No Legal Recognition for Social Change

Despite these immense social changes, the marital family remains the only officially recognised unit in Irish law. In the 1937 Constitution, the family is recognised in Article 41 as the ‘natural primary and fundamental unit group of society.' But this has been interpreted to mean only the marital family – the family based on marriage. Single parent families and co-habiting heterosexual or same-sex couples are excluded from this definition. The law is out of touch with the immense social change that has occurred over the last decade.

The non-marital family lacks any constitutional status or legal protection. Lack of legal recognition creates fundamental problems and disadvantages for unmarried co-habiting partners on a whole range of critical personal issues: child custody; adoption; healthcare; taxation; maintenance; citizenship; property and inheritance rights. Joint adoption of a child by a couple is only possible where that couple is married and living together; co-habiting or same-sex couples may not jointly adopt a child. A co-habiting partner who is not the natural parent of their partner's child may not obtain parental leave from work to look after that child.

When unmarried parents separate, there is no legal provision for seeking financial maintenance. Under pension and death benefit schemes, non-marital partners are generally excluded from benefits, and a same-sex partner or unmarried heterosexual partner has no right to a legal share in the estate of their deceased partner. Married partners, on the other hand, are entitled to many advantages in taxation of their income and assets, entitlements which are not available to non-married partners. Finally, non-nationals involved in non-marital relationships with Irish citizens may not acquire citizenship on the basis of their relationships – immigration policy generally is heavily weighted in favour of the married couple where one partner is an Irish citizen.

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The KAL Case