IRISH CITIZENS WILL next week be asked to vote in two referendums to change the Constitution.
The votes, dubbed the Family Amendment and the Care Amendment, will take place on Friday 8 March.
As we move closer to that date, we’re taking a look at exactly what people are being asked to vote on and why. Many readers have sent in questions and we’re going to answer the most common ones here.
Both referendums relate to Article 41 of the Irish Constitution, they deal with the family unit and the provision of care. Let’s take a look at the Family Amendment first.
The so-called Family Amendment, the 39th Amendment to the Constitution, will be on white ballot paper next week. It deals with Article 41.1.1 and Article 41.3.1 of the Constitution, both of which relate to the family.
Article 41.1.1 notes: “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.”
Article 41.3.1 notes: “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.”
Dense wording aside, these articles say the family is the primary unit of Irish society and the State will protect it. However – and this is the crucial bit – the article currently only recognises families based on marriage.
Ireland has changed a lot since the Constitution came into effect in 1937 and many families are, obviously, not based on marriage – hence the call by some to update the wording.
What is the proposed change?
In this amendment there will be one vote for two proposed changes.
The first proposed change involves adding extra text to Article 41.1.1 and deleting part of Article 41.3.1.
The proposed new wording for Article 41.1.1 is that the State will recognise the family “whether founded on marriage or on other durable relationships”.
So, the addition is the line which states that a family can be founded on marriage or other “durable relationships”.
The proposed change to Article 41.3.1 is to delete the reference which states that the family is founded on marriage.
So the new wording would be: “The State pledges itself to guard with special care the institution of Marriage, and to protect it against attack.”
What is a durable relationship?
The most common question readers have asked us in the last few weeks centres on the phrase “durable relationships” and what exactly this means.
One reader summed up what a lot of people said in their emails: “The term ‘durable relationships’ is very vague. I wouldn’t feel comfortable voting for something which is so vague.”
So, what exactly is a durable relationship? In short, we don’t know. There is no exact definition.
Ultimately, it will likely fall to the courts to decide what type of relationship is, indeed, durable.
Dr Laura Cahillane, Associate Professor in the School of Law at University of Limerick, said that if this amendment is backed by the public, the Government will pass various pieces of legislation related to social welfare and other benefits, outlining “what forms of relationships that will cover”.
“Then it would be up to somebody to take a case to court arguing that their grouping, their family – which hasn’t been included under the Government definition of a family based on a durable relationship – should be included.
“They could take that case to court to argue that their form of family should be one that’s recognised as a family based on a durable relationship. Ultimately the court will be the one who will decide whether or not it is a family that’s recognised under the Constitution.”
What impact will this have on legislation?
Article 15.2 of the Constitution states that the Oireachtas – the Dáil and the Seanad – have the “sole and exclusive” power of making laws for the State, and Article 15.4.1 provides that the Oireachtas must not enact any law that is “repugnant” to any provision of the Constitution.
So, if the Family Amendment is passed and the Constitution is updated to protect families based on durable relationships, not just marriage, the Oireachtas will have to make sure Irish legislation is not at odds with this.
While we don’t know exactly how a durable relationship will be defined, current Irish and European legislation can provide some guidance.
The phrase “durable relationship” is found in the 2004 EU Citizens’ Rights Directive. In these guidelines, the European Commission states that people attempting to prove they are in a durable relationship “may be required to present documentary evidence”.
“The requirement of durability of the relationship must be assessed in the light of the objective of the Directive to maintain the unity of the family in a broad sense.
“National rules on durability of partnership can refer to a minimum amount of time as a criterion for whether a partnership can be considered as durable.
“However, in this case national rules would need to foresee that other relevant aspects (such as for example a joint mortgage to buy a home) are also taken into account.”
The Government may also pull from the European Convention of Human Rights when drawing up the relevant legislation. The ECHR covers the protection of “de facto families” as well as marital families.
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As set out by the Electoral Commission here, the Irish Government’s interpretation of durable relationships may not be the same as the EU Directive’s interpretation of the phrase. However, the Government may refer to case law related to the Directive when drawing up new legislation.
The concept of durable relationships is also similar to the concept of “qualified cohabitants” in Part 15 of the Cohabitants Act 2010.
For example, to qualify as a cohabiting couple under this current Irish law, a person must show they lived in “an intimate and committed” relationship with their partner. This includes proving the couple lived together for at least five years, or for two years if the couple have any dependent children.
Do durable relationships only cover romantic relationships?
No, a number of ministers have pointed out that a durable relationship does not have to be romantic in nature.
The term is expected to cover couples with or without children, single parents and their children, and also relationships involving a grandparent or other relative raising children.
Earlier this week, Justice Marie Baker, Chairperson of the Electoral Commission, told RTÉ’s Morning Ireland she doesn’t believe that friendships will be included in durable relationships.
“You’re not asking, ‘Am I close friends with this person for all my life?’ You’re asking whether my relationship with that person makes us a family unit. And I think it’s unusual for friends living together to regard themselves as a family unit.
“They might say these are my personal relationships. This is my private life, but I think it’s probably not your family life,” Baker said.
Speaking in the Dáil in January, Children and Equality Minister Roderic O’Gorman, whose department is overseeing the referendums, said durable relationships will not cover polyamorous relationships such as throuples.
However, he said durable relationships would not be defined as only arising between two people as this could have a negative impact on certain families.
We have a real concern with that in the situation where there is a one-parent family with more than one child or there is a cohabiting couple with children.
“We have always been clear that those family relationships have to be protected within what we are trying to propose here,” O’Gorman said.
As the Constitution currently only recognises families based on marriage, this amendment would also give constitutional rights to unmarried fathers for the first time.
“Currently under the Constitution, a non-married father has absolutely no rights whatsoever, ” Dr Laura Cahillane from University of Limerick noted.
“The unmarried mother does have rights, but they’re unenumerated rights, they are not rights that are written in the Constitution, they’re not as strongly protected as a married mother’s rights.
“But an unmarried father has no constitutional rights whatsoever. If the referendum passes, for the first time you will see unmarried fathers gaining constitutional rights.”
What happened in the John O’Meara case?
In January the Supreme Court ruled in favour of a man who was denied access to a widower’s pension because he was not married to his late partner.
John O’Meara and Michelle Batey were a couple for 20 years, they lived together and had three children but never married. When Michelle died in 2021, John was told he was not entitled to the widower’s pension because they weren’t married.
John and his three children took legal action via Free Legal Advice Centres (Flac), arguing that sections of the 2005 Social Welfare Consolidation Act amounted to discrimination.
In October 2022, the High Court ruled that John was not, in fact, entitled to the pension. However, he appealed the case to the Supreme Court and the seven-judge court ruled unanimously in his favour, saying he should have been given the pension.
The judgment in this particular case was eagerly awaited as thousands of families are in a similar position whereby one partner was denied a pension or other benefits after their partner died because they weren’t married.
It remains to be seen how the ruling will impact other people. Many families across Ireland are waiting to see if they will now get certain social welfare payments or other benefits afforded to married couples that have previously been denied to non-married couples.
The Care Amendment, the 40th Amendment to the Constitution, will be on green ballot paper on 8 March.
Article 41.2.1 refers to a woman’s life within the home. It currently notes:
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.
Article 41.2.2 adds: “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.”
What is the proposed change?
In this amendment there is one vote for two proposed changes. The proposal involves deleting Article 41.2.1 and Article 41.2.2, and inserting a new Article 42B as follows:
“The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.”
Many readers asked about the word ‘strive’ in this context. One noted:
Is that a commitment or an aspiration? It’s a wishy washy aspirational word with no legal definition.
Another asked: “What are the exact implications for family carers? Does it take away the legal obligation from the Government to provide support for those with disabilities?”
In relation to the word ‘strive’, the Electoral Commission notes that the precise nature of the proposed duty on the State “would be largely a matter, in the first place, for legislation enacted by the Oireachtas”.
As with the family amendment, whether such legislation complies with the proposed new obligation on the State could become a matter to be considered by the courts.
The Commission said the proposed amendment “does not confer a general right to a tangible care benefit for family members providing care within families, nor does it reduce the responsibilities of the State, operating through the Government and the Oireachtas, concerning the provision of care supports”.
Is it a missed opportunity?
Some campaigners have labelled the proposed wording for this amendment as a missed opportunity.
Senator Tom Clonan, a disability rights campaigner, is among those who take issue with the wording. Speaking in the Seanad recently, Clonan said the use of the word ‘strive’ renders this care provision “meaningless”.
The proposed wording differs from the wording recommended by both the Citizens’ Assembly and the Joint Oireachtas Committee on Gender Equality in that it omits any reference to rights to care in the community or outside the home.
Both those groups recommended that the Constitution should say the State is obliged “to take reasonable measures to support care” within the home and wider community.
Clonan, who is a carer for his son Eoghan, said the “burden” to provide care will continue to rest on individual families rather than the State.
I think it’s unfair and it reinforces inequality. It disempowers disabled citizens and to give that expression in the Constitution, in Bunreacht na hÉireann, I think we can do better than that. We should have more ambition than that.
When asked about the disagreement over the wording in this amendment, Taoiseach Leo Varadkar questioned what exactly are “reasonable measures”.
“What’s reasonable? Is that actually stronger? I’m not even entirely sure it is,” Varadkar told reporters last month. He added that there has to be “some discretion” related to language used in the Constitution as it cannot cover every scenario.
“If you put in language, say, which was really, really, really strong around care, but you don’t have any language in about cancer treatment, then you’ve a problem.
“So, you have to leave some discretion to the people you elect to decide how resources are allocated, how the money is spent, because if you put everything in the Constitution, it’s actually the courts who will decide, not the people who you elect, and that’s not a good idea.”
Should people back change or the status quo when it comes to the Care Amendment?
Ultimately that’s up to individuals to decide.
Dr Cahillane described the ‘woman in the home’ wording as “really archaic, patronising language”.
While she welcomes the proposed removal of this reference, she said the use of the word “strive” in relation to care is “very disappointing” and unlikely to lead to “any legally enforceable behaviour or duty on the part of the State”.
However, she said the current wording isn’t doing much to help carers either.
She noted that some people plan to vote No in the care amendment “because they think the current wording that’s there is actually doing something positive”.
It is important that people understand that it’s not – people are not going to lose anything by taking it out.
Dr Cahillane said another group of people are considering voting No in this amendment “as a protest, hoping that it might lead to substantial reform”.
“That’s a personal decision that people need to make for themselves, but I suppose the thing people need to bear in mind is that a No vote is a vote for the status quo.
“So by voting No, you’re voting for what’s currently in there and that’s something I think people need to think about.”
You can read about where various political parties stand on the referendums here.
Minister for Social Protection Heather Humphreys and Aontú’s Sarah O’Reilly set out their arguments for Yes and No votes here.
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