Definition of ''Family'' in the Irish Constitution
The Definition of “Family” in the Constitution Should be changed
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”[1].
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.”[2].
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[3] : Walsh J - “the family referred to on
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”[1].
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.”[2].
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[3] : Walsh J - “the family referred to on