Sir, – Should the forthcoming referendums result in the adoption of the proposed amendments to Article 41.1 of the Constitution, the State will recognise “the Family whether founded on marriage or on other durable relationships as the natural, primary and fundamental unit group of society” while pledging " to guard with special care the institution of marriage and to protect it against attack”.
This legally complex formulation not only begs the question as to what relationships outside marriage will be constitutionally recognised as “durable” but also as to what circumstances will constitute an attack on marriage as an institution compelling action by the State?
Should what the State regards as recognised non-marital " durable relationships” exceed marital relationships what action, if any, will the State be required or enabled to take to curtail the number of such relationships or is it constitutionally disempowered from so acting?
Whereas “marriage” envisages a relationship that at some stage is more than mere friendship, involves intimacy and a likelihood of cohabitation, to constitute a “durable relationship” need any of those factors ever exist?
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Nor is it clear whether to be a “unit group of society” recognised by an amended Article 41 is cohabitation necessary as many circumstances currently exist which result in a married couple not cohabiting being regarded as a “unit group” under Article 41 and they are not confined to broken marriages.
Can close friends of long or short duration who have never cohabited nor been intimate, and do not envisage ever doing or being so, or simply cousins or neighbours or business partners or carers for an extended period residing with a physically or intellectually disabled person, be regarded as having a “durable relationship” or as being “a unit group of society” and what are the legal implications for the State, the Houses of the Oireachtas and society of all of this?
To date there are no clear or definitive answers to any of these questions.
The truth is that nobody knows until this amended constitutional article is applied by the Supreme Court to a variety of possible circumstances and legal disputes.
As for the anachronistic provisions of current Article 41.2, its replacement, like the current article, will have no substantive legal implications and is just constitutional hyperbole and window dressing.
The fact is that the constitutional amendments now the subject of our latest referendums are simply legally flawed political virtue signalling. If adopted, the amendments to Article 41 will simply act as catalysts to the initiation of litigation required to unravel the legal obscurity created by one and that definitively establishes the vacuous irrelevance of the other.
Having advocated for reform of Articles 41 and 42 in various editions of my book on Irish family law over many years, it is disappointing that these fundamentally flawed amendments are the subject of a referendum.
The amendments made to our Constitution’s family provisions over the past 12 years to give greater explicit recognition to children’s rights, to provide for considerate and reasonable divorce legislation and for same-sex marriage were identifiably beneficial, addressed glaring needs and corrected injustices for too long ignored.
What is now before us cannot legitimately be so depicted. – Yours, etc,
ALAN SHATTER,
(Former minister for justice),
Dublin 16.
Sir, – Diarmaid Ferriter appears to agree with the viewpoint that referendums best serve democracy when they are rarely used and when they have some concrete practical implication (“Heading for the referendums does the electorate know what it is voting for?”, Opinion & Analysis, March 1st).
I fail to see how a Yes vote on March 7th will make any real difference to the ordinary lives of people.
We also need to reflect on the words of the late Peter Sutherland, who was much maligned in 1983 when he warned against the dangers of language that was “ambiguous and unclear”.
Did we learn anything from him? – Yours, etc,
MARGARET LEE,
Newport,
Co Tipperary.