The Supreme Court decision in the O’Meara case was made in the context of articles 40 and 41 of the Constitution as they stand – before any of the proposed amendments to article 41.
The court found that confining widowed people’s social welfare entitlement to those who had been married was unconstitutional insofar as it impermissibly discriminated against equality rights of bereaved unmarried father of three John O’Meara and his dependent children.
While it does not speak directly to the proposed amendments, it is an important consideration in the debate on whether there is any justification for amending the Constitution.
It is argued that de facto unmarried families are relegated to second-tier status by the present wording of the Constitution because “the family” is stated to be “founded” on marriage. But Monday’s Supreme Court decision demonstrates that those in non-marital families are nonetheless entitled to invoke their equality rights under article 40 to overturn legislation that unfairly, invidiously or arbitrarily treats them less favourably than married people in the same situations. The O’Meara case reasoning is not confined, I think, to social welfare law. It probably has implications for many other areas, not least taxation.
In 1980, the Supreme Court in the Murphy case invoked article 41 as it now stands – specifically including its reference to mothers not being obliged by economic necessity to engage in labour to the neglect of their family duties – to invalidate a law that imposed greater income tax liabilities on a married couple than on single people. The result was that income tax and other tax laws were amended to double tax bands, allowances and credits for married couples, regardless of whether one of them was working solely in the home.
It seems to me that, on the reasoning of O’Meara, the State will now have a significant problem in obstructing the current married peoples’ income tax regime from being applied to two people with children in long-term relationships with identical outward circumstances to those of a married couple.
The same may well apply more widely to assistance in purchasing new homes. Whether O’Meara would apply to taxation of long-term childless couples is, perhaps but not definitely, a different question.
The proposed amendment will extend constitutional family status to people in “other durable relationships”. But the decision as to what “durable relationships” means in any case will be left to the courts and ultimately to the Supreme Court. Instead of qualifying such “other durable relationships” as those recognised for the time being by laws enacted by the Oireachtas, the Government has deliberately chosen to take that determination away from the legislature and to vest it in the courts.
Of course, nothing at all prevents the legislature from extending married peoples’ tax treatment to other couples and relationships without any amendment to the Constitution. But such legislative power cannot circumscribe what a future Supreme Court decides is a “durable relationship”.
Why should it not be for lawmakers to decide on minimal criteria to qualify a non-marital relationship for treatment as a family – an institution said to have inalienable and imprescriptible rights and duties and to be the fundamental unit group of our society?
For instance, current cohabitants’ rights in family law are regulated by a legislative power to determine where they begin and end. They are substantially less that those afforded to spouses in family law. The Oireachtas circumscribes rights of cohabitants by law. To take one example, a cohabitant will not normally receive a portion of a family farm or business from another cohabitant if their relationship ends.
But if cohabiting relationships are, by constitutional amendment, elevated to equal family status, will it be open to the courts to invoke the Constitution’s equality guarantee to accord the same equality of spouses’ mutual rights and entitlements to separating cohabitants as apply to divorcing couples – including orders for property division?
Handing the role of determining what is or is not a durable relationship to the courts seems wholly unnecessary and deeply unwise because of its knock-on effects for marriages and the family. The Government insists that the Constitution will continue the existing State pledge “to guard with special care the institution of marriage”.
But the wider question that now arises is whether the State, by the proposed amendments, becomes indifferent to the question of whether cohabiting couples with children are married at all. What are the consequences of providing that marriages may only be dissolved by a court order often entailing property divisions under article 41.3.2 if other “families” may be dissolved by the unilateral decision of one party?
The O’Meara decision demonstrates that the State is at present free by law to remedy perceived injustices for those in durable relationships who are not married. With declining marriage rates, is it socially beneficial or wise to make non-marriage the easier, equal and increasing norm in the raising of children?