Abstract
The very limited capacity to make private inter parte contractual arrangements under Irish family law is unsurprising given the protected status of the family under Article 41 of the Constitution and its express positioning of the marital family as the fundamental unit group of society. Individuals typically cannot obtain or exclude familial status by private agreement and the related rights and obligations remain determinable and reviewable by the operation of law. In particular, the Irish courts have regarded themselves responsible for the protection of vulnerable family members, recognising the imbalance of power that might often exist within a family unit. Thus Irish family law is strongly state centric with little room for formal contractualisation. Private autonomy is secondary to the state’s obligation and entitlement to ensure where possible, the protection of the family, especially the marital family. Such intervention is mandated to protect the rights of the parties, both in the course of the union, as well as upon the breakdown of the relationship, but at all times to make determinations that are in the best interests of the children.
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Notes
- 1.
Bunreacht na hÉireann.
- 2.
Articles 12–14 Bunreacht na hÉireann.
- 3.
Article 25 Bunreacht na hÉireann.
- 4.
Article 25 Bunreacht na hÉireann.
- 5.
Article 34.3.3°.
- 6.
Article 28.
- 7.
Prime Minister. Article 28 Bunreacht na hÉireann.
- 8.
The National Parliament. Article 15–24 Bunreacht na hÉireann.
- 9.
Dáil (House of representatives) Seanad (Senate).
- 10.
Article 15.2.1° Bunreacht na hÉireann.
- 11.
Article 28.4.1° Bunreacht na hÉireann.
- 12.
Article 35 Bunreacht na hÉireann.
- 13.
Article 35.2 Bunreacht na hÉireann.
- 14.
Article 34 Bunreacht na hÉireann.
- 15.
Article 26 and Article 34.3.2.
- 16.
Article 34. A Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013.
- 17.
Ibid.
- 18.
S2(1) Age of Majority Act 1985.
- 19.
Limited by the Infants Relief Act 1874 see Law Reform Commission Report on Minors (LRC 15–1983) 3.
- 20.
Hassard v Smith (1872) IR Eq 429.
- 21.
See further R Clark “Contract Law in Ireland” 7th ed (Dublin Roundhall 2013) Part 1.
- 22.
Bennett v Bennett [1952] 1 KB 249.
- 23.
See W Duncan, ‘Supporting the Institution of Marriage in Ireland’ [1978] The Irish Jurist.
- 24.
Murphy v Attorney General [1982] IR 241; Muckley v Ireland [1985] IR 472; Hyland v Minister for Social Welfare [1989] IR 624; Greene v Minister for Social Welfare.
- 25.
State (Nicholaou) v An Bord Uchtála [1966] IR 567, 622. See further M Harding “A Softening of the Marital Paradigm?” [2012] The International Survey of Family Law 151–168.
- 26.
G v An Bord Uchtála [1980] IR 32.
- 27.
Article 42.5. In practice this has been proved very difficult and adversely affected the welfare of marital children. See M Harding, ‘M Harding ‘Constitutional Recognition of Children’s rights and paramountcy of welfare’ [2013] International Survey of Family Law 175–194.
- 28.
Thirty-First Amendment of the Constitution (Children) Bill 2012.
- 29.
Children Act 1997 and Children Act 2001.
- 30.
Domicile and Recognition of Foreign Divorces Act 1986, Judicial Separation and Family Law Reform Act 1989, Family Law Act 1995, Family Law (Divorce) Act 1996, Family Law (Miscellaneous Provisions) Act 1997.
- 31.
Family Law Act 1981, Status of Children Act 1987, Civil Partnership and Certain Rights and Obligations of Cohabitees Act 2010.
- 32.
Adoption Acts 1952–2010.
- 33.
Child Abduction and Enforcement of Custody Orders Act 1991.
- 34.
Child Care Act 1991, Children Act 2001 and the Child Care Amendment Acts 2007–2013.
- 35.
Domestic Violence Act 1996, Domestic Violence (Amendment) Act 2002.
- 36.
Fiona Gartland, ‘Referendum on separate family court system will be held in 2014, says Minister for Justice’ Irish Times 8 July 2013 available http://www.irishtimes.com/news/crime-and-law/referendum-on-separate-family-court-system-will-be-held-in-2014-says-minister-for-justice-1.1455985. Access date 18/12/2013.
- 37.
JMcD v PL and BM and the Attorney General (Notice Party) [2010] 2 IR 199.
- 38.
At 245.
- 39.
Foy v. An t-Ard Chláraitheoir & Others [2007] IEHC 470.
- 40.
Gender Recognition Bill 2013 available http://www.welfare.ie/en/Pages/Gender-Recognition-Bill-2013.aspx.
- 41.
Article 29(4)(3) of the Constitution authorizes Irelands membership of the European Union.
- 42.
M Harding, ‘Ireland’ in K Trimmings and P Beaumont, International Surrogacy Arrangements: Legal Regulation at the International Level (Hart, 2013) 224.
- 43.
O’B v S [1984] IR 316, 338.
- 44.
- 45.
G v An Bord Uchtála [1980] 1 IR 32–101, 97–98.
- 46.
Law Reform Commission, Report on Illegitimacy (LRC 4-1982) [254].
- 47.
Eg RX QMA and CXM v Minister for Equality and Law reform [2010] IEHC 446, p6.
- 48.
MR v An t-Ard Chláraitheoir [2013] IEHC 91; C Murray, ‘Recent Developments in Irish Law on Guardianship in the Context of Surrogacy Arrangements’[2013] IFL 261–266.
- 49.
MR v An t-Ard Chláraitheoir [2013] IEHC 91 [104].
- 50.
F Gartland, ‘Landmark surrogacy case to be appealed’, Irish Times 6 June 2013.
- 51.
Section 45 Status of Children Act.
- 52.
S6(1) Guardianship of Infants Act 1964.
- 53.
FP v SP and the Attorney General unreported judgment of Smith J IEHC 31 July 1999; BM v MG unreported judgment of McGuinness J, IECC 30 November 1999.
- 54.
JPD v MG [1991] ILRM 217 IESC.
- 55.
The Civil Registration (Amendment) Bill 2013, when enacted, will make it mandatory for both parents’ names to appear on the birth certificate.
- 56.
K v W [1990] 2 IR 437; W O’R v EH [1996] 2 IR 248; McD v L [2009] IESC 8.
- 57.
S2(4) of the Guardianship of Infants Act 1964. Such a declaration must comply with the Guardianship of Children (Statutory Declarations) Regulations 1998.
- 58.
Published on the 25 September 2014.
- 59.
McD v L [2010] 2 IR 199.
- 60.
- 61.
[2013] IEHC 91.
- 62.
See M Harding, ‘Chapter 13-Ireland’ in K Trimmings and P Beaumont International Surrogacy Arrangements: Legal Regulation at the International Level (Hart Publishing 2013).
- 63.
See for example Department of Justice, Citizenship Parentage, Guardianship and Travel Documents issued in relation to the children born as a result of Surrogacy Arrangements entered into outside the State. And Report of the Commission on Assisted Human Reproduction (2005) available at www.dohc.ie/publications/cahr.html
- 64.
D Madden, ‘The Challenge of Surrogacy in Ireland’ (1996) 14 Irish Law Times 34; GW Hogan and GF Whyte JM Kelly: The Irish Constitution 4th ed Tottel 2003.
- 65.
S3 Guardianship of Infants Act 1964.
- 66.
S58 Adoption Act 2010.
- 67.
S125(3) Adoption Act 2010.
- 68.
S125 Adoption Act 2010.
- 69.
S23 Adoption Act 2010.
- 70.
S54 Adoption Act 2010.
- 71.
[1989] 1 IR 66.
- 72.
These requirements are now found in s54(2) of the Adoption Act 2010.
- 73.
Thirty First amendment of the Constitution (Children) Bill 2012.
- 74.
Article 42A.2.3.
- 75.
Jordan v Minister for Children and Youth Affairs. M Harding ‘Constitutional Recognition of Children’s rights and paramountcy of welfare’ [2013] International Survey of Family Law 175–194.
- 76.
Guardianship of Infants Act 1964: Family Law (Maintenance of Spouses and Children) Act 1976.
- 77.
Guardianship is regulated by the Guardianship of Infants Act 1964. However the recently published General Scheme of the Children and Family Relationships Bill 2014 will, if enacted repeal the 1964 Act in its entirety.
- 78.
Ss6, 10 Guardianship of Infants Act 1964; G v An Bord Uchtála IR 32, 86.
- 79.
Section 6(4) Guardianship of Infants Act 1964.
- 80.
In Re M [1946] IR 334 and State (Nicolaou) v An Bord Uchtála [1966] IR 567 locate the rights in 41 and 42. A distinction is made in G v An Bord Uchtála [1980] IR 32, 55. See further O’B v S [1984] IR 316, GD v St Louise’s Adoption society Unreported HC Budd J and M’OC v Sacred Heart [1996] ILRM 297.
- 81.
Walsh J State (Nicolaou) v An Bord Uchtála [1966] IR 567.
- 82.
Section 8(4) Guardianship of Infants Act 1964.
- 83.
S2(4) Guardianship of Infants Act 1964.
- 84.
S7 Guardianship of Infants Act 1964.
- 85.
S8(4) Guardianship of Infants Act 1964; FN and EB v CO, HO and EK unreported High Court, Finlay-Geoghegan J, March 26, 2004.
- 86.
S8(1) Guardianship of Infants Act 1964.
- 87.
S8(2) Guardianship of Infants Act 1964.
- 88.
S8(4) Guardianship of Infants Act 1964.
- 89.
S18 Guardianship of Infants Act 1964.
- 90.
WO’R v EH [1996] 2 IR 248, 249.
- 91.
Section 3 Guardianship of Infants Act 1964.
- 92.
This is supported by s17 of the Guardianship of Infants Act 1964.
- 93.
See generally L Crowley Family Law (Roundhall 2013) chapter 1, The Family, Marriage and the Law, 1–87.
- 94.
See generally L Crowley (Roundhall 2013) chapter 2, Non-Marital Family 88–136.
- 95.
(1866) LR 1 PD 130.
- 96.
[1985] ILRM 532.
- 97.
S46 Civil Registration Act 2004.
- 98.
S49 Civil Registration Act 2004.
- 99.
Section 33(2) Family Law Act 1995; unaffected by the 2004 Act.
- 100.
The Marriage Act 1835; See also M Harding, ‘The Curious Incident of the Marriage Act No.2 1537 and the Irish Statute Book’(2012) 32 Legal Studies 78–108.
- 101.
The Marriage of Lunatics Act 1811; Turner v Meyers (1908) 1 Hag Con 414, ME v AE [1987] IR 147.
- 102.
Sections 31–33 Family Law Act 1995.
- 103.
Conlan v Mohammed [1987] ILRM 523.
- 104.
McKinley v Minister for Defence [1992] 2 IR 333.
- 105.
Maintenance of Spouses of Children Act 1976, Judicial separation and Family Law Reform 1989. The Family Law Act 1995 and the Family Law (Divorce) Act 1996.
- 106.
A O’D v P O’ D [1998] 1 ILRM 543.
- 107.
Set out in section 2(1)(a)-(f) of the Judicial Separation and Family Law Reform Act 1989.
- 108.
McA v McA [2000] 1 IR 457.
- 109.
Section 20 of the Family Law (Divorce) Act 1996 requires the court to consider a number of factors when considering what is proper.
- 110.
As set out in the Family Law (Divorce) Act 1996 including – 1 years residency in the jurisdiction, each spouse must provide an affidavit of means, solicitors must have discussed with their clients the prospects of reconciliation, mediation and executing a separation agreement. Rules of court require the spouses to swear affidavits of welfare relating to any children of the marriage.
- 111.
BL v ML [1992] 2 IR 77.
- 112.
Section 20(2)(f) Family Law (Divorce) Act 1996.
- 113.
The long-standing position in relation to maintenance as enunciated by Walsh J in HD v PD was that “…it is not possible to contract out of the Act by an agreement…” In JH v RH Barr J ordered an increase in the maintenance payable by the husband in favour of the wife and children, despite the existence of a separation agreement, which constituted “a full and final settlement of all matters outstanding between them…”
- 114.
Part 3 2010 Act.
- 115.
S59D Civil Registration Act 2004.
- 116.
An order of recognition made under s.5(1) entitles and obliges the parties to the legal relationship to be treated as civil partners under Irish law from the later of –
-
(a)
21 days after the order is made, and
-
(b)
the day on which the relationship was registered under the law of the jurisdiction in which it was entered into.
-
(a)
- 117.
Part 4 2010 Act.
- 118.
S11A Succession Act 1965.
- 119.
S110 2010 Act.
- 120.
S110b. 2010 Act.
- 121.
S172(1) 2010 Act.
- 122.
S172 (2).
- 123.
S172(5) 2010 Act.
- 124.
Redress, property adjustment, pension adjustment, compulsory maintenance.ss 173–175 187.
- 125.
S194.
- 126.
S173(2).
- 127.
S173 2010.
- 128.
I.e. living apart for 4 years out of the previous 5 Article 41.3.2 of the Irish Constitution.
- 129.
See J Mee ‘Cohabitation Law Reform in Ireland’ (2011) 23 Child and Family Law Quarterly 323–343, 332.
- 130.
S202(4) 2010 Act.
- 131.
S.I. No. 209/2011.
- 132.
Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters (2008) OJ L 136/3.
- 133.
Regulation 3.
- 134.
Regulation 4.
- 135.
Regulation 5.
- 136.
Regulation 5(1).
- 137.
Section 5 Family Law Act 1995.
- 138.
The obligation on the solicitor representing the respondent is governed by s.6 of the 1995 Act.
- 139.
S.I. No 358 of 2008: Circuit Court Rules (Case Progression in Family Law Proceedings) 2008.
- 140.
Mediation is a service for both married and non married couples. It can also provide a mediation service to families in crisis.
- 141.
See further L Crowley Family Law (Roundhall 2013) chapter 10 Private Ordering, 557–586.
- 142.
For example in the context of a marital breakdown dispute in The State (Bouzagou) v Station Sergeant, Fitzgibbon Street Garda Station [1985] IR 426 Barrington J noted that in the absence of an agreement between the husband and wife, the task of reconciling the rights of the individual members of the family was a matter for the courts to determine.
- 143.
As supported by the research work of Carol Coulter “Family Law Matters”. In Volume 1 No 3 Coulter traced the operations of the Dublin Circuit Family Court for the month of October 2006, noting that of the 161 cases concluded in that month only 16 went to a full hearing of the court. Even more significantly, in a similar study of the practices of the Cork Circuit Family Court, an analysis of the 48 divorce and judicial separation applications listed for resolution in the 2 week family law session in October 2005 noted that all 48 cases were settled and none necessitated a court hearing.
- 144.
See the very trenchant views expressed in WA v MA [2005] 1 IR 1 where Hardiman J regarded it as appropriate to give “very significant weight” to the terms of the separation agreement between the parties and ultimately refused to order any further financial relief in favour of the applicant wife.
- 145.
The then Minster for Justice Equality and Law Reform, Michael McDowell appointed a Study Group to study and report on the operation of the law since the introduction of divorce in 1996, taking into account constitutional requirements. The Study Group published its report in April 2007.
- 146.
SJN v PCO’D Unreported High Court 29 November 2006.
- 147.
SMcM v MMcM [2006] IEHC 451.
- 148.
Ibid at pages 3, 4 of the transcript.
- 149.
RG v CG [2005] 2 IR 418.
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Crowley, L., Harding, M. (2015). Contractualisation of Family Law in Ireland. In: Swennen, F. (eds) Contractualisation of Family Law - Global Perspectives. Ius Comparatum - Global Studies in Comparative Law, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-17229-3_10
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