Letters

Article 41.2 is an important legal safeguard

Referendums and decisions

Sat Feb 17 2024 - 00:10

Sir, – I refer to Dr Maebh Harding’s article “False promises of original article 41.2 are an insult” (Opinion & Analysis, February 15th).

She refers to the Supreme Court decision in L v L and correctly states that Article 41.2 was held not to confer a share in ownership in the family home on dependent spouses.

She omits, however, to refer to the very important part of the judgment of Chief Justice Finlay on behalf of the Supreme Court which reads as follows:

“If a court is assessing the alimony or maintenance payable to a wife and mother, either pursuant to a petition for separation or to a claim under the Family Law (Maintenance of Spouses and Children) Act, 1976, it should in my view have regard to and exercise its duty under Article 41.2] in a case where the husband was capable of making provision for his wife within the home by refusing to have any regard to a capacity of the wife to earn herself, if she was in addition to a wife a mother also, and if the obligation to so earn could lead to the neglect of her duties in the home. In other words, maintenance and alimony could and must be set by a court so as to avoid forcing the wife and mother by an economic necessity to labour out of the home to the neglect of her duties in it.”

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The effect of the foregoing passage was – and still is – to prevent husbands with adequate means from demanding that their separated or divorced wives who are full-time parenting children within the home should be obliged to seek employment outside the home, if by so doing they are forced to seriously compromise the care that such mothers are already choosing to give to their children in the home.

I fail to see how such an important court policy in family law could fairly be described as an “insult” to women who are mothers; on the contrary, I imagine that it would amount not merely to an “insult” but to a gross injustice if husbands with adequate means could demand that their wives be forced to leave the home to work to support themselves and their children so that such husbands could retain a sum equal to moneys the mother might earn.

Article 41.2 is an important legal safeguard for such mothers. It was also relied on by the Supreme Court in the groundbreaking Murphy tax case to invalidate income tax laws which discriminated against married people with spouses parenting in the home. – Yours, etc,

Senator MICHAEL McDOWELL,

Seanad Éireann,

Kildare Street,

Dublin 2.

Sir, – At present the Constitution only recognises families based on marriage and the Government wishes to extend constitutional protection to other relationships where there is a “durable relationship” but this wording is being left undefined. It seems the Supreme Court will be given the task of answering the age-old conundrum of “how long is a piece of string ?” in determining the boundaries of a durable relationship.

In relation to the carers’ amendment, while the archaic language relating to women’s “life within the home” is being removed, it is being replaced by a commitment that the State is now required to strive to support the common good that bonds the provision of care within familial units. It’s a commitment not unlike the plea of St Augustine to the Almighty to make him chaste but not just yet.

Those advocating a double No vote, on the basis that both amendments are flawed, are grading the Government’s homework as a failure with a mark “can do better”. On the other hand it is also arguable that a double No vote could be interpreted as an acceptance of the status quo.

Much to ponder. – Yours, etc,

PAUL WALSH,

Skerries,

Co Dublin.

Sir, – I read with interest the article “Electoral Commission to address uncertainty over next month’s referendums” (News, February 15th).

The chairwoman of the Electoral Commission Ms Justice Marie Baker was reported as saying it would be logical after the referendum for the Oireachtas to legislate on this definition and then for the courts to interpret it. I disagree. It would be logical for the legislation which will define this to be drafted before the referendum so that we know what we are voting on. She also fails to note that if legislation were enacted it could still be found to be unconstitutional if the Supreme Court ascribes a different meaning to the phrase “durable relationships”.

The electorate should be given clarity as to whether the term “durable relationship” will be defined by the Oireachtas after the referendum or whether it will be left to the courts. – Is mise,

JANE COYNE,

Galway.

Sir, – I listened to the Irish Times podcast Head-to-head: The Yes and No ahead of the family and care referendums, chaired by Hugh Linehan.

https://www.irishtimes.com/podcasts/inside-politics/head-to-head-the-yes-and-no-arguments-ahead-of-the-family-and-care-referendums/

Your columnists Justine McCarthy and Michael McDowell engaged in an informed, thought provoking, intelligent, and pleasant dialogue.

If only we could have more respectful debate like this. Well worth a listen. – Yours, etc,

GARRETT MURRAY,

Dublin 8.