Article 41 of the Constitution recognises the Family “as the natural primary and fundamental unit group of Society”, and as a “moral institution possessing certain inalienable and imprescriptible rights” which are “antecedent and superior to all positive law”. The State guarantees to protect the Family in its constitution and authority “as the necessary basis of social order and as indispensable to the welfare of the Nation and the State”.
Article 41 of Bunreacht na hÉireann contains the main provisions relating to the family. “It is generally considered that Articles 41 and 42 were heavily influenced by Roman Catholic teaching. They were clearly drafted with one family in mind, namely the family based on marriage.”. Since 1937 when the constitution was drafted there has been major social changes such as, changing attitudes to sexual behaviour, contraceptive use, social acceptance of pre marital relations, cohabitation and single parenthood, social acceptance of divorce, just to name a few. These social changes which would not have readily existed in 1937 have not been adapted to in the Constitution in Article 41/42 concerning the ''family''. Simply put the definition of family in the constitution is old fashioned.
I am of the opinion that an amendment to “The Family”- namely Article 41 is required. I base my argument on 3 main reasons 1) More types of family should be recognised, not just that of a marital family. 2) The definition of family should be changed to include expressed rights of a child incorporated into Article 41 and the rights of a child not just fall under that of ''the family'' 3) The wording of the rights of the family to change to allow for more state intervention.
Though the “family” is not defined in the constitution the Supreme Court held that the family is based on marriage – State(Nicolaou) v An Bord Uchtála : Walsh J - “the family referred to on [Article 41.3.1] is the family which founded on the institution of marriage, on which the family is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the laws for the time being in force in the state”. Article 41.3.1 states “The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect against attack” . From this definition it appears that a non-marital family would not be protected by the State against attack. In my opinion this provision should be amended to conform to the social change that I have previously mentioned as a family in current times is no longer just a marital family.
“ The law must, as far possible mirror contemporary civilization and as that changes so must the law. If the law becomes too rigid and inflexible, then there is always the danger that it will conflict with the needs of the people, with all the unfortunate consequences to which conflict may arise...........during the dynamic periods of History ........for it becomes essential for the legal system to adjust itself to the novel conditions of social life”
As a general rule most rights and obligations flowing from family law legislation are confined to families based on marriage. There are few contexts where non marital relationships are recognised such as domestic violence and wrongful death.
The European Court of Human Rights have taken broader approach then Ireland and has been deemed to protect inter alia the family life of non-marital parents and their children. “It is likely that the failure to recognise the rights, and indeed the duties, of the members of non-marital families may constitute a breach of Art.8 of the European Convention of Human rights, which requires that the State respect the family life...