The Power that the Family provision has in the Irish Constitution

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The importance of the family unit in Irish society has always been obvious to me through studying case law. However, it wasn’t until we studied article 41 of the Constitution in our constitutional law module that I noticed how flawed the provision for the family is.

The ”family unit” is ultimately based on marriage, whether a child exists or not. This is all well and good until the status of unmarried mothers and fathers is reviewed. Despite even being a couple, unmarried parents are treated severely discriminatory. This discrimination can be seen in the following ways:

  1. Precludes protection for unmarried parents under article 41
  2. Provides constitutional authorisation for legislative discrimination of unmarried families.
  3. Deems non-marital families to be less worthy of recognition in comparison to married families.

Although unmarried women have limited protection for children by article 40.3 and the unenumerated rights doctrine, men have absolutely no rights! In the seminal case of State (Nicolaou) v An Bord Uchtala, the full effect of this discrimination can be seen as a father was unable to intervene with the adoption of his child from going through. The Court refused to recognise that this breached article 41 as they deemed the family to be founded on marriage.

Does this seem fair to you?

What bothers me is that there seems to be no desire for change to ensure there is equal protection to both classes of parents. The All Party Oireachtas Committee seem to have no desire in changing the wording of the Constitution and I simply cannot understand how such discrimination is permissible. Even in researching the topic, there seems to be no momentum for a change in this area either.

Maybe this position will change in a few years, considering the liberal advancements we have introduced recently, such as marriage equality. But I have to ask – How would you vote in a referendum if there was an argument to change the content of article 41 to allow EQUAL protection for both unmarried and married parents?

In the meantime, I found a very interesting journal about the rights of unmarried fathers, which you may be interested in. Additionally, more accessible information about the rights of unmarried parents can be found here.

Until next time,




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