5 May 2004
Dr. Henry: I move:
That Seanad Éireann calls on the Government to furnish the House with a report of progress to date and future plans aimed at securing the full compatibility of Irish family law with Article 8 of the European Convention on Human Rights, with particular reference to the Convention rights of non-marital and one-parent families.
I apologise for being unable to agree to the proposal that the previous debate be allowed to continue for a further 15 minutes, but the seconder of this motion will have to leave almost immediately. I am surprised that the Government has tabled an amendment, which is almost the same as the motion itself. I sought to word the motion in a non-contentious manner, as I usually do. My motion does not seek to undermine Article 41.3.1° of the Constitution, in which the State "pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack". Anyone who reads the consultation paper on the rights and duties of co-habitees, published last week by the Law Reform Commission, will see that it states exactly the same. The consultation paper does not apply to couples if one of them is married.
The recent enactment of the European Convention on Human Rights Act 2003 has cast a spotlight on many aspects of Irish law, most particularly on our laws concerning family life. The Act somewhat belatedly incorporates the provisions of the European convention into Irish domestic law. The Act broadly requires Irish domestic law to comply with the provisions of the convention. If a provision of Irish law infringes the convention, it is open to a court to make a declaration of incompatibility with the convention.
Article 8 of the convention requires the contracting states to respect the private and family life of all persons, among other issues. In interpreting the scope of the rights protected by Article 8, the European Court of Human Rights has taken a broad and generally inclusive view of the concept of family life. The court has consistently ruled that Article 8 concerns not only the traditional family, based on marriage, but extends its protective scope to families that do not fit this classical mould.
I wish to declare an interest by stating that I have been the president of Cherish, which is now known as One Family, for many years. The organisation provides support to single women with children. Many one-parent families have emerged as a consequence of divorce and separation, etc. I have a special interest in this area.
The case law of the European Court of Human Rights has established, for example, that for the purposes of the convention, the term "family" includes a non-marital cohabiting couple, particularly if the couple has children, as well as a one-parent family, regardless of whether it is based on marriage. The court has also affirmed that a non-custodial parent and his or her child may enjoy a legally protected family life for the purposes of the convention.
I wish to compare this stance with the position in Irish law. In stark contrast to the position of the European Convention on Human Rights, for most purposes, Irish law recognises only the family based on marriage. Family units not founded on matrimony enjoy next to no rights with fewer obligations towards their members. A couple cohabiting outside of marriage are deemed for most legal purposes to be strangers before the law, being no more obliged to each other than flat mates. While the position of the non-marital child has been greatly ameliorated by the Status of Children Act 1987, the position of each parent vis-à-vis the other parent of that child is unenviable. No matter how profound or lengthy their relationship or how stable their family, the law still regards both the non-marital mother and father as legal strangers.
Cohabiting couples are subject to none of the extensive rights and obligations of married couples. Take for instance the example of a woman living with a man who is not her husband. The woman becomes pregnant and decides to take time off to rear her family. Working as homemaker, she cares for her child and partner for several years. Several years later she has another child with the same man and decides to stay at home again to care for her children. If her partner were to leave her, the woman, despite her considerable effort and sacrifice, would not be entitled to a single cent of maintenance from her partner while her children would. Even if he has promised solemnly to maintain her through thick and thin, such promises are legally unenforceable as maintenance agreements between cohabiting couples are not legally recognised in this State.
Without making financial contributions towards its purchase, she will have no claim over the property of her partner should their relationship founder. In particular, the provisions of the Family Home Protection Act 1976 do not apply when the parties are not married. The home, therefore, in which she and her children reside could be sold from under her without her knowledge, let alone her consent. Many people who are cohabiting do not realise that the notion of common law husband or wife is an urban myth.
If her partner were to die without making a valid will, moreover, she would not be entitled to any portion of his estate, regardless of the length or the profundity of her relationship with the deceased. The Succession Act 1965 entitles the spouse of a deceased person to the majority of his or her estate, if a valid will was not made. Even if the wife was disinherited by a written will, she would still by law be entitled to override it, taking one third of the estate if the couple have children and a half if they do not. By contrast, where a non-marital cohabiting partner dies without making a will, his surviving partner is left high and dry as she is not entitled to any portion of the deceased's estate. There is moreover, no provision in law to remedy the situation where a deceased person excludes a non-marital partner from his will.
Ironically, these legal deficiencies are most glaring when legal protection is arguably most necessary. If a woman's non-marital partner were to be hospitalised in circumstances where he was unable to make decisions for himself, she would not be permitted to make such decisions on his behalf without an iron cast power of attorney. She may, therefore, find herself excluded from crucial decisions pertaining to her loved one's health, such as where a partner is unconscious and on a life-support machine. It is also worth noting that a 50 year old woman in an intimate relationship for some years may find that next-of-kin for legal purposes will be her parents or a sibling.
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Dr. Henry: I am profoundly grateful to all the Senators who contributed in such a constructive manner on this debate. I am also grateful to the Minister of State for his remarks.
Let me cheer Members up. Marriage is still incredibly popular. The marriage rate in Ireland is approximately the same as it was in 1951. Far fewer people got married then because of poverty and other reasons. The outlook, as far as marriage is concerned, is cheerful. Most couples who can get married and who have a loving relationship with a companion look on marriage as a gold standard.
The Constitution does not propose something unnatural but something the majority of people seem to want eventually. While it is true that 90,000 family units are headed by single persons, 85% of whom are women, many of those single parents were already married and are either separated or divorced. Senator White is right that the children of such institutions must be carefully nurtured. This is very important. Approximately one third of the children born in this country are born outside marriage but about two thirds of those children are born to people in stable relationships. Many of those eventually marry which is what most of them want.
7 o'clock
My reason for asking the Minister to address this issue — I was pleased with his reply — is to ensure greater stability in society, not less. People have obligations as well as rights. We must suggest to them that despite the fact that they have not made legal and, in some cases, religious promises to each other, they have the responsibilities of the companionship they may have had, as mentioned by Senator Mansergh also. This is important.
I am delighted that this debate arose at the same time as the debate on the rights and duties of cohabitees or cohabitants. I will send Mr. Justice Budd a copy of this extremely useful debate and I hope the Law Reform Commission will find it useful in its deliberations before bringing forward its paper.
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