The Constitution of Ireland is deemed as the fundamental law of Republic of Ireland. On the basis of the constitution, the national sovereignty of the Irish people is asserted. Through this constitution, the fundamental rights of the citizens are guaranteed, in addition to the election of non-executive president, separation of powers, bicameral parliament and judicial review (Menéndez, 2015). The individual rights granted through this constitution are covered under different articles and each right is enumerated in the fundamental rights heading. Through Article 41 of the Irish constitution 1937, the rights are afforded to the family and the individual members of the family. Due to these reasons, the constitution is deemed to play a crucial role in the family unit, as being the cornerstone in the society of Ireland (Chubb, 2014).
Article 41, through its subparts provides that family unit was the fundamental, natural and primary unit group of the society and that the imprescriptible and inalienable rights are possessed by this moral institution. Article 41 further provides that family is the crucial base for social order and cannot be dispensed from the welfare of the State or the Nation (ISB, 2015). The level of admiration in the constitution holds family to such a level, which has been described as family unit being placed on constitutional pedestal. However, it is crucial to highlight that the modern family covers the grey area in which the express rights have been given through outdated and narrow definitions (McCaughren and McGregor, 2017). In the following parts, an attempt has been made to critique upon these very rights, provided through Article 41.
Before the protections granted under the Constitution to the family unit are analysed, there is a need to obtain clarity on what is deemed as family, in a clear and precise manner. A family can be described as such a group of people who are related to each other and this could include the presence of relationship of father, mother or children management. However, there is no clear definition provided anywhere in the Irish Constitution which can define the term constitution. And due to the absence of this definition, the courts are required to impose their very own definition of the term family. The courts have adopted an interpretation of the constitution to only recognize the family unit, which has been based on marriage (Gilmartin, 2015).
This definition has been provided in the leading judgement handed down by Walsh J in the case of The State (Nicolaou) v An Bord Uchtala & The Attorney General  IR 567. This case saw the unmarried father, who was the plaintiff, taking an action against the adoption board since the child’s mother had put the child for being adopted without the consent of the father. It was claimed by the plaintiff that he was a member of the family based on Article 41. However, it was held by Walsh J that even though the unmarried individuals who co-habitat together and the children born from this union had to be referred to as a family, and would deem to have the outward appearance of family. However, as far as it relates to Article 41, particularly with regards to the guarantees covered in it, these are only confined to the families which are based on marriages (Supreme Court, 2017).
The wordings of Walsh J given in this case are one which garners interest and attention of different people, as this provides the very first definition of what can be deemed as a family as per the constitution in a concrete manner, based on the laws of Ireland. And this is also true as Walsh J acknowledged the presence of the different kinds of family units, in addition to the lack of the protection based on the Irish Constitution (Law Reform, 2009). The judge of this case also pointed towards the failure of the constitution particularly in the matter of the other non traditional family units. At the time of this decision, the cases of non marital family was not a common parlance, it can be stated in a safe manner these non orthodox family units are now a common occurrence in the present time, where the people are choosing to not get married and yet go forward with having a child (Devlin, 2006).
Even though the definition which has been outlined above seems to be a narrow one, it does provide protection through the constitution over a range of diversified family units, which is based on marriages. Included in these family units are the couples having children, the couples not having children, the children who have been orphaned of any married couple, the legitimized children and lastly, the separated couples (Allen, 2007).
The married couple who have children are deemed as the very basic kind of family unit which are attempted to be protected through article 41. One of the leading examples in this could be highlighted through the attempt of thee court for protecting the rights of such families as was seen in the leading matter of N & Anor v HSE & Others  4 IR 374. This case saw a young couple becoming pregnant and putting their child for adoption. This child had been placed with a new adoptive family and the child was put in the care of this family for around 14 months before the birth mother of the child changed her mind in September of 2005 and as a result of which, she made a decision of taking a legal action for getting the custody of her child again (V Lex, 2017).
The partner of the birth mother, who had been the biological father of the child, along with the birth mother got married in January of 2006 in Northern Ireland’s registry office. When the matter reached the High Court, it was held by MacMenamin that the child, who had been two year old by then, would be damaged in a psychological manner where she was made to part ways with the adoptive parents. The condition would have been difference if the same case had been made two years back as after these two years, a natural familial bond had been created between the adoptive family and the child (CRIN, 2006).
An appeal was made by the birth parents from this decision by the Supreme Court in the November of 2006, where the five judge bench took a complete legal standpoint on this issue. They decided that on the basis of the Constitution and the law, as was present at that time, the principle of primordial constitution provided that the welfare of the child would be served best by the natural family management. And that only a compelling reason could rebut this presumption. Holding the lack of ample evidence for rebutting this presumption, led to the Supreme Court deciding to allow this appeal, as a result of which, Baby Ann was sent back to her biological parents, in a periodical manner, so as to decrease the chances of her being psychologically distressed (CRIN, 2006).
It could be argued here that by taking the child out of the care of the adoptive parent’s care, who had fulfilled her needs, particularly in the most crucial stages of the formative years of the child just so that the definition of family given under the Irish Constitution could be justified, was an unfair thing to do on a child, along with for the adoptive parents who had raised her as her own. It had been argued by Enright (2008) that as per the Irish law, the child was just an incident in the controlling question, with regards to the parental rights, In case such happens that the behaviour of the parent towards the child is such that it has destructive or inevitable terrible results, the intervention of the State would take place in order to put the things in a right manner. And in all of the other matters, the child would be deemed as secondary to the will of his parents. There is also a need to highlight that the birth parents of the child had acted on the legal advice of getting married to increase their chances of getting the custody of Baby Ann. This shows that in the legal community of the nation, the inadequacies are recognized with regards to the protection which is granted to the co-habiting couples through the Irish Constitution.
When it comes to the married couples without children, it has to be stated that there is no compulsion of producing an offspring in order for a couple to be deemed as a family under the Irish constitution. The only thing which is recognized as a constitutional family is for the couple to be married and this marriage to be State recognized. Murray v Attorney General was a case in which Justice Costello had made a suggestion regarding the wordings of Article 41.1.1 to be deemed to include a married couple with no child as being a valid family (Madden, 2011). Marriage was described by Murray J in DT v CT  3 IR 334 p 405 as a solemn contract of partnership, which is formed between a man and a woman where a special status is given which has been constitutionally recognized and the same is not entered into for a specified period of time. Upon getting married, the man and woman enter into a bond which gets them a legal status. Upon getting into this relationship, the liabilities and obligations are formed (Conway, 2006).
This presents two very interesting points. It had been held by Justice Murray at one instance that the married couples do not have the legal right, but also have lawful obligations, which confirms that they are protected constitutionally. Also, he acknowledged that the bond of marriage is not made for a defined period. This shows that even the courts agree that the marriages would not last for lifetime and are likely to be broken, even when the religious weddings are meant for lifetime. The family recognized in Murray v Attorney General shows that court recognized the rights of the two married prisoners through Article 40.3.1 of the Irish Constitution (Constitution Review Group, 2017). This case shows a less socially advanced definition presented by Justice Costello where the marriage is deemed to be drawn from the Christian notion of partnership, in which if the consent is given once, the same cannot be revoked, resulting in life long relationship. And a married couple is a unit group covered under article 41, so even they are given the protection. However, when this verdict is critically evaluated it becomes clear that the validity or marriages without children is given on the basis of Christian notion of partnership, as a result of which, the same sex couples wedding is ruled out (Tobin, 2016).
There is a need to highlight that the Irish Constitution does not recognize the same sex couple marriage and the concept of co-habitees and as a result of this, they do not get the constitutional protections.
The co-habitees are deemed as such couples who live together, where they can have children, or chose not to have them. Even though such families do have all of the characteristics of the traditional family units, save for one, which relates to the union being based on marriage. As a result of the marriage lacking from such union, the constitutional protection is not available to them. This has been made amply clear from the different cases. The judgment of Justice Walsh in The State (Nicolaou) v An Bord Uchtala & The Attorney General case, it was stated that the co-habitees have all of the trappings as are found in the marital families even when the couples in such relationship are not married. And the Article 41 of the Irish Constitution only offers the protection to the families which are based on marriage (Constitution Review Group, 2017).
In this regard, there is a need to make reference to the case of Ennis v Butterly  1 ILRM 28. This case acts as a solid proof that the Irish laws are biased against such cohabitation and favour marriage. The judgement given by Justice Kelly provides that marriage and family has been given a special place in the constitution of the nation, which shows that the public policy of the state proclaims that cohabitation without marriage cannot be given the same status as that of a marriage (Greene, 1996). Only when the statistics of ten year gap period is analysed, it comes to be known that in 1996 there were 31,300 cohabitating couples and this figure in 2006 stood at 121,800. By 2010, the cohabitating couples accounted to one in every twelve family units (O’Brien, 2010). This number is surely bound to rise and the changes have to be incorporated in order to provide the protection to the sizeable part of society. This is particularly important as the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 allows the couples to be a part of civil partnerships, but does not permit the access to the institution of marriage, or the rights associated with this institution (Irish Statue Book, 2010).
When it comes to the same sex couples, it had been deemed as a social taboo for a long period of time. And even though these have become a common parlance, they still are not recognized as family based on the Irish Constitution. Even though there are lot of voices being raised to allow same sex marriage, the same does not have legal validity as of yet. And till the time this is properly created as an act, which comes into force, the same cannot be deemed as family for the purpose of getting rights under the Irish Constitution (O’Sullivan, 2012).
The rights given to the family take the form of marital privacy, as has been upheld in McGee v Attorney General  IR 284, where the Supreme Court held that the state could not interfere in the decision of the couple on the number of children they wanted to have, which led to the removal of contraception from Irish law. In Murray v Attorney General  IR 532, the court upheld the right of the married couples to procreate. Murphy v Attorney General  IR 241 was a case in which the court held the right with the married couples with regards to tax, to be not penalized as a married couple. MacMathuna v Ireland  IR 504 saw the court upholding that the social welfare codes and the aspects of taxation could not be deemed as the inducements to not get married and that the financial support was only centered around the child, which means there was no attach over the marital union (O’Sullivan, 2012).
On the basis of the discussion carried on the previous segments, it becomes clear that Article 41 of the Irish Constitution provides different rights to the families and the members of the families as individuals. However, it was also highlighted that these rights are available only when the family is deemed as a family. There are a number of relationships which are not given legal validity, resulting in no rights being provided even when the facets of traditional family are present in such relationship. This requires an amendment to be made in the Irish Constitution in order to include the modern relationships, so that the rights can be properly provided to the families.
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Tobin, B. (2016) Marriage Equality in Ireland: The Politico-Legal Context. International Journal of Law, Policy and the Family, 30(2), pp. 115-130.
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