Law Reform Discussion: The Family Unit

MagicSean

I previously had a thread suggesting some discussion threads on law reform. I figured I'd start with a part of the Constitution which, in my view, is in need of big change.

The Family
Article 41
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
3. 1° 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.
2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that ¬
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the five years,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv. any further conditions prescribed by law are complied with.
3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.


So what changes or additions do you think should be made to this article of the constitution and why?

Procrastastudy

This is actually an area I have opened a book too it having been the Semester 2 ConLaw assignment for GCD.

I started out thinking it needed huge reforms but I have to admit I ended up with a different point of view.

You can argue separation of church and state but in my view people wishing to found a family should be held to a higher standard. I think the Constitution does a good job of that essentially saying, in my view, if you have children outside of a recognised stable relationship - the state will have a right to take a more active role in the upbringing of that child.

Where I think we fall down is not recognising a non-religious union and gay marriage. The issue though is where do we draw the line. If a referendum was to garner a no vote on gay marriage would the minority accept that? Do we need to just say any 'loving relationship' If we do that what about a polygamous relationship?

41.2 is an odd one - on the one hand it recognises the role of the parent - but its so outdated in its wording that perhaps it would be best to get rid of it completely or relegate it to Art 45 and reword it.

EDIT: Great idea BTW MagicSean

johnnyskeleton

MagicSean wrote: »

I previously had a thread suggesting some discussion threads on law reform. I figured I'd start with a part of the Constitution which, in my view, is in need of big change.

The Family
Article 41
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
3. 1° 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.
2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that ¬
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the five years,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv. any further conditions prescribed by law are complied with.
3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.


So what changes or additions do you think should be made to this article of the constitution and why?

Aren't you supposed to set out what changes you would make first?

Anyway:

1) remove references to the woman's place being in the home. This belongs in the last century and doesn't fit in with the modern world at all. Perhaps a gender neutral provision would be more modern, but still, I can't really see any measure that a government would take that could "force" a parent out of the home other than e.g. reducing welfare, but then again I don't think it should be in the constitution that people are guaranteed a free ride once they become a parent.

2) put in a section that says that if there is a conflict between the interests of the child and the interests of the family, the rights of the child are paramount. I don't like the childrens referendum because it gives far more power to the state than people are aware of and the above principle enshrined in art 41 would prevent the occasional bad decision e.g. the baby anne case.

3) divorce should be permitted where the spouses are living apart, there is no reasonable prospect of reconciliation and proper provision has been made. Waiting 4 years for a divorce was only put in to swing the election

4) 41.3 should say that nothing in that subarticle permits the discrimination or other disparity of treatment between the married family, the de facto family or any other familial relationship - I think that the Supreme Court's interpretation of the rights of de facto families is wrong, but they think they are right, so while I don't think this has to be an express provision in the constitution, the Supreme Court clearly require it before we can move on.

Points 1, 3 and 4 are not legal points but rather political issues though.

Ken.

Fathers should have automatic gaurdianship and rights to their children.

MagicSean

I think the article needs to be prioritised

41.1 Childs rights
41.2 Family unit
41.3 Sanctity of marriage

There should be a clear seperation between the protection of marriage and the family unit to take account of current societal norms.

The part about the woman in the home should be removed completely.

johnnyskeleton

ken wrote: »

Fathers should have automatic gaurdianship and rights to their children.

Automatic? So when the child is born the nearest male adult is automatically the guardian or how does it work?

Also, rights to their children? Jesus, it's the children who have rights to the father surely, and if the father is not good for them then he doesn't get any rights to the children?

Ken.

johnnyskeleton wrote: »

Automatic? So when the child is born the nearest male adult is automatically the guardian or how does it work?

Also, rights to their children? Jesus, it's the children who have rights to the father surely, and if the father is not good for them then he doesn't get any rights to the children?

No matter what they are their still the father of the child the same as a drug addicted alcoholic mother is still a mother.
Also I said the father of the child not just some random dude.

johnnyskeleton

ken wrote: »

johnnyskeleton wrote: »

Automatic? So when the child is born the nearest male adult is automatically the guardian or how does it work?

Also, rights to their children? Jesus, it's the children who have rights to the father surely, and if the father is not good for them then he doesn't get any rights to the children?

No matter what they are their still the father of the child the same as a drug addicted alcoholic mother is still a mother.
Also I said the father of the child not just some random dude.

But how do you know? Because he says it it must be true? There really has to be a court application or some other process otherwise it's just crazy.

And yes, they are the father but if they are not good for the child they shouldn't be a guardian. Nor should the mother either.

Ken.

johnnyskeleton wrote: »

But how do you know? Because he says it it must be true? There really has to be a court application or some other process otherwise it's just crazy.

And yes, they are the father but if they are not good for the child they shouldn't be a guardian. Nor should the mother either.

I agree 100% with you on this.

WhyGoBald

johnnyskeleton wrote: »

1) remove references to the woman's place being in the home. This belongs in the last century and doesn't fit in with the modern world at all. Perhaps a gender neutral provision would be more modern, but still, I can't really see any measure that a government would take that could "force" a parent out of the home other than e.g. reducing welfare, but then again I don't think it should be in the constitution that people are guaranteed a free ride once they become a parent.

I don't actually have any theoretical objection to this article, though as you say it could do with being gender neutral. I think the idea was simply to state the principle that economic policy should be shaped to allow households to have a parent at home.

2) put in a section that says that if there is a conflict between the interests of the child and the interests of the family, the rights of the child are paramount. I don't like the childrens referendum because it gives far more power to the state than people are aware of and the above principle enshrined in art 41 would prevent the occasional bad decision e.g. the baby anne case.

Very good point. Given the way in which the state interfered in the family and abused its trust when children were in its care, do we want to take away the protection against this abuse that currently exists? It's not as if children in state care are well cared for at present.

seb65

ken wrote: »

Fathers should have automatic gaurdianship and rights to their children.

Define father.

Keep it the same, but put in a provision for same-sex marriage. The constitution does not define marriage as between one man and one woman, judges did that. It could be inserted that the family is founded by the marriage of two humans. This would circumvent those who suggest that gay marriage would be the start down the slippery slope towards us marrying goats, old gym socks and the like.

The woman in the home article has no real effect. Women all over Ireland are forced, due to economic circumstances, to work outside of the home. The provision only really benefits women as it forces the government to provide children's allowance. I'd bet you will not get even many liberal women voting for its removal.

Children's rights are tough. There have been some awful cases of abuse - continued even when the authorities knew about it - because the rights of parents are so strong under the constitution. However, from some stories I've read in the news, certain social workers have seen their jobs as 9-5. Also, the number of children that have died in state care? I wouldn't give the government my goldfish to take care of at the moment.

krd

johnnyskeleton wrote: »

1) remove references to the woman's place being in the home. This belongs in the last century and doesn't fit in with the modern world at all. Perhaps a gender neutral provision would be more modern,

It refers to the woman in the context of The Family. The article does not explicitly state what constitutes a family. I could be explicit in terms of what they meant by family - As at the time there was only one kind of family allowed in the country. Husband; male, wife; female.

Defining marriage and The Family, to take into account all formations of the family would be interesting. Apart from recognising gay/lesbian families, families where the parents are unmarried, and even relationships where both partners are not parents. Do yah see the swamp you could be walking into.

but still, I can't really see any measure that a government would take that could "force" a parent out of the home other than e.g. reducing welfare,

Cutting maternity leave to American levels.

but then again I don't think it should be in the constitution that people are guaranteed a free ride once they become a parent.

I assume you've had your share of child raising so you'll have people to support you in your old age - or were you fancying taking a free ride.

2) put in a section that says that if there is a conflict between the interests of the child and the interests of the family, the rights of the child are paramount.

I don't like the childrens referendum because it gives far more power to the state than people are aware of and the above principle enshrined in art 41 would prevent the occasional bad decision e.g. the baby anne case.

That will always be problematic. In 1950s Ireland, a parish priest could and would deem what a family was. If you weren't taking your children to mass they could be taken into care. If a parent died, say the mother, the father could and would be forced to hand their children either over to the institutions or to a family member who still had a family (back to just one type of family allowed).

If the rights of the child are given priority, then since the child is a minor, the person who would act on their behalf would be a civil servant.

Historically, it's unlikely the clock will be rolled back. You don't want the wrong kind of things enshrined in the constitution.

I know there are people in England, who believe the demand for adoption should be served by taking more babies from young women - deemed unfit to be mothers. At the minute it's a tiny number of babies taken from mothers in the UK. But if they wanted to, they could up the number into the thousands - though they might find themselves fighting endless legal battles.

3) divorce should be permitted where the spouses are living apart, there is no reasonable prospect of reconciliation and proper provision has been made. Waiting 4 years for a divorce was only put in to swing the election

Do you mean divorce on demand?

seb65

krd wrote: »

I know there are people in England, who believe the demand for adoption should be served by taking more babies from young women - deemed unfit to be mothers. At the minute it's a tiny number of babies taken from mothers in the UK. But if they wanted to, they could up the number into the thousands - though they might find themselves fighting endless legal battles.

Ah, for once Ireland is ahead of England, having sold Irish babies born to unwed mothers to childless Americans. Of course, the Catholic church and the nuns who ran these homes waited until the babies were three to rip them from their mothers arms. They got more money out of the state and more work out of the women this way.

johnnyskeleton

krd wrote: »

Do you mean divorce on demand?

Well divorce upon satisfaction that the marriage has irretrievably broken down, yes. If the legislature wishes to impose a condition that divorce is available after 4 years, or 1 year, or after a day, or any other means of proving that they will not get back together then they should be allowed to make that choice but we shouldn't be stuck with an arbitrary 4 year period in our constitution.

I assume you've had your share of child raising so you'll have people to support you in your old age - or were you fancying taking a free ride.

Again, I'm not for a minute suggesting that we cut child benefit, but it should be a matter for the Oireachtas and if the effect of the subarticle is to mandate all future governments to provide social welfare to a certain class of persons then I think it should be removed. What if the country is completely broke? What if they means test child benefit and someone decides that this breaches their constitutional rights and brings a challenge? Surely these are things that the Oireachtas should decide, not fundamental rights that need the protection of the constitution?

MagicSean

johnnyskeleton wrote: »

Well divorce upon satisfaction that the marriage has irretrievably broken down, yes. If the legislature wishes to impose a condition that divorce is available after 4 years, or 1 year, or after a day, or any other means of proving that they will not get back together then they should be allowed to make that choice but we shouldn't be stuck with an arbitrary 4 year period in our constitution.

I think marriage should be harder to get into rather than easier to get out of.

usernamegoes

Why shouldn't people be allowed get a divorce for whatever reason they want whenever they want? I don't understand.

Procrastastudy

usernamegoes wrote: »

Why shouldn't people be allowed get a divorce for whatever reason they want whenever they want? I don't understand.

Because the majority of people get married to have children. The barrier probably does need moving though as MagicSean suggests. I'm not sure I'd like to see it removed completely in regards to divorce but certainly a more balanced approach would be welcome.

Also like it or not Ireland bases it's laws on Christian values - predominately Catholic values. There is nothing to stop this being changed - the will of the majority doesn't seem to be there yet.

Frankly people need to be made to think twice before popping out sprogs left right an centre. I'm personally in favour of 1 person 1 kid approach - if you have two children in a marriage that breaks down - sorry you've had your 'shot'. Unless your new partner hasn't had any the state should not be supporting sprog number 3.

MagicSean

usernamegoes wrote: »

Why shouldn't people be allowed get a divorce for whatever reason they want whenever they want? I don't understand.

Because it often results in a legal mess and can be damaging to the children.

For a wedding you need to sign a bit of paper. For a divorce you often have to go through the courts. If you reversed the difficulty of each process you would likely find less people entering frivolous marriages and less people looking for a divorce as a result. As it stands, for those of us who aren't religious the union of marriage is nothing but a process way to obtain more rights for our children and get some tax incentives. Hardly protecting the institute is it?

seb65

MagicSean wrote: »

Because it often results in a legal mess and can be damaging to the children.

For a wedding you need to sign a bit of paper. For a divorce you often have to go through the courts. If you reversed the difficulty of each process you would likely find less people entering frivolous marriages and less people looking for a divorce as a result. As it stands, for those of us who aren't religious the union of marriage is nothing but a process way to obtain more rights for our children and get some tax incentives. Hardly protecting the institute is it?

Sorry, my marriage was not in the church. What exactly are you saying? That mine is less genuine? I completely disagree that my marriage was to obtain more rights for my hypothetical children, or to get tax incentives. It was about making a commitment to share my life with someone else. How insulting.

Also, I'd like the state to have very little control over the rights of people to marry. That's all you need is that lot in the Dail to start legislating for that, they couldn't run a hamster on a wheel for pete's sakes. You already have to wait for three months for a marriage license in Ireland. I'd say that's restriction enough.

krd

johnnyskeleton wrote: »

Again, I'm not for a minute suggesting that we cut child benefit, but it should be a matter for the Oireachtas

It's a brainwave they picked up from England. The Tories are considering means testing child benefit.

and if the effect of the subarticle is to mandate all future governments to provide social welfare to a certain class of persons then I think it should be removed.

It is worth mandating where the priorities should be. Otherwise the money would just be splurged on rent seeking social elites.

What if the country is completely broke?

The country is completely broke.

What if they means test child benefit and someone decides that this breaches their constitutional rights and brings a challenge?

They may try that.

Surely these are things that the Oireachtas should decide, not fundamental rights that need the protection of the constitution?

The whole idea of a constitution is precisely to stop groups like the Oireachtas deciding which fundamental rights, and whose fundamental rights need protection, on the fly.

The members of the Oireachtas are on a completely different planet to me and most of the rest of the country.

Back in the 50s the whole concept of the protection of the family was so warped that they tore any family apart that didn't fit the limits of what was deemed acceptable. My fathers mother died, and my grandfather was given the choice of either take on a live in house keeper, or his children would be taken from him and placed in an industrial school. He was able to afford a housekeeper. Other people lost their children. This is what happens when you allow a narrow group of very narrow minded people decide how everyone else should and can live.

krd

Procrastastudy wrote: »

Because the majority of people get married to have children.

No, there's a whole host of reasons to get married. Many are economic and social and have little or nothing to do with having children.

Getting married shows you're a conservative. A safe pair of hands.


Marriage in Ireland is like joining the communist party.

Procrastastudy

krd wrote: »

No, there's a whole host of reasons to get married. Many are economic and social and have little or nothing to do with having children.

Getting married shows you're a conservative. A safe pair of hands.


Marriage in Ireland is like joining the communist party.

Statistically the proportion of people getting married that have children hasn't changed much in the last 100 years - it peaked (in the 70's I believe) but the majority still have kids.

krd

Procrastastudy wrote: »

Statistically the proportion of people getting married that have children hasn't changed much in the last 100 years - it peaked (in the 70's I believe) but the majority still have kids.

You're using one of those post hoc ergo propter hoc arguments. Usually, in humanities courses at university, students are given a quick critical thinking module - where they're hopefully trained to recognise arguments that employ known fallacies as a basis for their reasoning. I have my suspicion, solicitors are training in how to use them.

This is not all a bad thing. If I ever end up before the beak, I will certainly hope my counsel will deploy the Chewbacca defence.

Marriage is a cultural, as well as a legal institution.

Procrastastudy

Closest I got to a humanities course at University was shagging someone doing sociology.

johnnyskeleton

krd wrote: »

Procrastastudy wrote: »

Statistically the proportion of people getting married that have children hasn't changed much in the last 100 years - it peaked (in the 70's I believe) but the majority still have kids.

You're using one of those post hoc ergo propter hoc arguments. Usually, in humanities courses at university, students are given a quick critical thinking module - where they're hopefully trained to recognise arguments that employ known fallacies as a basis for their reasoning. I have my suspicion, solicitors are training in how to use them.

do you not mean confirmation bias ie because it has been thus for a long period of time it will continue to be thus?

Payton

Way to easy to get married on Ireland, maybe that should be looked at. E.g get married at 16 yrs of age, but yet you cant buy an alcoholic drink at your wedding, or buy tobacco?? But your "responsible" to start a family!!
Remove the church from the whole family law, its like oil and water.

krd

johnnyskeleton wrote: »

do you not mean confirmation bias ie because it has been thus for a long period of time it will continue to be thus?

Fallacies, logical and otherwise. There's a really long list on wikipedia http://en.wikipedia.org/wiki/List_of_fallacies

To say it will be ever thus, is a little pessimistic.

Biases can have a social and cultural basis. People can have the strangest ideas about the world and people.

And this is a reason constitutions are very useful. The more neutral and straight forward the better.

It's funny how stupid people can be. Like it was the Catholic church who lobbied for a ban on religious advertising - they didn't believe it would apply to them, which it does.

Manach

In my historian's/legal opinion I'm fine with the definition present as it in the Constitution, I'd be supportive an amendment to support the Judeo-Christain idea of a marriage as a between one man and one women, anything else is out there with the type of Jacobian radicalism where society was to be fitted into an ideological mold to fit a grand design though up by ivory-tower theorists.

johnnyskeleton

Manach wrote: »

In my historian's/legal opinion I'm fine with the definition present as it in the Constitution, I'd be supportive an amendment to support the Judeo-Christain idea of a marriage as a between one man and one women, anything else is out there with the type of Jacobian radicalism where society was to be fitted into an ideological mold to fit a grand design though up by ivory-tower theorists.

No it's not. Very real very long term couples can find that because they are not married they are not considered a family and therefore do not get the full protection of the constitution.

I find it quite baffling that a couple who only discovered they don't like each other after marriage and have no kids or real affection for each other are more a family under Irish law than an atheist couple who do not believe in marriage who have lived together for 30 years and brought up several kids.

Assuming for a minute that atheist beliefs and Christian beliefs are of equal merit, why do we favour one over the other? Does believing in marriage as an institution as compared to, say, love, make one a better person or confer magical powers?

MagicSean

seb65 wrote: »

Sorry, my marriage was not in the church. What exactly are you saying? That mine is less genuine? I completely disagree that my marriage was to obtain more rights for my hypothetical children, or to get tax incentives. It was about making a commitment to share my life with someone else. How insulting.

Also, I'd like the state to have very little control over the rights of people to marry. That's all you need is that lot in the Dail to start legislating for that, they couldn't run a hamster on a wheel for pete's sakes. You already have to wait for three months for a marriage license in Ireland. I'd say that's restriction enough.

You can attach as much emotional significance to it as you want but I see no reason why your piece of paper called a marriage certificate should make you a more legitimate couple than myself and my partner as the only thing you had to do to get it was wait 3 months and sign a form.

If marriage was harder to access then maybe some of the people who rush into it might think twice before doing it. Less rushed marriages would surely equal less divorces and make the institute of marriage more meaningful would it not?

EDIT: I don't mean to suggest that your marriage isn't emotionally significant by the way.

Procrastastudy

MagicSean wrote: »

You can attach as much emotional significance to it as you want but I see no reason why your piece of paper called a marriage certificate should make you a more legitimate couple than myself and my partner as the only thing you had to do to get it was wait 3 months and sign a form.

If marriage was harder to access then maybe some of the people who rush into it might think twice before doing it. Less rushed marriages would surely equal less divorces and make the institute of marriage more meaningful would it not?

You would have to back the obstacles up with not allowing people to have children until 'joined' for want of a better term. It doesn't have to be a marriage but some form of formality needs to be addressed. I find the attitude of some people to their family very blasé.

Two young kids with one family who need love an affection and a father figure (not suggesting it's always the father in the wrong btw) but 'father' doesn't feel the love any more so sets up with another woman and has two more kids. To me thats fine if you're earning €150,000 and work a 20 hour week so you have time to spend with both families. Otherwise yes its fine to exit a relationship thats no working but having more children should not be an option. Perhaps people would then be better at picking the partner correctly first time?