E4 - Family, children, education Flashcards
Article 41
Family is heavily protected under article 41 of the Irish constitution. It provides that the states ‘pledges
itself to guard with special care the institution of marriage on which the family is founded and t protect against it attack’.
The right to Marry
The right to marry was identified as an unenumerated right in Ryan v AG. S v Minister for Justice
confirmed that the right to marry was protected as a personal right under section 40.3.
Protection from attack
– Article 41.3.1 protects the institution of marriage from unjust attack. A point arises as to whether this extends to ensuring there is no inducement against marriage as opposed to simply protected a marriage once it is entered into.
In Murphy v AG it was held that higher tax for married couples was in fact an unjust attack on institution
of marriage. So it shows that a couple cannot be placed in a worse off condition due to their marital
status.
McHugh v Minister for Justice (2012)
– McHugh v Minister for Justice (2012) provides that this
is NOT an absolute right. The minister for justice issued a deportation order against Nigerian woman
engaged to irish man *key point is engaged, not yet married. Article 40 proceedings brought seeking
release from custody.
While Ryan v AG identifies right to marry as unenumerated right it is not unlimited and may be restricted by factors. Found that marriage doesn’t give automatic right to non irish spouse to reside in Ireland. The decision here was manifestly disproportionate however and
would strike at the essence of a couples article 41 rights.
In Gorry v Minister for Justice (2020)
the importance of family rights was reinforced. Article 41 was
engaged as they were married. But this right must be balance with right of state to control borders. No automatic right to reside BUT decision must be proportionate and have regard to article 41. Appealed
to SC which upheld previous decision that the word ‘protection’ in article 41 along with ‘inalienable’
denoted an intention the part of the framers of the constitution to secure MAX protection for family
rights. Judge in court of appeal had held that in most cases the reasonable and proportionate decision could only lead to one conclusion i.e. that the married couple would be permitted to reside in Ireland. Court accepted that the position was not so absolute in relation to non citizen spouse and in
such cases would be appropriate to have regard to states right to secure its borders.
Autonomy in decision making
Re Matrimonial Homes, SC agreed that the encouragement of joint
ownership was important aspect of the common good and stability of marriage and protection of
family. Decisions should be made BY the family. Due to the language in the constitution the court felt
there was an extreme importance attaching to autonomy of the family.
