Family

Question 1

What article refers to the family

Answer 1

Articles 41-42A

Question 2

Give a background on these articles

Answer 2

Articles 41-42 originate from the Roman catholic teachings so they are subject to a lot of debate now that Ireland has become more liberal and secular
3 key reforms
1/1997- ban on divorce lifted
2/2012/ con amended to remove distinction between the marital and non-marital child- Article 42A
3/2015- Same sex marriage

The words to recognise/to acknowledge/ inalienable and imprescriptible are only used in these articles

Question 3

What article refers to marriage

Answer 3

41.3.1- the state shall protect the institution of marriage and prevent it from unjust attack

Question 4

What was the original definition of marriage?

Answer 4

Murray v Ireland- Costello J
derived from the Christian notion of a ‘partnership based on irrevocable personal consent given by both spouses which establishes a unique and very special lifelong relationship’

Question 5

What amendments show that this is no longer a good def?

Answer 5

15th amendment- divorce- no longer irrevocable consent or lifelong

24th amendment- gay marriage-no longer Christian notion

Question 6

What is the current definition of marriage?

Answer 6

HAH v SAA-O’Malley
is the voluntary entry into mutual, personal and legal commitments based on an equal partnership between 2 persons, both of which have the legal capacity to enter into.

Question 7

Does Ireland recognise polygamous marriage?

Answer 7

HAH v SAA 2017

Facts: Concerned a man who was married to his wife but got married to another woman following Lebanese law.

Issue: Whether or not Irish law would recognise polygamous marriage.

Held: O’Malley on behalf of the SC took the view that the law would refuse to recognise a marriage if that posed harm to the public. Concluded that no such harm was created by recognising a potentially polygamous marriage. However, this marriage was actually polygamous and the court said that this wasn’t something that could be recognised under the Constitution- pointed to the 34th amendment- only marriage between 2 people. Took the view that an actual polygamous marriage was incompatible with the notion of an equal partnership between 2 adults.

Conclusion: 2nd marriage was not recognised however, it did not affect the legal status of his first marriage.

Question 8

Does Ireland Recognise Marriage by proxy?

Answer 8

Hamza v Minister for Justice 2010

Held: Cooke J took the view that a marriage by proxy is recognised by Irish laws where it complies with the relevant country’s law and no factor of public policy prevents the state from recognising the marriage by proxy.

Appeal: The marriage could be recognised, Fennelly J stated that Cooke J made the right judgement.

Question 9

The right to marry
State both cases

Answer 9

O’Shea v Ireland
McHugh v Minister for justice

Question 10

O’Shea v Ireland

Answer 10

Facts: Concerned the consistency of the deceased wife’s sister’s marriage act of 1907. The legislation prohibited a man from marrying the divorced wife of his brother while his brother was still alive. The couple argued that this infringed on their constitutional right to marry.

Held: Laffoy J agreed, she noted that the state had not provided any evidence to suggest that permitting this couple to marry would undermine the stability of marriage. Also noted that the legislation would not have the effect of preventing a couple like this from entering into a relationship.

Question 11

McHugh v Minister for justice

Answer 11

McHugh v Minister for Justice 2012

Facts: Concerned a couple that was about to get married when the bride was arrested by the Garda under immigration laws because she didnt have a right to reside in Ireland.

Issue: Did the actions of the state in preventing the marriage from going ahead, infringe the rights of the parties to marry?

Held: Hogan J took the view that it did not, noting that even if the couple had gone through the marriage ceremony, it wouldn’t have offered the wife protection of any deportation order that had been made.

Question 12

The right to protection against attack. State the cases on tax laws

Answer 12

Murphy v AG
Muckley v Ireland

Question 13

Murphy v AG

Answer 13

Facts: Concerned the disparity in treatment between married couples and cohabiting couples under the income tax code. Marital couples were treated less favourably than cohabiting couples for taxation purposes. The couple were married and the husband got no benefit of tax allowance. However, a cohabiting couple who weren’t married were taxed like 2 single people.

Couple: Argued that as a married couple, they were being treated less favourably than a cohabiting couple and this amounted to an attack on the institution of marriage by the state through the income tax code.

State: Argued that the difference in treatment should be put alongside the various other benefits the state provides to married couples that it didn’t provide to unmarried couples.

Held: The SC agreed with the couple, they took the view that the couple were being penalised because they got married and that was a breach of the pledge of the state to protect the institution of marriage and guard it against attack. That breach couldn’t be justified by the fact that they got other benefits that cohabiting couples didnt get.

Question 14

Muckley v Ireland

Answer 14

Facts: The Oireachtas enacted a piece of legislation which focused on married couples who had defaulted in the payment of tax pre-Murphy v AG. The provision sought to compel those married couples to pay the same amount of tax that married couples had to pay before the decision in Murphy v AG.
Justification: Aimed to achieve equality of treatment between tax-compliant married couples and non-tax-compliant married couples.

Couple: The couple argued that they shouldn’t be compelled to pay this tax because the SC had already ruled that this code was unconstitutional.

State: The state believed that the ruling in Murphy was that legislation could not be enacted to encourage people not to get married and this legislation only applied to couples that were already married.

Held: SC reaffirmed that their ruling invalidated any statutory provision that discriminated against couples when compared to cohabiting couples.

Question 15

Inducement test
State case and explain

Answer 15

Mhic Mhathuna v Ireland

Facts: Concerned a married couple who complained about the fact that unmarried mothers with children received certain welfare payments and tax breaks that were not provided to married couples.
The couple relied on Murphy and Muckley seeking to have better provisions made for them as a married couple.

Note: The comparison in this case was between a household with married parents and children and a household of an unmarried parent with children, the comparison was not the same.

Held:
HC: Carroll J took the view that such a provision didnt amount to an inducement to couples not to marry. These provisions focused on the welfare of the child. Did not refer to the Muckley test insofar as inducement was not accepted.

SC: Upheld Carroll J’s judgement. Took the view that the provision of additional support for one-parent families was not unconstitutional and that the Oireachtas could have a policy of supporting one-parent families and it wasn’t up to the courts to decide how far that support should go.

Question 16

Other legislation State cases

Answer 16

Hyland v Minister for social wellfare
Facts: The plaintiffs were a married couple who were both in receipt of unemployment payments. There was a provision in the social welfare code that restricted the amount of unemployment payments that a married couple could jointly claim. The limitation didnt apply to an unmarried couple who were cohabiting.

Held: SC took the view that these arrangements were penalising people who were married and were treating them less favourably than cohabiting couples. Legislation deemed unconstitutional.

Note: 6 weeks after the decision, the social welfare code was extended to limit cohabiting couples.

H v ESB
Facts: Concerned welfare payments where the couple’s joint income was taken into account for married couples but only individual income for cohabiting couples.

Held: Keane J upheld the distinction taking the view that a married person has legal obligations to maintain and support their spouse that didnt exist for cohabiting partners at the time.

Tf v Ireland
Held: SC rejected the argument that the Judicial Separation Act of 1989 in allowing spouses to seek judicial separation was an attack on the institution of marriage. Cohabitation has to be based on consent and cannot be enforced.

P v Minister for justice
Held: SC rejected the argument that the state’s duty to protect the married family prevented the minister from deporting a non-citizen. The court was reluctant to interfere with deportation orders. The minister has a right to deport non-citizens and this did not amount to an attack on the institution of marriage.

Question 17

Non legislative contexts
State cases

Answer 17

ER v JR
The communications between a marriage counsellor and a married couple were privileged, evidence of the state upholding the institution of marriage.

AG v Brandon Books- obiter- convo between husband and wife privileged

Murray v Ireland
within con rights on marriage entailed other con rights like co-habitation

P v GOM
Seeking to broaden scope of nullity to include misprepresentation

Held: If it were to broaden scope of nullity it would breach institution of marriage

Question 18

Discrimination in Favour of The Marital Family

Answer 18

O’B v S

Facts: Concerned a provision of the Succession Act 1965 which prevented a non-marital child from inheriting property where her father has not made a will.Argued that this was unconstitutional.

Held: The argument was rejected. The courts took the view that the constitution itself authorised the state to draw a distinction between the marital and non-marital family to protect the institution of marriage and that meant the Oireachtas had the power to implement legislation that supported that idea

Question 19

Constitutionality of Support For The Non-Marital Family:

Answer 19

Nicolaou v An Bord Uchtala

Held: Henchy J indicated that the duty of the state to protect the institution of marriage against attack only obliges the state to ward off any direct attacks.
If there is legislation that offers support to non-marital families that does not have any effect on marital families, it wouldn’t be unconstitutional.

Question 20

The marital family

Answer 20

The constitution does distinguish between marital and non-marital families.

Question 21

Distinction between non-marital and marital families
State the cases.

Answer 21

Nicolau v An Bord Uchtala
Facts: The plaintiff had a relationship with a woman in England and they had a baby, she came to Ireland and gave the child up for adoption. The plaintiff opposed this and discovered that the adoption board took no input from the father to consent to the adoption. Argued that this was an infringement of his rights as a family member under Articles 41 and 42.

Held: Argument rejected by both the HC and SC.
SC: Walsh J held that it was clear that the ‘family’ referred to in Article 41.3.1 only concerned married couples.

Ennis v Butterly

Held: Kenny J stated that Article 41 reinforced the common law policy that co-habitation agreements were unenforceable.

McE v OS
natural father could not be compelled to pay maintenance to the natural mother and child born out of wedlock.

McD v L
Held: Kenny J and Denham J rejected the argument that Irish law recognised the concept of a default unmarried family.

Gorry v Minister for Justice
Gorry v Minister for Justice 2020

Held: O’Donnell CJ seemed to be suggesting that the distinction between the marital and non-marital family was not as strict and rigid as one might think.
Noted that apart from Article 41.3, the other provisions of Articles 41 and 42 did not differentiate between the marital status of the couple involved for the family status.
This opened the possibility that the courts may switch to a view that’s not rigidly differentiating between unmarried and married couples

Criticism: The noun ‘family’ is used as a proper noun in Articles 41 and 42 and it is also used as a proper noun in Article 41.3. As a result, one can infer that if you use the same proper noun in different articles, the meaning of that word remains the same.

Question 22

Grandparents

Answer 22

A&B v EHB
Gaigan J held that grandparents had no constitutional rights with respect to their grandchildren.

Olenzcuck v minister for jusctice

took a similar approach as in A&B. The ‘family’ referred to in Article 41 was the family of a father and mother, with or without children.

Caldaras v Minister for justice

O’Sullivan J took the view that grandparents did not come within the meaning of family for the purposes of the Immigration Act 1999.

RX v Min for justice
Facts: Concerned a family looking for residency rights in Ireland and an application for family reunification. The daughter was residing in Ireland and wanted to bring her parents to reside with her.

Held: Hogan J declined to follow Caldaras, you couldn’t always exclude grandparents and siblings from the definition of family for the purpose of Article 41
In some circumstances, grandparents would come into the scope under the protection of Article 41 if there was a high level of dependence of the grandparents on their children and grandchildren.
Hogan grants her permission to bring in these proceedings: a decision for a child to emotionally or physically support her parents at an older age was constitutionally protected.

M v Min for justice

Edwards J stated that for grandparents to invoke Article 41 of the constitution, they would have to show evidence of dependency on their children- can be financial, physical or emotional.

AMS v min for justice

Clarke J rejects Hogan’s approach in the RX case. Stated that protections of Article 41 are only confined to married parents and their children

esme v Minister for justice

Held: Charleton J in the SC accepted AMS and stated that such guarantees that are provided in the constitution are to the mother, father and children

Question 23

Families With Pre-Marital Children

Answer 23

Re J
SC made it clear that Article 41 applied to the family and that included the children who were born before the couple were married.

Question 24

Orphans

Answer 24

G v An Bord Uchtala
Held: Obiter-Walsh J indicated that orphaned children were still members of a family for the policies and protections of the Constitution.

Question 25

Childless couples

Answer 25

Murray v Ireland

Held: Costello J took the view that married couples with no children are entitled to the same protections as married couples with children.

Question 26

Surrogacy

Answer 26

MR v ATC
Facts: The wife’s sister volunteered to carry the pregnancy for her sister who couldn’t give birth.

Issue: Who was the mother of the child?

Held: Abbott J in the HC took the view that the common law rule of the person who gave birth being the mother didnt apply for surrogacy situations. The donor for the genetic material was to be regarded by the law as the mother of the child, ie. The wife

SC: On appeal, the majority of the SC took the view that Abbott J referred to the constitution as precluding the application of the common law rule, but it was in fact a statutory decision. Took the view that for the purposes of the 2004 Act, the birth mother was to be regarded as the mother of the child, ie. The sister.

Question 27

Inalienable and Imprescriptible Rights

Answer 27

Ryan v AG
Kenny J stated the definitions of inalienable and imprescriptible rights:
Inalienable- Rights that cannot be transferred or given away- rights that cannot be surrendered
Imprescriptible- Rights that are not lost with the passage of time/ abandoned by in-exercise. You do not lose these rights if you haven’t exercised the rights over a long period of time

Fajujonu v Min for justice
Familial rights are inalienable and impresctiptable.