Original wording of article 41.2 might look good for women, but the courts never saw it like that

There is a hierarchy of legal protection with marriage at the top

On International Women’s Day, March 8th, we will vote to enshrine modern inclusive values about families and care into Bunreacht na hÉireann in two referendums.

The proposed changes to article 41.1 will finally recognise that Irish families come in many different shapes and sizes. Article 41 in its original form recognised one type of family, that based on heterosexual marriage. Divorce was also prohibited. This reflected contemporary Catholic teachings that the respectable way to have children was within marriage, a bond that existed for life, even if the reality of the marriage was not loving or caring.

In 2024 it is beyond time to recognise that caring and loving families are formed in different ways, not only by marriage. It is also time to constitutionally acknowledge that the caring relationship between parents and their children is of equal, if not greater, importance than the formal status of a child’s parents’ relationship.

Recognition, even at constitutional level, does not mean that all the different types of families will be treated by law in the same way. Irish family law already recognises that families come in different formats but there is a hierarchy of legal protection with marriage at the top. Existing legislation is complex, emphasising that marital families are special and take priority over other types of family relationships. The proposed changes to article 41.1 will not change this. The benefits that attach to marriage will be preserved. Nor will the definition of marriage change as this is written into the text of article 41.4 itself: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

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The new wording allows us to recognise as constitutional the different types of family that already exist in Ireland, giving them a place within the core values of our nation. But marriage is still special, expressly protected from attack by the new wording. And marriage is thriving. Census 2022 revealed that 69 per cent of family units are based on marriage. While it is true that marriage rates took a dip during Covid-19, when weddings were prohibited, they have recovered. Ask any florist or wedding cake maker – business is booming.

A recent Supreme Court decision in the John O’Meara case confirmed that prioritising marriage is still a valid and important State goal. However, any arbitrary discrimination towards other types of families cannot be justified under the current wording of article 41.1. The court ruled that O’Meara, who lived in a stable relationship with his late partner Michelle Batey for 20 years with whom he had three children, and had paid all PRSI contributions, was entitled to the widower’s contributory pension.

The equality guarantee in article 40.1 of our Constitution requires us to treat family set-ups that are barely distinguishable from marriage in the same way. But a different family set-up would require different legal treatment. In the 1990s, in the Supreme Court decision on MhicMathúna, the court confirmed it was permissible to have different social welfare payments for single parents because the needs and requirements of such family set-ups were different.

The proposed changes to article 41.2 will remove dated and sexist language from the Constitution and replace it with a statement that the care that happens in families is valued. The gender neutrality of the new wording emphasises that care in families can, is and should be done by men and women.

Article 41.2 in its original form reflects another Ireland where married women were required by marriage bars to leave many sectors of the workforce and work in the home. Entry into the EU in 1973 required us to change our ways and bring in equal employment rights for women. But the legacy of the marriage bars is still with us. Many older women have no pension, even though they have put in decades of caring work with their children and often their grandchildren. This is not equality.

If you look at the original wording of article 41.2 without any understanding of history or context, it looks promising for women: an acknowledgment of the work that many women do within the home and a pledge to provide some kind of economic support for caring work in the home. But article 41.2 has not been interpreted by Irish courts in this way. The courts “shoulda, woulda, coulda” used article 41.2 to oblige the State to provide financial recognition and assistance for women’s care work in the home, but they chose not to.

The State’s duty under article 41.2 is a weak one. Two Supreme Court decisions in the early 1990s (L v L and Re Article 26 and the Matrimonial Home Bill 1993), approved in subsequent judgments, repeatedly rejected the notion that article 41.2 could entitle women to a share in the ownership of their family home by virtue of the value of their domestic labour. This is even where exclusion from the workforce and engaging in this home labour meant that such women could not have purchased such a share. Within court decisions on divorce, women’s work within the home does not mean she is compensated by an equal share of marital assets The courts accept such work as being of equal moral value to breadwinning, but not equal financial value. The false promises of article 41.2 are an insult to the caring work that Irish women do in the domestic sphere and to our grandmothers, who campaigned against the article in 1937.

The new wording steers away from such false promises. It asks us to value care within families that is done by all family members.

On March 8th, on International Women’s Day, I and many other mothers will juggle work with the emergency child care situation caused by primary school closures required to use the buildings as polling stations. But I will be voting Yes and Yes for a symbolic step forward toward a more equal Ireland, with lots of work left to do to give meaningful legal protection and economic support to carers working within the family and in wider society.

Dr Maebh Harding, assistant professor in Family and Child Law at UCD Sutherland School of Law. Along with Deirdre McGowan (TU Dublin) is editor of a new book, Family Law in Context (Clarus 2023), €59 available at claruspress.ie