief justice

Former chief justice Ronan Keane has called for major changes to the constitutional provisions on the family.

Mr Keane, an adjunct professor at Trinity College Dublin (TCD) law school, said the case for a "radical restructuring" of Article 41, which deals with the family, was very strong.

He said such an approach was preferable to any tinkering with the article, and suggested changes could also be made to Article 42, which deals with education.

Article 41 required a reassessment that was not unduly constrained by the form which it now took, he told a conference in TCD to mark the 70th anniversary of the Constitution.

"In other words, an attempt to deal with particular problems that are thought to have arisen by inserting more provisions without considering the architecture of the articles as a whole would be to adopt a procedure which has, in the case of ordinary legislation, frequently created even more problems and litigation."

He said any changes made to Article 41 should give the legislature and the courts flexibility in complex and sensitive areas of family rights. Piecemeal amendments drafted in reaction to "supposed" crises were not likely to produce this result.

Mr Keane said Article 41, which recognises the family as the "natural primary and fundamental group of society" with "inalienable and imprescriptable rights", had provoked the most discussion in recent years. Now was an appropriate time to reflect on an appropriate constitutional framework to take account of the many changes in society since the enactment of the Constitution in 1937.

He said the difficulties with the article were well-known. There had been immense changes in society, which was more urbanised and secular than in 1937. The rate of marital breakdown had been rising steadily and divorce had been introduced. Cohabitation was more common, and more people were having children without being married. Homosexuality was decriminalised in 1991.

The section of the article dealing with a woman's place in the home was seen, even at the time of its enactment, as patriarchal and sexist. "In an era when there are so many working wives and the cost of childcare and the extent of maternity and paternity leave and similar issues constantly arise, it has a singularly dated appearance."

While fears might be justified that a proposal to amend the definition of the family by referendum would be divisive, "that does not relieve the legislature of the obligation to give the people an opportunity of deciding for themselves whether they wish the fundamental law of the land to recognise changes which have occurred in our society".

Mr Keane expressed support for the Law Reform Commission's recommendation that unmarried couples and their children should enjoy the same protection as married couples and that this should extend to same-sex couples. However, it would be "a far more radical step" to amend the Constitution to give same sex partnerships the status of marriage.