Dr Tom Hickey of Trinity College’s School of Law and Government in two recent letters published here on the Family referendum correctly points out that the courts, including the Supreme Court, will usually defer to the Oireachtas to a considerable degree in matters of policy when adjudicating on whether laws are incompatible with the Constitution.
But, alas, that is not the issue or the problem with the 39th Amendment of the Constitution (Family) Bill.
The Government has deliberately chosen not to allow the Oireachtas by law to decide on the meaning and extent of the term “other durable relationships” but to hand over to the courts the task of deciding what that term means.
When pressed to amend the Bill, rushed through the Oireachtas by guillotine motions, to confine it to “durable relations as prescribed by law”, Minister O’Gorman put it on the record that the Government disagreed “with that approach”. He gave as his frank explanation the following reason:
“In respect of durable relationships being prescribed by law, the concern is that this approach would involve differential treatment between families founded on marriage and those not founded on marriage. The former would automatically fall within the constitutional definition and protection. The latter would only do so if they satisfied relevant statutory provisions”.
That statement of the effect of the proposed amendment is of crucial importance, and it has been largely overlooked in media coverage of the proposal.
Firstly, it means that deference to the views of the Oireachtas as to the exact future meaning of the constitutional term, “The Family”, when applied to “durable relationships” is to be irrelevant; it is to be decided by courts who alone will have the function of deciding the meaning of the phrase.
We have to bear in mind that if the amendment is passed the durable relationship family will now be elevated by article 41.1.1 to being an “institution” with rights which would be both “inalienable and imprescriptible” and “antecedent and superior to all positive law”. That includes Oireachtas statutes.
According to the Minister, the intention is that there will in future be no “differential treatment between families founded on marriage and those not founded on marriage”. If so, equality issues inevitably arise for any differential approaches in family law, succession law, pension law, social welfare law, and tax law.
This approach contrasts totally with existing statutory provisions relating to the rights of cohabitants. Certain cohabitants, under an Act of 2010, are afforded certain protections, as “qualified cohabitants” if their relationship ends by death or otherwise if, but only if, they as two adults have cohabited “as a couple” in an “intimate and committed relationship” for five years immediately before the ending of their relationship or for two years if they together have one or more dependent children.
Even then, cohabitants by law are not “qualified cohabitants” if one or both of them is during their relationship married to someone else and where at the time that the relationship ends has not lived apart from his or her married spouse for four of the preceding five years.
Only “qualified cohabitants” are by statute law given quite limited rights to maintenance and property division, such as division or sale of a home, a business, or a farm, and, crucially, all cohabitants are fully entitled under section 202 of the 2010 Act to freely contract out of such rights by formal agreement between them whether made before or during their relationship.
Such agreements between married persons (including “pre-nups”), are generally not enforceable on public policy grounds, save in the case of spouses’ rights under the Succession Act.
These are all conditions decided on by democratically elected and accountable parliamentarians with the capacity to amend them in future.
The great advantage of the 2010 Act is that it lays down a clear meaning for cohabitation relationships. People know if they are married or not. People in other relationships can know whether they are legally “qualified cohabitants” with all that may entail by looking at the 2010 Act.
If we leave the meaning of “durable relations” to future case law, will the courts accord family status to what are now unmarried childless cohabiting couples after two or five years? Will “durable” mean “of proven duration” and, if so, of what duration?
Will one party to an unmarried childless cohabitation be free to end its constitutional family status simply by exiting the relationship?
Will parties to an undissolved marriage or to a cohabitation be free, without impediment, to establish a further constitutional family?
Most importantly, why should the nature, status, and entitlements of persons in relation to their imprescriptible family rights depend on future case-law outcomes amendable only by referendum?
The Family referendum is not merely a step into the “known unknown” – but into an entirely foreseeable and avoidable mess.
