What change is proposed in the family referendum?
The first part of the amendment would insert new text into Article 41.1.1 of the Constitution, expanding recognition of the family to embrace families founded on “other durable relationships” in addition to those “founded on marriage”. The second part would remove from the Constitutional pledge to protect marriage in Article 41.3.1 the statement that “the family is founded” on the institution of marriage. No change is proposed to the description of the family “as the natural primary and fundamental unit group of society”.
Critics say the meaning of ‘durable relationships’ is not clear. What does the Electoral Commission (An Coimisiún Toghcháin) say?
According to the commission, the full context within which words appear in any law is relevant to their meaning. Citing the wider text of Article 41.1.1, it says any “durable relationships” would also need to constitute a “family” and a “natural primary and fundamental unit group of society”. The commission says the phrase “durable relationship” is found in the 2004 EU Citizens’ Rights Directive, noting the phrase is similar to the concept of a “de facto relationship”.
That was the source for provisions in the Cohabitants Act of 2010. The act gives “qualified cohabitants” the right to apply for certain discretionary reliefs, including financial reliefs and property transfers, provided certain requirements are met. Still, the commission notes that the interpretation of “durable relationships” under the EU directive “may not necessarily be given the identical interpretation” in the Constitution. But it says legislation and case law based on the directive and “qualified cohabitants” under the 2010 Act may be regarded as providing “some guidance”.
What do supporters of the amendment say?
Groups representing one-parent families and unmarried parents and couples say the proposal will modernise the Constitution, giving overdue recognition to families not founded on marriage. They include Treoir, an information service for unmarried parents, and One Family, a group for one-parent families and people sharing parenting or separating. Their supporters include former president Mary McAleese, who says the proposal would give respect and recognition to families not based on marriage who are “deliberately absent” from the Constitution.
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According to the National Women’s Council of Ireland, some 40 per cent of families in Ireland are non-marital. For their part, Government campaigners say the change will provide Constitutional recognition to provisions already in cohabitation and succession law and the welfare system that affect people in non-marriage families.
In addition, the Government says special protection for marriage in the Constitution would be unaffected by the amendment. Minister for Equality Roderic O’Gorman, whose department led preparations for the referendum, has told the Dáil the term “durable relationship” was “intended to encompass relationships of strength, stability and commitment, such as are consistent with the existing definition of family”.
What do opponents say?
Leading the charge against the proposal is Senator Michael McDowell, former tánaiste, justice minister and attorney general. A group he is part of, Lawyers for No, says the insertion of “other durable relationships” would unnecessarily bring huge uncertainty into the Constitution. The group says it is particularly problematic that the Government declined to include in the proposal a provision for the Oireachtas to define durable relationship.
[ Lawyers group urges No vote in family and care referendumsOpens in new window ]
While it will be for the courts to set out definitions, the group says any court rulings would be based only on “hard cases” where parties are in a dispute. The group likens this to a constitutional blank cheque: voters are asked to delegate significant policy questions with implications for State resources to judges and not the Oireachtas.
Can someone be in a marriage and a separate durable relationship at the same time?
Fianna Fáil minister of state Thomas Byrne, leader of his party’s referendum campaign, says it is clear that a person can be married – but separated for a long time though not divorced – and be in a relationship cohabitating with someone else for a long time.
“There are numerous examples of this,” he says. “The marriage itself poses obligations and will potentially continue to do so until any divorce. But if you are living with someone else it may well be that cohabitation rights accrue depending on how long you are living with the person. This is already the case and the constitutional amendment won’t change it. There’s a certain amount of older people to whom this may apply – but the obligations may be already there in law. What the amendment would do is to give constitutional recognition to the new relationship which is not there at the moment.”
However, Lawyers for No says the amendment “opens the door to concurrent and successive families with multiple partners”. Arguing there will be no constitutional protection for family members when durable relationships break down, they note married families will still be required by the courts to make proper provision before any divorce.
Are there other divisions?
Very much so. Among many other complaints, Lawyers for No warns of “long-term consequences for family law, family property rights, succession law, pension law, tax law, welfare law, and migration and residence law”. This is in direct contrast to the Government, which insists “the proposed amendment will not affect taxation, succession or family law”.
Will there be a policy impact?
There is no clarity on this question. True, civil servants considered “any potential impact on existing law and policy”. But the Government insists their papers are precluded from publication until after polling day because of the McKenna ruling of the Supreme Court, which forbids public funds to be spent advancing only one side in a referendum debate.
[ Referendums: Nearly 40,000 apply to vote in 48 hours before registration deadlineOpens in new window ]
On tax, for example, Revenue said it was “not in a position to comment” when asked whether it carried out an impact analysis on any potential implications. Referring to guidance from the Taoiseach’s department, Revenue said it was the Electoral Commission’s responsibility to provide a general explanation of the proposals. But the commission said it too was constrained, citing its duty not to make comment lest it could be viewed as promoting a particular referendum result. The commission gave no answer at all when asked to set out any implications for tax, pensions, family law, succession and the law and rules of intestacy.
Referendums: What the amendments would really mean
Will succession law change?
Again, opinion is divided. The Government says rights to inherit property are set out in legislation and not by the Constitution, adding that a person does not have succession rights merely because they are in a durable relationship or a family relationship with constitutional recognition. “A person only has rights to inherit property that are conferred by legislation, such as the Succession Act 1965 and the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. This would not change should the amendment be passed,” the Government says. “Legislation governing succession rights does not refer to people in durable relationships and a Yes vote on Family will do nothing to change that.”
Still, Lawyers for No says there will be “inevitable pressure based on equality rights and family rights as redefined to accord spousal succession rights to partners in other durable relationships so as to prevent manifest injustice and unfairness in ‘hard cases’.”
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Will there be an impact on immigration?
Mr O’Gorman has told the Dáil the Government has “clear legal advice” from the Attorney General “that there will be no legal impact on immigration law or, in particular, international protection law”. Still, Lawyers for No highlights remarks by Fine Gael Minister of State Neale Richmond. He has spoken about “serious consequences” from changing the definition of the family “particularly when we think of immigration law, and proving that somebody is a family member, family law, family reunification this will allow that to happen as well, so we’re keeping up to pace with other communities”.
Byrne of Fianna Fáil says the courts have always given the Oireachtas deference on immigration law. “Already the law provides for partners of EU citizens to come to the country in some circumstances but it’s not guaranteed. On the other side there have been cases where non-EU spouses of Irish citizens have been subject to deportation orders. This amendment won’t change any of this,” Byrne says.
What change is proposed in the care referendum?
If carried, this amendment would change the Constitution by deleting two articles referring to the life of women in the home while inserting a new article on the provision of care. The current Article 41.2.1 says that, through their life within the home, women give “to the State a support without which the common good cannot be achieved”.
It is followed by Article 41.2.2 which says the State “shall endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”. These two articles would be removed and replaced with a new Article 42. B saying: “The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.”
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What does the Electoral Commission say?
The commission notes the reference to women and mothers in Article 41.2, saying the proposed new text would lead to constitutional recognition for any and all family members who may be providers of care. While the commission goes on to say the State would be required to “strive to support” the provision of care within families, it says the precise nature of the proposed duty on the State would first be largely a matter for legislation enacted by the Oireachtas.
Whether such legislation complies with the proposed new obligation on the State could then become a matter to be considered by the courts. Ms Justice Marie Baker, chairwoman of the commission, has noted the word “endeavour” in the current Article 41.2 and the word “strive” in the proposed new article: “The commission has taken the view that endeavour means try and strive means try very hard.”
What do supporters of the care amendment say?
Many critics of Article 41.2 say it presents only a narrow view of women, with antiquated language that reflects sexist attitudes of the 1930s to describe their life and duties within the home. Organisations such as the National Women’s Council of Ireland, whose Yes campaign in both referendums is backed by 29 civil society and trade union groups, see the proposed new article as the opening of constitutional recognition for all women and men who provide care for family. They say the passing of this referendum would send “a strong message that Irish people want the Government to put in place real supports for all those who provide care and for disabled people to live independent lives”.
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What do opponents say?
The Free Legal Advice Centres group, a human rights and equality body that supports the family referendum, has criticised the proposed new care amendment as “ineffective” and “implicitly sexist”. This group says the proposed amendment is unlikely to provide carers, people with disabilities or older people with new enforceable rights or improved services from the State. It goes on to say the proposal gives constitutional expression to “harmful stereotypes” in care provision and “potentially compromises” the rights of people with disabilities. In addition, the Irish Council for Civil Liberties says the proposed new provisions on care “will not provide meaningful legal protection to any person who gives or receives care”. Still, the council has welcomed the prospective removal of Article 41.2 because it “negatively stereotypes women”.
Why is the word ‘strive’ problematic for opponents?
The Lawyers for No group argues the proposed new wording confers “absolutely no rights of a justiciable kind” on anyone in need of, or providing, care, even though it would go into the Fundamental Rights chapter of the Constitution. Conor O’Mahony, professor of constitutional law and child law at University College Cork, has said the proposed new amendment “lacks any meaningful substance” and described it as halfhearted and “mostly” symbolic. “In practical terms, the use of the word ‘strive’, and the omission of the requirement to take ‘reasonable measures’, mean that no remedy other than political campaigning will be available if future governments ignore the aspirations of Article 42B.”
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Senator Tom Clonan, a disability rights campaigner and himself the father of a young man in need of lifelong care, has dismissed the wording as a “slap in the face” for disabled people and carers.
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