It used to be the case in Ireland that getting engaged to somebody was akin to entering into a legally binding contract. Nowadays, though you may be seen as having a moral obligation to that person, you no longer have a legal obligation. However, as will be discussed, this does not mean that getting engaged is without legal consequence.
Tag Archives: Irish law
The wording of the long-anticipated Children’s Referendum was finally released at 11.30am on September 19th 2012. The exact wording, which appears on the website of the Department of Children and Youth Affairs, is as follows:
Proposed New Article 42A
1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
2. 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4. 1° Provision shall be made by law that in the resolution of all proceedings –
i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
(See here for the wording ‘as Gaeilge’.)
The Referendum itself will take place on Saturday November 10th 2012. If passed, the wording will be inserted into the Irish Constitution as Article 42A. Information leaflets will shortly distributed to households across the Republic.
What are your initial reactions to the wording?
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  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.
Any discussion on family law must start with a definition of what is, legally speaking, considered a “family”. (The debate on what should be considered a family rages on, particularly with the introduction of civil partnerships. However, for the purposes of this piece, I shall stick to the current legal definition, as at June 2012.) Though there are references to the family in Articles 41 and 42 of the Constitution, nowhere in it is there a definition of the term. Thus, as is so often the case in the legal sphere, the job was left to the courts. Continue reading