While we all may have heard of a “common law marriage”, whereby a couple live together as husband and wife without actually being legally married, the concept is not recognised under Irish law. Although the family is recognised and protected in Article 41.1 as “the natural primary and fundamental unit group of Society”, the State still holds the institution of marriage above all non-marital unions, as outlined in my article on the rights of the marital family. Nonetheless, non-marital families are afforded some protections and rights under Irish law.
Historically, one of the relationships with the fewest amount of rights was that of unmarried/natural father and his child. While a natural father’s rights have increased dramatically in recent years, they still do not come close to those of a father who is married to the mother of the child. Indeed, a natural father has no constitutional rights to his child whatsoever, so it is to statute that we must turn.
Under section 6A of the Guardianship of Infants Act 1964, a natural father has a right to apply to the Irish courts to be appointed guardian of his child. If the mother is in agreement, this can be done under section 4 of the Children Act 1997. Where a father does not have a court order granting guardianship, or where the mother does not agree, he may apply under section 10 of the Adoption Act 1991 to adopt his own child. As an adoptive father, he is afforded some rights of consultation in respect of the child. These are laid out in the 1998 Adoption Act.
(In McD v. L & anor , the Supreme Court considered a sperm donor to be a natural father, but noted that, in an application for guardianship, such application “would be placed quite low, certainly by comparison with the natural father in a long-term relationship approximating to a family”. Nonetheless, a sperm donor enjoys the same right to apply as any natural father.)
A natural mother, on the other hand, enjoys much more rights. Unlike the father, she does not have to apply for guardianship of her child — by virtue of section 6(4) of the Guardianship of Infants Act, sole guardianship is automatically conferred on her. She also has a right to custody of her child under section 10(2)(a) of same, and has a right to consent or withhold consent to adoption (though this can be overruled by the High Court).
Turning now to the child of unmarried parents, we can again see an increase in rights. The notion of illegitimacy has, in the legal sense, been abolished by section 3 of the Status of Children Act 1987, so that now all children, whether born in or out of wedlock, have the same legal rights. When any application comes before the Irish courts concerning a child, the child’s best interests will be of paramount concern. This will be the case even where there is agreement between the father and mother as to the relationship either one will have with the child. Such agreements, though certainly taken into consideration, are unenforceable under Irish law.
Other areas where there are differing rights between married and non-married couples include property and inheritance. With an unmarried couple, a shared property would not be considered a family home under Irish law, and therefore would not be protected as such in the event of any attempt at repossession, etc. Similarly, in the event of the breakdown of the relationship, the property would be divided according to who paid the mortgage, regardless of whether one party stayed home to raise the children. So, for example, a married mother who never contributed to the household financially but stayed home to look after the children would be entitled to a share in the property if her marriage broke down; an unmarried mother in the same situation would not.
Similarly, in the event of a person dying intestate (that is, without a will), their spouse would be automatically entitled to an inheritance. However, if that person was not married, their partner would have no such entitlement.
So, as we can see, there is currently a vast difference between the rights afforded to a married couple and to an unmarried couple in Ireland. This remains the case regardless of the length of the relationship. A couple who have been married for only one day enjoy all the rights of a marital family; an unmarried couple does not enjoy these rights, even if their relationship spans several decades.
While this post limits its focus to the situation under Irish law, it is worth noting that non-marital families are also afforded some protection under Article 8 of the European Convention on Human Rights. Unfortunately, it is impossible to cover every single right afforded to a non-marital family, particularly when these rights are constantly evolving and changing. Cohabitees, for example, are gaining more and more rights under Irish law as non-marital families are becoming increasingly prevalent in modern society. Similarly, with progress being made towards same-sex marriages, the “traditional” notion of a family as being made up of a man, a woman, and their biological child(ren) will soon be something that comes up for debate before the Irish courts. For now, though, it remains the case that, under Irish law, the non-marital family enjoys far fewer rights than its married counterpart.