Trust the romantic French to come up with a pragmatic solution on ‘durable relationships’

For anyone who thinks marriage is a sentence, not a word, the French have a solution.

It surfaced when a young Franco-Irish couple recently visiting Dublin from Paris announced the expected arrival of their first child.

“I’d heard you’d got married,” remarked a well-wisher.

“No, we got packed,” they clarified, beaming.

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Amid the dwindling appetite for wedlock, trust the most romantic country on Earth to devise a pragmatic alternative. It’s a legally recognised contract called a pacte civil de solidarité (Pac). Couples who sign on the dotted line in the office of a notary or a mayor qualify for social welfare entitlements, tax benefits and other financial protections under inheritance and succession laws.

Should l’amour eventually wilt and die, they can unpack, so to speak, and formally register the end of their liaison before going their separate ways. It’s a type of conscious coupling that has proven to be highly popular. Since the French parliament introduced the provision in 1999, the number of Pacs has grown almost in direct proportion to the decline in marriages.

Following the Supreme Court ruling here last month in favour of John O’Meara’s claim of entitlement to the contributory widower’s pension, the need for an Irish version of the Pac is starker than ever. The short-lived Irish civil partnership, which was designed for same-sex couples to formalise their relationships, was abolished after the successful marriage equality referendum, despite calls for it to be retained for both opposite and same-sex couples.

O’Meara was refused the pension by the Department of Social Protection after his partner of more than 20 years, Michelle Batey, died with breast cancer and Covid-19 in 2021. The couple, who had three children, had not married, mainly because she feared emulating her parents’ unhappy marriage.

As the Chief Justice, Donal O’Donnell, observed in his lengthy written judgment in the O’Meara case, there are people “who simply do not want the State’s involvement in what is an intimate and personal relationship”.

With the family and care referendums on March 8th drawing near, it is baffling that this statutory gap has not become part of the debate. While campaigners pore over the proposed inclusion of “durable relationships” in the Constitution, long-term couples who either cannot or do not want to be married are being offered no other statutory means to regularise their relationships in the eyes of a State that treats them haphazardly. Its various arms assess them by conflicting yardsticks. Revenue, for instance, applies the same capital gains tax rules for cohabitants transferring their home as applies to married couples. On the other hand, the prosecution side in a criminal trial cannot compel someone to testify against his or her spouse, but cohabitants may be so compelled.

[ Opinion: A Yes vote on the family referendum is a vote for a foreseeable and avoidable mess ]

The provision of civil partnership could set a benchmark for many “durable relationships” – albeit, not for all – thus, in those cases, eliminating the scenario of “unelected” judges deciding its meaning for us. Mind you, give me the wisdom of the Supreme Court over the logic of the Rural Independents Group, Michael Lowry, or many other of our elected representatives.

Interpreting the Constitution is what Ireland’s most senior judges do for a living. The existing family articles in Bunreacht na hÉireann have exercised their minds more than any other clauses so why now, all of a sudden, is it such a scary prospect that they might need to interpret an amendment?

The Constitution is evolutionary. As society evolves, it must too, especially if it is to fulfil its undertaking in the preamble to “uphold the common good” and to assure “the dignity and freedom of the individual”.

There have been predictions that large numbers of voters will use the referendums to lodge a protest against the government. To do so would be un-civic minded and ungenerous and not the kind of referendum voters we have shown ourselves to be in the past decade. Kindness has been the hallmark of the plebiscites on same-sex marriage and abortion. Others now need that consideration.

Some of us are women who have been made to feel second class citizens by article 41.2 and its one-dimensional reference to woman as having her “life within the home”. Not all women feel demeaned by it, but they might spare a thought for those of us who do and vote to get rid of a clause that has done nobody any tangible good.

In his O’Meara judgment, the Chief Justice states there is little doubt that articles 41, 42 and 44 “are among the most visible influences of Catholic thought on the Constitution”, which might partly explain the Iona Institute’s partiality to them. He refers to the incarceration of women and their children in mother and baby homes and to the Carrigan report on child prostitution and sexual abuse which Eamon de Valera’s government refused to publish in 1932. A cabinet memo in October that year said the catalogue of depravity was too severe on men, while overlooking women’s shortcomings.

[ Opinion: Mansplainers are in full ‘listen ladies!’ voice, telling us we’re reading it all wrong as referendum nears ]

Less than five years later, Dev’s new Constitution came into being. It called – and still does – the marital family a “moral institution” after Carrigan had vividly illustrated that, sometimes, it was far from moral.

O’Donnell concludes that “unmarried mothers were as invisible in article 41 as they were or were wished to be in the general life of the State”. The Chief Justice’s words seem to imply that, contrary to claims made by campaigners seeking to keep article 41.2 unchanged, it accords high status to one category of woman and none to another.

“For my part, I do not find the exclusive concept of family in article 41 that was contained in the 1937 Constitution either attractive or admirable or one that is well suited to a contemporary society, at least as I understand it,” O’Donnell wrote. “If it was an experiment in implementing social views, or the teaching of a particular church, in the law then it cannot be said to have been successful”.

We will be asked on March 8th if we want to abolish the reference to woman’s “life within the home”, to regard “durable relationships” as foundational families, and to insert a commitment to carers in the home. If love is our concern, as opposed to marriage, our answer must be, in the immortal words of Molly Bloom, yes, yes and yes.