Lawyers group urges No vote in family and care referendums

Yes vote would have long-term consequences in tax, property and family law, group claims

A Yes vote in next week’s referendums would mean “major uncertainties” for people in short-term relationships, a group of lawyers has claimed.

It would also have long-term consequences in areas of law including family, tax and property, and mean “no justiciable rights” for people either giving or needing care, Lawyers for No (LFN) said.

The ad hoc group has urged rejection of proposed amendments to the Constitution in referendums on March 8th.

The family amendment proposes to extend the constitutional definition of the family beyond that founded on marriage to include “other durable relationships”. The care amendment proposes to delete Article 41.2, which provides the State recognises the contribution of women’s work in the home to the common good and shall “endeavour” to support it, and replace it with Article 42B providing the State shall “strive” to support care provided by family members to each other.


Speaking at a LFN press conference in Dublin on Thursday, Independent Senator Michael McDowell SC said the McKenna principles – which prevent use of public funds to advocate for any side in a referendum – are being violated if the Government is using “proxy NGOs” to fight its case.

While he had heard there may be a legal challenge to any Yes outcome, he was not involved in that, the Senator said. He believed the referendums would be “beaten decisively, 60/40″.

The press conference was attended by about 10 lawyers, including Clare Independent TD and barrister Michael McNamara; senior counsel Cormac Ó Dúlacháin; barrister and journalist Brenda Power; and Maria Steen, a full-time homemaker and qualified barrister.

Ms Power said she is very concerned the referendums will be decided before the Supreme Court hears an appeal on April 11th by the mother of a profoundly disabled boy who was refused the full means-tested carers allowance because her husband’s salary is €850 weekly.

That appeal, which raises issues of systemic importance for carers, will involve consideration of Article 41.2, which pays homage to the significant work women do in the home and reflects the current reality that most carers are women who are poorly paid and limited in their career options, she said.

Mr Ó Dúlacháin said constitutions are built on historically relevant words and phrases, the meaning of which is “precise and certain”.

There is no universal agreement on what “durable relationships” means and putting family relationships into that category “downgrades the fundamental relationship between adult, parent and child, which is not one based on consent, agreement or contract”, he said.

The Government is effectively saying: “We will build a new house in the Constitution and sometime later, we will design the foundations and tell you what they are,” he said.

Mr McDowell, presenting a document outlining the LFN’s concerns, said the proposal to extend the constitutional family to those founded on other durable relationships is unnecessary because there is nothing a lone parent or cohabitating couple cannot be given by law as long as the Oireachtas wants to do so.

Because the Government rejected an amendment that would permit the Oireachtas to define the meaning of other durable relationships, the courts will have to decide that at some future stage in disputed cases, creating major uncertainties for everyone in short-term relationships, he said.

The door will be open to “concurrent and successive families with multiple partners”, he said.

Married families will still be required by the courts to make proper provision before a divorce but the proper provision requirements will be avoided by spouses leaving the home to form new constitutional unmarried families based on durable relationships, he said.

LFN agrees with the “grave concerns” expressed by some disability groups and the Irish Council for Civil Liberties about the care referendum, he said.

It is arguable that the removal of Article 41.2 could weaken the position of families with one parent working in the home and could result in the removal of tax protections for families based on marriage, he added.

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Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times