Referendum on constitutional definition of family revealing new complexities

Inside Politics: Supreme Court ruling will see legislation introduced to extend widows’ and widowers’ pensions to surviving partners in non-marital families

What is a durable relationship?

It’s a question that will receive much consideration in the run-up to one of the referendums in March when the Government is proposing to change the Constitution to expand the definition of the family.

As Minister for Equality Roderic O’Gorman put it in the Seanad debate on the referendum legislation on Monday, the new language would “formally de-link” marriage and family.

Following a Yes vote a new section would say that the State recognises the family “whether founded on marriage or on other durable relationships”.


The special protection for marriage would not be removed but the change, Mr O’Gorman said, would be a “positive and upfront affirmation that the concept of family… is no longer limited to the marital family and also encompasses other durable, other committed relationships such as one-parent families, such as co-habiting couples and their children.”

However, where the Government sees positive change, others have warned of the potential difficulties that amending the Constitution in this way could present during the Seanad debate on the referendum legislation.

Independent Senator Michael McDowell, who has been arguing for a No vote urged the Government to “look around a few corners”.

He said: “Look to immigration law, look to succession law, look to pensions law, look to a series of issues of that kind and you will find that there is every good reason to proceed with caution.”

Mr McDowell claimed that holding this referendum – and another on care – on March 8th, International Women’s Day, was a “worthless cheap gimmick” that means the legislation is being “rushed through” the Oireachtas.

As we report this morning, Mr McDowell also questioned the need to hold the referendum in light of the O’Meara judgment in the Supreme Court.

This came after Tipperary man John O’Meara was denied payment of a widower’s pension because he was neither married to nor in a civil partnership with Michelle Batey, his partner of almost 20 years and the mother of his children. Ms Batey died in 2021.

Mr O’Meara challenged the constitutionality of the social welfare legislation.

The seven-judge Supreme Court on Monday quashed the refusal of the benefit and ruled the relevant provision of the social welfare legislation was invalid under the Constitution.

As a result the Government is to quickly introduce legislation to extend widows’ and widowers’ pensions to surviving partners in non-marital families.

However, it is understood that Ministers and senior officials have been told that the judgment has no implications for the proposed referendum which seeks to expand the constitutional definition of family beyond the family based on marriage.

Back in the Seanad, Independent Senator Rónán Mullen, said his view is that the proposed change to the Constitution “devalues marriage” as it “equates the rights of a family based on marriage to those persons in a durable relationship and a durable relationship the Minister cannot define”.

He added: “As far as I can see, despite protestations to the contrary… we are potentially placing polygamous relationships on a par.”

He added: “They are not entered into in Ireland because polygamy is illegal in Ireland but perhaps the ban on polygamy will be found to be repugnant to the Constitution in the light of this constitutional change in the future.”

Meanwhile, Senator Sharon Keoghan raised other hypotheticals.

She said that during her time as a foster parent she has had more than 100 children in her care and asked: “Would they be entitled to contest my will because they might claim to have a durable relationship with me?”

She asked if someone having an affair might be able to contest a will when the person they were having an affair with dies?

She said supporters of the referendum might disagree but “in the eyes of a judge it could look very, very different”.

In his contribution Mr O’Gorman insisted: “We’re not seeking to bring in novel concepts, concepts that have never been recognised in Irish law, such as polygamous marriages.

“Our courts have been very clear on that in the past and that remains the case.”

Many other Senators spoke in favour of the referendum, some citing their own personal family experiences.

Green Party Senator Róisín Garvey said: “As a single parent myself, I feel kind of deeply offended by people who think… in this archaic definition, a family is solely based on marriage. I try not to get upset.”

She said: “It’s perfectly normal that we would change wording and keep up with the times.” In the end the legislation passed Second Stage in the Seanad by 25 votes to four.

Read our coverage of the debate.

The legislation is back in the Seanad for committee stage today. By the end of the day the Bill for this referendum and the other one on care – which would remove the controversial “women in the home” language from the Constitution – are expected to have passed all stages of the Oireachtas.

The stage will be set for the referendum campaign ahead.

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The Cabinet is meeting this morning. Jennifer Bray reports on proposals due to be considered including plans that would mean income from the rent-a-room scheme will no longer be counted as relevant income for people applying for a medical card.

Dáil proceedings kick off at 2pm with Leaders’ Questions.

Government Business in the afternoon is the second stage of the Charities (Amendment) Bill 2023 which will be debated from 3.49pm.

Next up is a debate on a Sinn Féin motion on housing and homelessness prevention at 6.15pm

Tánaiste Micheál Martin is due to take parliamentary questions on his defence brief at 8.17pm.

TDs will have a chance to raise Topical Issues at 9.47pm.

The Seanad will consider the legislation required for the upcoming referendum on family and care at committee stage from 12.45pm. The Government is aiming for the two Bills to pass all stages in the Oireachtas this week ahead of the referendums due to take place on March 8th, International Women’s Day.

There is a Fianna Fáil motion on China up for debate from 7.30pm.

In the committee rooms the Joint Committee on Assisted Dying continues its deliberations at 10.30am.

The Committee on Environment will hear from ESB Networks, the Commission for the Regulation of Utilities and Minister of State Ossian Smyth on the topic of the now-ended Large Energy Users Rebalancing Subvention. The meeting is at 11am. Our tee-up story is here.

The Land Development Agency is to update the Committee on Housing on its work and how it aims to deliver 14,000 homes by the end of 2028.

Full schedules

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