A constitutional amendment and new laws are needed to reflect the changes in family structures and protect the rights of children, writes Geoffrey Shannon
A report on family life in Ireland launched recently by the Minister for Social and Family Affairs, Ms Mary Coughlan, highlighted the need to provide a broader definition of the family in light of modern societal changes.
The report, Families and Family Life in Ireland: Challenges for the Future (Department of Social and Family Affairs, 2004), launched on February 25th, identified the issues that arose during public consultation fora hosted by the Minister last year.
Ms Coughlan held that State policy should not favour one family form over another. Alluding to the fora discussions, the Minister argued that: "Given the major social and demographic changes that have occurred in Ireland in recent years, it is necessary now to bear in mind the different forms of family in developing policies to promote the well-being of individual members, and social cohesion, a point that came through from many participants at the fora."
However, Ms Coughlan stated that she did not favour constitutional change to reflect Government policy.
The issues highlighted in the report on family life are also reflected in the recent census figures. These figures reflect the fact that new family forms are on the increase. In particular, the number of lone-parent families is rising. The number of divorced people has risen from 9,800 in the 1996 census to 35,100 in the 2002 census while the number of separated (including divorced) people has increased from 87,800 in 1996 to 133,800 in 2002.
There has also been a significant 35 per cent increase in the number of cohabiting couples, which now make up one in 12 family units. In fact, the number of cohabiting couples has risen since 1996 from 169,300 to 228,600.
Of the 15,909 births registered in the third quarter of 2003, 4,981 (31.3 per cent) of all births were outside marriage. In Limerick city for this period, births outside marriage accounted for 55 per cent of all births.
Throughout Europe, and beyond, similar trends emerge. In fact, in Iceland in 1998 two out of every three births were outside marriage. One of the enduring ironies is that the number of children born outside of marriage in Ireland is greater than the European average of 1 in 4 births.
The existing legislative framework does not, however, reflect the foregoing changes in family structures. The reluctance to legislate in this area must now be addressed as a matter of some urgency. Any such legislation need not prevent marriage been regarded as a type of utopia representing durability, security and stability in a relationship.
Why is the legal definition of "family" in Ireland so rigid, so inflexible and fixed? The answer lies in Article 41 of the Constitution which recognises the family as the natural and primary unit group of society. The family which the Constitution contemplates as deserving such protection is that of the nuclear family based on marriage alone.
In the face of such a restrictive interpretation of the "family", individuals have sought redress under international law through international human rights treaties.
The most significant international human rights treaty from an Irish perspective is the European Convention on Human Rights (ECHR). Article 8 of the ECHR guarantees as a basic right, the right to respect for private and family life, home and correspondence. It is concerned more with the substance rather than the form of the relationship. The ECHR unlike the Irish Constitution makes no distinction between the family life of a marital and non-marital family.
The law in Ireland on the other hand leans strongly against the non-marital family. De facto families are effectively outside the ambit of legal protection in Ireland. Cohabitation agreements, for example, are not generally recognised by Irish law as such contracts are viewed as contrary to public policy and are therefore unenforceable.
The High Court has recently stated that unmarried persons are "free agents" who owe no duty to each other.
There is a need for a Constitution which affords equal rights to all families. We should not forget the children of these families who are a voiceless and vulnerable minority group in society. Indeed, the constitutional position of these children has proven to be far from secure.
It hardly needs to be stated that the measure of a democracy is the manner in which the needs of the most vulnerable are considered and met. That said, one notable feature of the Irish family law system is the relative invisibility of children.
For example, children are caught in the crossfire of relationship breakdown. Currently, with no way of exercising their rights, children are in a uniquely vulnerable position in that they cannot exercise their rights during childhood. It should be stated that childhood is only for a defined period of time and does not stand still. The Constitution should be amended to contain a specific declaration on the rights of children.
The current Government has taken steps towards improving the family law system. For example, the need for some form of national machinery to advance the development of support services has, in part, been met by the Family Support Agency. A more tangible link between the court system and support services should also be created, as in New Zealand.
Since the adoption of the Irish Constitution in 1937 the nature of the Irish family has changed dramatically. There is little doubt that the Irish family law system now requires nothing less than a major overhaul if it is to meet the increasing demands placed on it. The law must now root itself in reality and not emotive or traditional rhetoric.
The time is now ripe to consider changing the law to facilitate a broader and more inclusive definition of the "family" in a manner that will promote and foster the best interests of children. We need to adopt a more "functional" approach to the family, an approach based on the fact of the parties living together rather than the nature of the relationship between the parties. This may involve amending Article 41 of the Constitution.
We need to depart from a system of family law where legal status alone is the sole determinant of family rights and privileges. Let us hope that the recently published report on family life will provide the impetus for this new approach to family law.
Geoffrey Shannon is a solicitor and is the Irish expert on the Commission on European Family Law. He is the editor of the Irish Journal of Family Law and is the author of a number of books on family law topics.