Legal minefield awaits ‘durable relationships’ referendum

Legal minefield awaits ‘durable relationships’ referendum March 8 referendum reduces marriage to one lifestyle choice among many. Photo: CNS
It is as if the Govt doesn’t really care about marriage, writes David Quinn

The referendums on the family and on care are closing in fast. They are to take place on Friday, March 8. There has not been much of a debate so far, not compared with the 2015 referendum on marriage, much less the one in 2018 on abortion.

Big campaigns have not been organised on either side. Probably there is a lot of referendum fatigue, and the stakes are not as high this time. Turn-out will almost certainly be low.

But that isn’t to say that what is before us lacks importance.

To do a quick recap, the one on carers aims to delete Article 41.2 from the Constitution. This is the article that commits the State to try and protect mothers from being forced out of the home by economic necessity.

The Government wants to replace this with a more generic wording that doesn’t mention the home, or mothers, or that seeks to protect mothers from having to go out to work. Instead, the new wording, if passed, will commit the State to “strive” to support family carers.


This referendum has captured more attention so far probably because it is somewhat easier to grasp. Totally misleadingly, the Government keeps saying that Article 41.2 states a woman’s place is in the home. It does no such thing, as even the Electoral Commission has admitted. The Government is, in fact, spreading misinformation on this score.

Very few women these days, and probably few enough men either, believe a woman’s place is in the home, but repeated opinion polls show us that the vast majority of mothers would stay at home with their children if they had the economic freedom to do so, but most of them lack that because of the cost of living.

The Government has done little or nothing to support them. On the contrary, Government policy prioritises the economy over the home.

But the referendum on the family is almost certainly the more important of the two and will almost certainly result in many court cases in the years to come.

At present, the Constitution gives official recognition to one family only, and that is the family based on marriage”

This is because, historically speaking, society has always believed that marriage should be given special status and recognition.

But after the so-called ‘marriage equality’ referendum that recognised same-sex marriage, it was inevitable that we would get around to a ‘family equality’ referendum.

If it was a form of discrimination to bar same-sex couples from marrying, then isn’t it also a form of discrimination to give Constitutional recognition to one form of the family only?” This is the logic behind what the Government is doing.

Therefore, it wants us to vote in favour of an amendment that gives recognition to the family based on marriage or on ‘other durable relationships’.


But what is a ‘durable relationship’? No-one seems to know for sure. The Government says it has in mind cohabiting couples, grandparents and a grandchild or lone parents and a child.

The former Justice Minister, Senator Michael McDowell, anticipates numerous unintended consequences for the approach the Government wants us to take.

He wonders what the effect might be on the division of incomes, homes, businesses and farms, on pension law, tax law, succession law and immigration law.

He also points out that the Oireachtas is already free to give other families certain legal rights and has done so in the past.

In practice, the Constitution forbids giving non-marital families superior rights to marital ones but it does not forbid the Oireachtas giving non-marital families many of the same rights as marital ones, and this already happens.

If ‘durable relationships’ goes into the Constitution, let’s imagine a possible scenario. At present, if you marry for the first time you probably go into the marriage legally and financially free of past relationships.

Under a current law, if you lived with someone for five years or more, or two if you had children with them, then you might have certain binding financial commitments to that person. (Not many people are aware of this fact).

But if the ‘durable relationships’ amendment goes through, a cohabiting couple will likely have the same rights and legal duties as a married couple”

This is very strange, because a lot of couples live together without marrying specifically to avoid the legal and financial obligations of marriage.

If the amendment passes, ‘no-strings-attached’ cohabitation may become impossible because a cohabiting relationship, if deemed to be ‘durable’ will probably be made almost identical to marriage.

This means that if you have been in one or more durable cohabiting relationships before getting married then it will be like you have been in one or more past marriages.

You will not be coming into a first marriage free from legal and financial ties to past relationships.


Is this what people really want? Will they really know what they are voting for if they vote Yes on March 8? A legal minefield lies ahead if we go down this path.

But something that has barely reared its head so far is the issue of why we ever gave special recognition to marriage in the first place, and specifically to the marriage of a man and woman. It is like it is almost forbidden now to consider such a thing.

But the answer should be plain to almost anyone who thinks about it; children ideally ought to be raised by the man and the woman who have brought them into the world.

The man and the woman ought to commit to one another before having children and then do their best to stay together. This is why all societies in the world hav developed the institution of marriage and given it special recognition. It is very strange to do otherwise.

The Government keeps telling us that the family has become more ‘diverse’, which is true in a certain sense, but what it means in practice is ever more children not being raised by a married mother and father.

Unless one or other parent is a bad person, how is this a good thing? Why would you want more family ‘diversity’ in the sense of ever fewer children being raised by their married parents?

It is as if the Government does not really care about the institution of marriage anymore, and this explains why it never really seeks to promote and protect it”

Increasingly it seems to favour reducing marriage to one more lifestyle choice among others. That is not good for society or for children and it is a big reason why we should vote No on March 8.