The Changing Concept of ‘Family’ and Challenges for Domestic Family Law
Edited by Jens M. Scherpe
Chapter 7: The changing concept of ‘family’ and challenges for family law in Ireland
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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