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IT’S REFERENDUM EVE.
On Friday, voters will decide on two proposed amendments to the Constitution in votes that are being dubbed the Family referendum and the Care referendum.
The former, the 39th Amendment, will provide for a wider concept of family if it passes. The 40th Amendment will remove wording about the role of women in the home and insert a new wording about care.
Last month, The Journal looked at a number of false claims circulating about the possible impact of both amendments if they passed.
Several more claims have spread in the weeks since, with media debates and campaigns for the Yes and No sides in both referendums now in full swing.
Ahead of Friday’s votes, here are the main narratives we’ve spotted in the last few weeks.
As we explained last month and outlined in further detail in a subsequent newsletter, many of the claims circulating around the referendums are difficult to fact-check because they are based on conjecture more than on things that are measurably true or false.
It is normal during referendum campaigns for both Yes and No sides to reflect on the historic impact of Articles in the Constitution or to warn about what could happen if they are changed.
But certain referendum campaigns are complicated because it can be impossible to know how changes could be interpreted by a judge during a challenge in the Supreme Court, which can give rise to scaremongering and political spin by advocates on either side.
Some have suggested during the current campaigns that future predictions that are based on the outcome of referendums are misinformation.
However, this is not the case: they are merely opinions or academic interpretations.
Legal scholars and historians dedicate decades of their careers to making arguments about the impact of Irish laws and aspects of our Constitution, and it is not the role of fact-checkers to analyse claims like this for which the truth is not measurable.
For the purposes of this article, the misinformation we have identified refers specifically to measurable falsehoods that have been made about the referendums, the impact of a vote either way being carried, or anything else about the campaigns themselves.
A front-page newspaper headline suggested this week that Social Protection Minister Heather Humphreys said carers will get more money if the Care referendum passes.
The headline, published on the front of Tuesday’s Irish Independent, stated: “More payments for carers if Yes wins, says Humphreys”.
However, as a bullet point beneath the headline notes, the Minister only said that she would be able to “push for more supports for carers in the Budget” if the referendum passes – rather than it being a given that carers would get more supports.
They payments themselves do not necessarily hinge on a Yes vote in the referendum.
In the event of a Yes vote, Humphreys could theoretically push for more payments in the Budget but not actually get them; likewise, she could also push for expanded payments for carers in the event of a No vote and succeed in getting them.
On Tuesday evening’s Prime Time debate, former barrister Maria Steen and Tánaiste Micheál Martin disagreed over the constitutional recognition of single-parent families.
The Family referendum would widen the constitutional definition of family to one that is not just based on marriage, as is currently the case, but on “durable relationships” (a vaguely defined term that refers to non-marital relationships between two adults).
It has been argued that widening the definition of family in this way would give recognition to families where both parents are not married or where there is just one parent.
During Tuesday’s debate, Steen claimed that the Constitution already recognises single-parent families.
When host Sarah McInerney put it to her that single-parent families are not currently recognised as families under the Constitution, Steen said that “a parent and child is recognised as a family in all of our laws”.
McInerney then asked whether this was the case in the Constitution, to which Steen replied: “Yes. But in the Constitution the relationship between parent and child is recognised as family.”
When this was put to Martin a few seconds later, he disagreed: “No they’re not. They’re not recognised as a family.”
Who is correct – or is this a case of legal debate?
The constitutional recognition of the family is currently set out in Section 41 of the Constitution.
However, this only states that the family unit is “founded” on marriage (which the proposed amendment is seeking to change); at no point in Section 41 is there any reference to the relationship between parents and children as a family.
In fact, there is nothing in the Constitution that explicitly recognises parents and children as a family.
Section 42A, which contains provisions for children, does reference the relationship between parents and children, but only does so in relation to what might happen where parents fail in their duties towards their children.
Asked to clarify her comments, Steen directed The Journal to previous court rulings which have expressed a view that non-marital children have the same rights as children born to married parents based on the Constitution.
These were M [1946] IR 334, Nicolaou v. An Bord Uchtála [1966] IR 567, Gorry v. Minister for Justice and Equality [2020] IESC 55, and O’Meara v. Minister for Social Protection [2024] IESC 1.
This takes one approach to the meaning of the phrase “in the Constitution”, relying on how Ireland’s courts have interpreted Constitutional rights.
The Journal also asked two experts about the claim that the Constitution recognises parents and children as a family.
Family law expert Dr Maebh Harding of University College Dublin said that although relationships between parents and children are legally recognised in family law, they do not have a constitutional basis.
“It is not recognised under Article 41 as the basis of a constitutional family; we don’t value these relationships as family within the constitution unless the parents are married,” she said.
Harding noted that while Article 42 talks about the rights of parents to educate their children, this does not recognise the link between a parent and child as creating a family.
She also said that Article 42A talks about parents’ duties to their children regardless of their marital status, but that this likewise “does not recognise the link between parent and child as creating a family unit that is morally valued by the state”.
“The Constitution as it stands does not recognise the parent child link as creating a family relationship that is valued by the state under the constitution,” she added.
Dr Deirdre McGowan of the Technological University of Dublin also said that the Constitution only currently recognises families that are based on marriage.
“The only family recognised as a ‘Family’ for the purposes of Article 41 is the family based on marriage,” she said.
“So if the child’s parents are married, then they are recognised as a family.”
Other claims have suggested that a Yes vote in the Family referendum would result in an income tax increase for married couples.
Last week, the far-right Irish Freedom Party claimed that “If you vote Yes, you are voting Yes to a tax hike”.
“Since the term ‘durable relationship’ is so vague, extending these tax benefits to all such couples would be prohibitively expensive, and so the government will do what most EU countries have done, and abolish them,” the party wrote on social media last week.
People in Ireland who are married or in a civil partnership currently have the option of sharing tax credits and tax bands, which can reduce the amount of tax the couple has to pay.
But at no point has the Government said it will increase taxes or remove benefits for married couples if the Family referendum passes.
It is theoretically possible that this could happen, but there is no basis for the claim that a Yes vote means ” yes to a tax hike”, particularly because the referendum does not even deal with the definition of marriage.
If it passes, the referendum will change the definition of family to one that is not just based on marriage – it will not change the definition of marriage.
One of the more common claims about the term ‘durable relationship’ suggests that a person can be deemed to be in a durable relationship with anyone who sends them a Christmas card.
Versions of this claim vary from suggestions that the Electoral Commission said that a Christmas card addressed to two people could be enough to define them as a “durable” couple, or that a person could end up in a relationship without their consent if someone sends them a Christmas card.
These claims are based on a statement by the chair of the Electoral Commission Ms Justice Marie Baker at a press conference at the end of January, when she was asked about the definition of a durable relationship.
At the time, she is reported to have said: “Subjectively, a relationship is durable, if committed, if it presents itself as committed, if it means to be committed, if it intends to be committed.
“Its durability can sometimes be how you are treated by other people. Are you are you invited as a couple to weddings? Do people send Christmas cards to both of you? These are the indicators of your commitment to each other.”
However, the Electoral Commission has since clarified that the judge did not mean that receiving a Christmas card would not be the sole definition of a ‘durable relationship’.
In a statement to The Journal, a spokesperson for the Electoral Commission said that ‘durable relationships’ would be defined on various factors.
“Objective and subjective factors could provide some guidance as to the meaning of “the Family founded on other durable relationships” if that phrase was to be inserted into the Constitution,” a spokesperson said.
“One such factor could be that two cohabitants present themselves to others as a couple and are therefore likely to receive wedding invitations and Christmas cards.
“This would be just one factor, among many others, that could be involved in order to establish that the couple were in a durable relationship.”
The spokesperson also dismissed the claim that a person could end up in a durable relationship without their consent.
“It would not be possible for one member of the couple to be in a durable relationship without that person’s consent,” they said.
“This is because a non-consensual relationship would not involve the other factors [..] which may be indicative of the existence of a “durable relationship”.
“In addition, any non-consensual relationship would likely be regarded in law as unenforceable as being contrary to public policy.”
Some people have also alleged that the Government is holding the Care referendum with the intention of neutralising a Supreme Court case being brought by a mother caring for her son.
Among those to make the claim is Independent Senator Michael McDowell, who is advocating for a No vote, and who said in February that the Government “has rushed the amendments through the Oireachtas to delete Article 41.2 in advance of the Supreme Court hearing of the BM and JM case on 11 April”.
The case relies on Article 41.2 of the Constitution which refers to a woman’s “life within the home” – wording that will be removed and replaced if the Care referendum passes.
The woman, whose son has Down’s Syndrome and who is unable to work because she is caring for him, is hoping to achieve a full rate of carer’s allowance because she only received a reduced rate as a result of means testing of her partner’s income.
The Supreme Court gave the woman leave to take the case in November, after judges said it raised issues of systemic importance for the carers of severely disabled children.
The case will be heard in April and its proximity to the Care referendum has led to claims like McDowell’s that the Government rushed through the vote in the hope that Article 41.2 will be removed by the time of the hearing.
But the timing is just a coincidence. The idea to hold a referendum to remove Article 41.2 has been a long time in the making and significantly pre-dates the Supreme Court case.
The proposal follows recommendations by a Constitutional Convention a decade ago and the subsequent Citizens’ Assembly on Gender Equality, which was held between 2020 and 2021.
When listing its final recommendations, the Citizens’ Assembly specifically said that Article 41.2 of the Constitution “should be deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community”.
The Programme for Government then committed to holding a referendum on Article 41.2 when it was published four years ago.
Even if the referendum passes, the Supreme Court hearing will go ahead. Professor David Kenny of Trinity College Law School has also said that the deletion of Article 41.2 would be unlikely to impact the outcome of the case either way.
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