The Constitution, family and carers

The forms of family that warrant constitutional recognition

Sir, – Much debate in the proposed family amendment has focused on the meaning of the phrase “other durable relationships”. It is easy to lose sight of the phrase’s limited impact.

The wilder speculation assumes the amendment grants durable relationships a status similar to marriage.This is not the case.

If the amendment passes, Article 41 will still oblige the State to “guard with special care the institution of marriage and protect it against attack”. “Other durable relationships” get no status or protection.

The amendment would not equate “durable relationships” with marriage, civil partnership, or qualified cohabitation. It would not be possible for an individual to claim tax, succession or social welfare entitlements simply on the basis that they are in a durable relationship. It is therefore not necessary to have detailed rules for when durable relationships end.


What the amendment would do is extend the definition of constitutionally protected families to include not only families founded on marriage, but also families founded on other durable relationships. This would be a statement, over which voters will legitimately disagree, about what families are valued in the basic law of the State.

But the extended definition would have few practical effects, because constitutionally protected families only have rights in limited situations.

The Supreme Court has held the State is obliged only to respect the Article 41 family in its “constitution and authority”. Families do not have broad rights against the State. Specifically, spouses have no right to cohabit in the State.

In making a deportation order, the Minister for Justice must consider its effect on an Article 41 family but, similar to the analysis already required under the European Court of Human Rights, there would be no presumption against deportation.

The Children’s Rights Amendment of 2012 already means that married and unmarried parents are treated the same way in respect of State intervention in family life, so the family amendment would not make much difference here either.

The remaining implication concerns the constitutionality of laws that treat non-marital families differently from marital families. In the recent O’Meara case, the Supreme Court held that such differentiation must have a rational basis. Excluding unmarried couples from the contributory widow’s and widower’s pension infringed the Constitution’s equality guarantee.

We think it likely that the amendment would make it somewhat more difficult for the State to justify discrimination against non-marital families (perhaps, for example, for non-biological, social parents of children, who currently do not enjoy constitutional rights). But the change would be a subtle and marginal one.

The principal relevance of the amendment is the statement it makes about the forms of family that warrant constitutional recognition.

Some are concerned that “families founded on other durable relationships” will have to be defined by the courts. However, the limited contexts in which the extended definition could make a difference should assuage this concern.

The Constitution is full of undefined terms. In O’Meara, the Supreme Court had to decide what the phrase “equality before the law” meant for social welfare provisions. The courts interpret constitutional phrases like this incrementally, building up precedents over time.

“Other durable relationships” would be a new addition, but the courts also have long experience dealing with the varied realities of family life. Moreover, the courts will pay significant deference to any decisions the Oireachtas makes in this regard.

It is for voters to decide whether extending the definition of the constitutional family is something they support. But the risks arising from the phrase “durable relationships” are far smaller than some commentary has claimed. – Yours, etc,






School of Law,

Trinity College Dublin;


School of Law,

University of Limerick;



School of Law

and Criminology,

Maynooth University;


School of Law,

University of Galway;


Sutherland School of Law,



School of Law and Government,

Dublin City University;


School of Social Sciences, Law, and Education,

Technological University




School of Law,

University College Cork.

Sir, – Expecting the electorate to vote on the concept of “durable relationships” prior to definition of that phrase by the courts is to put the cart before the horse and is therefore illogical. – Yours, etc,



Dublin 22.

Sir, – I’m surprised that Aoibhinn Ní Shúilleabháin brings the marriage bar into her discussion of the referendum on Article 41.2 (Opinion & Analysis, February 29th). The marriage bar preceded the 1937 Constitution and was in existence in several other countries. Article 41.2 has a very different meaning to that of suggesting that a woman’s place is in the home, as Ms Justice Marie Baker has made clear.

Why would we choose to remove a “direct obligation” on the State to endeavour to support mothers who want to care for their own children, especially when the Supreme Court is due to hear a case citing this provision in April?

If the Yes side is so lacking in cogent arguments to persuade us then clearly we had better vote No. – Yours, etc,



Co Wicklow.

Sir, – Conspicuous by their absence on the streets of Dalkey are referendum posters. There was a time when the poles and posts in the town would be festooned with such stuff. – Yours, etc,



Co Dublin.

Sir, – Much has been said in relation to the legal ramifications which may arise from widening the definition of the family as contained in the proposed amendment of Article 41.1.1 of the Constitution.

Perhaps the most immediate example of future legislative uncertainty is how the introduction to the Constitution of an as yet undefined term entitled “durable relationships” has the potential to create issues which could interfere with the operation and interpretation of the International Protection Act 2015.

The primary aim of this piece of legislation was to reform and streamline the system for determining asylum applications. However, it also removed the absolute right of international protection beneficiaries to apply for family reunification with extended family members. In that context, the Act defined spouses and civil partners as eligible for family reunification, only where the marriage or civil partnership subsisted and was formally registered at the date of the application for family reunification (sections 56 and 57). In addition, such applications are now required to be made within 12 months of the refugee declaration. It is worth pointing out that this legislation, as a reflection of government policy, was enacted at a time when the number of asylum applications was significantly lower than is now the case.

If the family amendment is carried, and given the right of certified refugees to apply for full citizenship after three years, it is inevitable that there will be calls to transpose the durable relationship concept into sections 56 and 57 in order to be consistent with the Constitution and to delete the 12-month cut-off point in the interests of fairness and natural justice. Indeed, in advance and regardless of any such amendments to the legislation, it is entirely possible that applications for family reunification will significantly increase, motivated by what could be considered as a legitimate expectation of a constitutional pathway for applicants to reunite with their partners who remain in their countries of origin.

When over 1,000 asylum seekers are living on our streets and around 18 thousand await a decision on their asylum applications, any significant legal uncertainty can only add to all the other pressures which are threatening to overwhelm our international protection system and to further undermine our ability to fulfil our responsibilities in this area. – Yours, etc,



Dublin 12.