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Constitutional Rights The Family Notes

BCL Law Notes > Constitutional Rights Notes

This is an extract of our Constitutional Rights The Family document, which we sell as part of our Constitutional Rights Notes collection written by the top tier of University College Dublin students.

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The Family

• Special position on const.

• Traditionally - male, female and child

• Grandparents not recognised

The State….
o Same as property in naming the state

Recognises Family as society's natural primary and fundamental unit group; moral institution; inalienable & imprescriptible rights, antecedent and superior to all law

Natural law attitude

• Irish society not composed of individuals or units < suggested by CJ
Denham in a case

Guarantees to protect family in its constitution an authority; necessary basis of social order, indispensable to Nation & States welfare.
Art 8.1

Everyone has the right to respect for private and family life, home,

Public authority cant interfere except I accordance with law & if necessary in a democratic society in interests of > national sec, public safety or country's economic well-being, for preventing disorder or crime, for protecting health or morlas, or the rights & freedoms of others

• Family founded on marriage consisting of two adults and a child

R(M) v An t-Ard-Chlaraitheoir Who's the mother?
Surrogacy contract and wife unable to conceive a child for medical reasons.
She then said shed provide an ovum, fertilised by her own husband's sperm and then her sister would carry the pregnancy. (surrogacy service - this is what it is) genetic donor cut out? Issue: primary parents not married as its their dad and aunty, and she did not give birth
Presumption at common law to give way to the
- Donor as being the mother
- Genetic link.
- Mother = birth mother
- Not unalterable - matter for the Oireachtas
To regulate surrogacy arrangements. No criteria for SC to determine.
Legislative's branch job as a policy matter
Clarke J
- Twins now deprived of membership of family founded on marriage
There wasn't a dispute about her wanting to be the mother, it was for the registrar to register a mother as the brith mother. Interesting that they are saying that natural circumstances don't come into play when interpreting the constitution and its for positive law and humans to decide - contradictory to the natural law position in the const.
- Is a family founded on marriage
- States guards 'with special care' and 'protects against attack', the institution of marriage ON WHICH THE FAMILY IS FOUNDED.
- 41-42 > 'family' 'parent's means spouses.
- 40.3.1 Other family members (unmarried) are covered by other rights -
personal unenumerated right.

• Different viewpoints from HC on status of GP Caldaras
- Family = parents and children
- Generation beyond that have no constitutional relationship
- GP and grandchild might have a bond of family life
May not be as strong, but the EU court doesn't exclude it
Children mother died and there was an estrangement between her parents and the mothers father > court said
- GP may apply for guardianship
- Child's welfare crucial

Widower had his in-laws put as guardians in childs best interest.

TF v Ireland
- Childless marriage is still a family
- Just a pair of spouses are entitled to protection as family under const.

T(D) v T(C)
Civil registration act
- Heterosexual only a family.

Zappone & Gilligan v Revenue
Z & G > women wed in Canada and sought a declaration that they were married for tax purposes. Revenue commission
- Foreign marriage not recognised if unlawful here.
If you recognised their marriage, it would imply same-sex marriage here as well.
Dunne J said - There's no European entitlement either does state have power to limit marriage to heterosexual couple for child's welfare? Evidentiarily, unclear.
- Courts can't redefine what marriage is
It's not that the courts are creating a new definition of marriage because that would be unconstitutional, but said the Oireachtas can. - (surely this'd be unconstitutional and you'd need a referendum)
- Marriage just ASSUMED to be heterosexual in 1937 and 2004 civil registration act just re-affirmed this meaning constitution is not fixed and doesn't remain static but It's such a settled meaning already among everyone - You couldn't just come in a re-define it.
34 amendment of the constitution (marriage equality) 2015
- Art 41.1 allows same sex marriage

O'Shea & O'Shea v AG
Man could not marry his half-brothers divorced wife if the brother's still alive.
- This violates right to marry
- Rejected argument that there would be emotional duress

• Law deals with consequences of breakdown of normal marital relationship > judicial separation
Judicial Sep. and Family law reform act 1989
Made all provisions you'd expect in a divorce law > property etc
- apart from a provision saying that they could not marry anyone else while both remained alive.
Art 41.3.2
'no law…for the grant of dissolution of marriage…' 10th amendment of the constitution bill 1986

63.5% No

15th amendment 1995

• 50.3% yes.
- At date of institution of proceedings, spouses have lived apart from one another for a period of, or periods amounting to at least 4 years during the previous 5 years.
- No reasonable prospect of a reconciliation
- Such provisions as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law and
- Any further conditions prescribed by law are complied with


• Equal rights in relation to the family

• Reflects general equality between H & W in context of marriage

Protestant father and catholic mother agreed that children would be brought up as catholic. Husband changed his mind and said some should be brought up as protestants. He argued on basis of common law that gave father sole authority to decide how people brought up children.
- Father has no special entitlement or right >
must both agree and if they do not, the court will then decide.
- Reference to parents = reference to them equally

• Survivor sole guardian usually

• Also, possible that dead parent can choose a testamentary guardian alongside the surviving spouse

• Court decides disputes • Even devoid of a testamentary provision, courts can appoint guardian taking applicant's circumstances into account.

• Law in relation to coercion >
- offence of a wife to plead that she did it in his presence which implied that he let her do it.

DPP v Walsh
DPP was allowed to rely on the equality of spouses in order to deprive someone of relying on a charge. The prosecution saying that a defence to a criminal charge was unconstitutional to the family status in const.
- coercion defence unconstitutional

Husband injured in an incident due to negligence of superiors in exposing him to danger > claim against state. As a result of the injuries, he couldn't sustain
'full normal marriage relations to his wife;
It was established at common law - loss of consortium - you could get damages to the person who caused the injury. There was non equal provision for wives
- unconst. to recognise that husband could sue for loss of consortium and wife could not.
- Extend the right to the wife and remove inequality that both spouses can sue
- Leave it to Oireachtas to abolish it

Up to this case, a woman who was married was considered to have dependent domicile. Domicile is the law's understanding of which jurisdiction governs your legality. Basically, your domicile was the same as your husbands. In order to recognise a foreign divorce, both had to have same domicile. So > as long as a husband moved to England for instance for divorce, the wife could get divorced. But this wouldn't work the opposite way.
- Struck down doctrine of dependant domicile - Change common law rule to make it that everyone has independent domicile.

• Marriage couple enjoys distinct and special privacy over individual's relationship w. others.

• Broad principle that a joint decision made by spouses must be respected by the State.

- Contraception is a family's private decision and it must be respected

Challenged const. of legislation prohibiting homosexual sex. They side stepped this and They said he has no locus standi because he was not married. Also,
homosexual marriage was not anticipated so the courts said that there is no chance you WILL get married.

41.2 • 'woman's life within the home'.

1. … by her life within the home, woman gives to the State a support without which the common good cannot be achieved

2. State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

L (B) v L (M)
Mothers should get property rights and get a percentage of the income due to the fact she's not entitled to work.
- Mothers not entitled to part ownership of the family home, because of unpaid work as homemakers.
Re Matrimonial Home Bill 1993
- H & W automatically jointly own home, unless one of them gave up claim or a court ordered otherwise.

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