The rights of the marital family under Irish law

Article 41 of Bunreacht na hÉireann confers “inalienable and imprescriptible rights” on the family and declares these rights as being “antecedent and superior to all positive law”. These rights are conferred on the family as a single unit, and not on the individuals that make up that unit. This was summed up succinctly by Costello J in Murray v. Ireland [1985] when he described the rights as belonging to “the institution itself”. But what exactly are these rights? They are not enumerated in the Constitution and so, once again, it has been left to the courts to do so.

The right of parents to provide for “the religious and moral, intellectual, physical and social education of their children”

This is guaranteed under Article 42 of the Constitution and the Education (Welfare) Act 2000. Thus, it is for the parents to decide whether a child is home-schooled, or whether s/he attends at a private or State-established school. However, the right comes with a caveat: if, for physical or moral reasons, the parents fail in this duty, or fail to provide a certain minimum level of education, the State can intervene to decide how or where the child should be educated.

Marital privacy

This was dealt with in the seminal case of McGee v. Attorney General [1974] in which the plaintiff claimed that the prohibition under section 17(3) of the Criminal Law Amendment Act 1935 on the importation of artificial contraception was a breach of his constitutional rights under Article 41. The Supreme Court agreed that a husband and wife had a right to limit how many children, if any, they would have by the use of contraception, and that the State could not intrude on the joint decision of a husband and wife “unless its intrusion can be justified by the exigencies of the common good”. (Note that there is also a corresponding right of a marital couple to procreate.)

Guardianship and custody

Section 6 of the Guardianship of Infants Act 1964 confers on married parents the joint right to guardianship and custody of their children.


Consortium was defined by Kingsmill Moore J in O’Haran v. Devine [1966] as “the sum total of the benefits which a husband and wife may be expected to confer on each other, such as, help, comfort, companionship, services and all the amenities of family and marriage”. There have been many cases in which a spouse has successfully sought damages for loss of consortium in cases where the other spouse has been involved in an accident which causes debilitation or requires hospitalisation for an extended period of time.

Income tax

A married couple cannot be treated less favourably in tax affairs than an unmarried couple.

Medical treatment

Under section 23 of the Non-Fatal Offences Against The Persons Act 1997, the age of consent to medical treatment is 16. Thus, a child under 16 must have the consent of their parent or guardian before undergoing any medical treatment. Otherwise it could be considered a trespass to the person and a breach of the constitutional right to bodily integrity guaranteed under Article 40, which could lead not only to a civil action for damages but also to criminal prosecution. Thus, it is the parents’ duty to consent or, conversely, to withhold consent on their child’s behalf. As such, they are also entitled to be informed of any medical information relating to the child.

It is worth noting that, in exceptional circumstances, and in the interests of the child and of the common good, a court may rule against a parent’s wishes in this regard. There have been several recent cases which highlight this: for example, a blood transfusion will be ordered for a child in the case of a parent who has refused it on religious grounds; or, as in the ‘C’ case, the court overruled the parents of a child who became pregnant as a result of rape when they refused to allow that child to travel to England for an abortion.

Of course, the law is ever-changing and this cannot be considered an exhaustive list.  Over time, new rights and responsibilities may be placed on Irish married couples, particularly as our society grows and evolves and finds itself in situations never dreamed of when the Constitution was drafted. (One only has to look at the emergence of the internet and the popularity of social media to see how times have changed.) Nonetheless, the above represents a reasonably comprehensive list of the rights of the marital family under current Irish law.


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One response to “The rights of the marital family under Irish law

  1. Pingback: The rights of the non-marital family under Irish law | Laura On Law

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