When the Constitutional Review Group (CRG) produced its report in 1996, it recommended, among other things, fundamental changes in Article 41 of the Constitution. This Article gives privileged place and protection to 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".
Unlike the jurisprudence of the European Court of Human Rights, the Irish courts have interpreted the family as referring only to the marital family. While the CRG urged continuing protection for the family, it proposed a new clause which would guarantee all individuals respect for their family life "whether based on marriage or not".
The CRG also urged that children be given new explicit rights and that the Constitution should expressly require that in law the best interests of the child should be the paramount consideration. And it recommended that Article 41.2, which recognises the special position of women within the home, should be made more "gender neutral".
Nearly a decade on, the Joint Oireachtas Committee on the Constitution began to take evidence this week on the reform of Article 41. It is hearing arguments for change from, among others, one-parent families, the gay community, and advocates of children's and fathers' rights. It is a measure of the change in Irish society that even the Catholic Church seems prepared to acknowledge that non-marital unions should receive legislative protection.
The committee sits at this time in the context of an Ireland which rejoices in a multitude of family forms. More than one-third of all births are to parents who are not married to one another. The 2002 census counted 153,900 one-parent families, embracing 11 per cent of the population. The number of divorced people rose from 9,800 in the 1996 census to 35,100 in the 2002 census while the number of separated (including divorced) has increased from 87,800 in 1996 to 133,800 in 2002. Since 1996 there has also been a dramatic increase in the number of cohabiting couples, from 169,300 to 228,600. They now make up one in 12 family units.
Last year, the then minister for social and family affairs, Mary Coughlan, acknowledged explicitly that State policy should not favour one family form over another and the need to provide a broader definition of the family in light of modern societal changes. And, notwithstanding the Cabinet's regrettable decision to contest a legal challenge brought by a lesbian couple seeking to have their Canadian marriage recognised in Ireland, Taoiseach Bertie Ahern has endorsed the need for a degree of recognition and protection of irregular unions, whether gay or not.
Change is overdue if our Constitution and our laws are to recognise the real Ireland. The anomalous position of many in irregular unions or atypical family situations is a cause of much pain. Children's needs must be made paramount. The Oireachtas must grasp the nettle.