Table of Contents

European Family Law Volume II

European Family Law Volume II

The Changing Concept of ‘Family’ and Challenges for Domestic Family Law

Edited by Jens M. Scherpe

This four-volume set maps the emerging European family law. It is intended to serve as a resource for anyone interested in this area of law, as well as a basis for teaching on comparative and international family law courses. The first volume examines the impact of institutions and organisations on European family law. While there is no European body that could actually legislate definitively on family law, there are some institutions that have a direct impact on European family law, while the impact of others is more indirect. In the second volume the changing concept of ‘family’ and challenges for domestic family law are analysed in 21 different jurisdictions, in 16 chapters. All contributions look at ‘horizontal’ family law (the law concerning the relationships between adults), ‘vertical’ family law (the law concerning the relationships of adults and children) as well an ‘individual’ family law (the law on names and gender identity). In the third volume the contributions take a comparative view on specific issues from a European perspective. The fourth volume, which works as a stand-alone monograph, draws on all of the previous chapters, and discusses the present and future of European family law. It establishes areas where ‘institutional’ European family law exists – in the sense that there are binding legal rules for all European jurisdictions – for example, as a result of a decision by the European Court of Human Rights. It also identifies areas where, as a result of common legal and social developments for ‘horizontal’, ‘vertical’ and ‘individual’ family law, an ‘organic’ European family law is emerging and suggests how family laws in Europe are going to develop in the future.

Chapter 7: The changing concept of ‘family’ and challenges for family law in Ireland

Edited by Jens M. Scherpe

Subjects: law - academic, european law, family law

Extract

In its 1937 Constitution, the Irish state ‘recognises 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’. As a result, it ‘guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State’. The result, as Shannon put it before recent changes to recognise the individual rights of children, was that ‘the family unit in Ireland ha[d] autonomy over and above that of the individual members of the family’, and that ‘the individual rights of the constituent members of the family [were] both directed and determined by the family as an entity in itself’. Via the Constitution the state also ‘pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack’. The powerfulness of this ‘pledge’ can be seen from the fact that divorce was not possible in Ireland until a 1995 referendum (narrowly) resulted in a constitutional amendment. It is also significant that a court will not interpret national law in conformity with the European Convention on Human Rights or follow the jurisprudence of the European Court of Human Rights where doing so would be inconsistent with the Irish Constitution.

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