Irish family law has been formulated around the concept of the family as a married heterosexual couple who conceive children within wedlock. This has resulted in the non-marital family not enjoying the full protections of the law. It has only been in the last decade that these families have started to be included in Irish law. It is interesting to examine this development in light of the European Court of Human Rights (ECtHR). Indeed, up until the late 1980s, there was no legal recognition of same-sex relationships in any of the European jurisdictions. While marriage is becoming increasingly available for same-sex couples in Europe, there still remain many jurisdictions where there is no legal recognition. This essay seeks to examine the extent to which the ECtHR has been an impetus for the recognition of the non-marital family in Irish law. Marriage will be discussed here in the context of the basket of rights it bestows. The legal recognition of the non-marital family has implications for different areas of Irish law, such as immigration, adoption, succession.
This essay will begin by examining the relevant case law in the ECtHR, specifically regarding family life and same-sex couples. The essay will then continue on to look at Irish case law on the non-marital family and how the jurisprudence of the European court has influenced this. This essay will finish by examining the impact in society of this treatment of non-marital families and ways this could change.
THE EUROPEAN COURT OF HUMAN RIGHTS
This section will examine how non-marital families are treated, in the context of the ECtHR. This issue has developed and changed a lot over the history of the court. Indeed, in Mazurek v France, the Court held that “the institution...
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... applying for an adoption order, given that section 2 of the ECHR provides that all organs of state must consider relevant case law of the ECtHR. Currently, same-sex partners cannot apply jointly for an adoption in Ireland, but they can in the UK, and so it should be considered here. It is illogical that a parent would have a better chance of adopting a child on their own, rather than jointly with their partner. Indeed, it is a positive step that there will be a referendum on same-sex marriage. However, the nature of marriage is religious and this referendum could be seen as unnecessary and wrongly defining the problem, when what are at stake are legal and contractual rights. If legislation was altered to give the same rights to people in civil partnerships as marriage, or if adoption legislation was altered, then there would be no legal need for same-sex marriage.
Gay marriage further damages the connection between marriage and parenthood by causing people to not consider marriagement just to be a parent. He later on argues that marriage has been a tradition since the beginning of time and everything supports it. “The family, led by a married mother and father, is the best available structure for both child rearing and cultural health. This is why, although some people will always pair off in unorthodox ways, society as a whole must never legitimize any form of marriage other than that of one man and one woman, united with the intention of permanency and the nurturing of children” (Colson
The American family is constantly undergoing changes. In the early 1600s, the Godly Family was the prevalent family structure of the first Europeans who immigrated to the United States (Aulette, 2010). Until 1780, families were strictly patriarchal with a male head of the family, who supervised “all social activities, including education, health care, and welfare”, and insured the family’s self-sufficiency within its community (Aulette, 2010). Following this form, the Modern Family and its sub-categories, the Democratic Family and the Companionate Family, were the dominant family structures until the 1970s (Aulette, 2010). Throughout the course of almost 200 years, families evolved into more private institutions aside from the community, women withdrew more and more from physical work on the family’s property and concentrated on their designated occupation as a mother, caregiver and housewife. Men were still the head of the family in terms of pursuing an occupation to financially provide for the family’s needs. During this time, gender-specific roles within the family were reinforced, which are still partially in effect in today’s society and family structure. Since the mid-20th century, the American family seems to be changing more rapidly than ever, partially because of the influences of the Great Depression and World War II, which led to the remarkable baby boom of 1946 to 1964. Not only did the year of 1970 mark the beginning of the most recent stage in the history of the (European) American family, the Postmodern Family, it also was the year in which the first gay couple applied for a marriage license (ProCon.org, 2013). Even though the two men’s request had been denied back then, same-sex couples and their family structure h...
She began to explain that both married and unmarried couples have an increased chance of experiencing poverty after the relationships ends. The goal of the MPA as well as family law is focused on the redistribution of economic resources of the family. L’Heureux-Dube understand that failing to recognize contributions made by unmarried couples, they are not getting the respect they deserve. Secondly, she goes on to discuss the decrease in marriage and increase in “common law.” “The reality of modern society dictates a richer understanding of the various forms of familial relations in this country and the shedding of the idea that family life is reserved to one particular conception of what is deemed to be an acceptable family model.” Therefore, there are different family form that can be found within an unmarried cohabitation. If we fail to recognize this ongoing trend and do not provide the benefits then we are discriminating against these individuals. She concludes to say that married and unmarried couples share many similarities the only difference is the contract that the coupled entered
Same-sex relationships have always been a controversial legal issue, and there has been a variety of legal and non-legal responses, coming from a range of different viewpoints regarding the issue. In recent years, there has been many law reforms recognising same sex relationships, which include changes to Medicare, tax, social security, superannuation, worker’s compensation, child support, and allowing people in same-sex relationships to adopt children. These legal reforms come about as a result of extensive lobbying by non-government groups and organisations designed to promote the recognition of same-sex relationships in Australia.
The Family Law Legislation Amendment Act of 2011 and whether it has Reduced Violence and Abuse for Women and Children
Second parent adoption is an important tool utilized by same-sex couples in an effort to protect their parental rights in states where same sex marriage is not recognized. Although gay and lesbian paren...
...ould not adopted him”(McKinley). Many same-sex couples live in fear if they do not have adoption papers, because their parental rights might be questioned if they were to travel where same-sex adoption is not allowed. Or if the child was to be an accident the non-legal parent would not have a say in the child's medical health.
In this day and age there are many variations of what constitutes a couple or family in comparison to many years ago. Long ago the idea of a ‘nuclear family’ was considered the norm; it consisted of the conventional husband, wife and children . But as our society progressed through the years this definition became less conventional and criticisms were made, this definition of ‘family’ did not account for gay unions, soul parents nor did it acknowledge the prevalence of extended family. The definition of family has changed over time, as have the socially defined roles of mothers and fathers. Within these varied family units, situations occur in which divorces and separations take place and a lot of the times these tricky situations may involve children, which can make an already tricky situation even more problematic. There are pieces of legislation which are in place which aim to protect the best interests of a child during the time their parents are going through divorce but sometimes these avenues can be more problematic and ultimately destroy unions whereas other avenues of dispute resolution such as mediation, albeit with its own criticisms, helps to keep relationships afoot in that it provides an opportunity for peaceful and mutual agreements to be made in a more laid back environment.
Marano, Hara Estroff. "Children of Divorce: 25 Years Later." USA Weekend. Sept. 15-17 2000: 16-17. SIRS Issues Researcher. Web. 04 May. 2014.
Family Law (Law Express) 2th edition, by Jonathon Herring, published by Pearson Education Limited 2009
It's 2015, same sex marriage is legalized in the U.S., yet not all adoption agencies allow homosexual couples to adopt. It is only allowed by law to have homosexuals in a joint adoption in 11 states. Adoption has been around since the 1920’s and has been a way to help orphaned children become a family. Not everyone is willing to adopt, whether it is because they don’t want a child, or they have children of their own, and it is not in their budget to adopt another. In the end, there is still a large number of orphaned children hoping and waiting for a chance to be loved and welcomed by a family.
The family is the main agent of socialisation and an institution. (Giddens, 2013:339). As children, we rely on our family to fulfil basic needs. We all need guidance, and more importantly we also require nurturing to become healthy adults. The definition of family varies across cultures. However, the family is sensitive to change and, therefore, not static. The structure of the family has changed, and culture and society are now more accepting of the fact that people now choose to cohabit, rather than marry. (Haralambos & Holborn 2009:3). In 2013, there were nearly 1.9 million lone parent households with dependent children in the United Kingdom; a figure which has steadily increased over the years (Office of National Statistics 2013). The rise in lone parents has brought about greater acceptance of pregnancies that do not have to involve marriage although acceptance is not the concern. A study suggests that….
In the light of changes to the law over the past forty five years, in Hyde v Hyde Lord Penzance argued that, ‘’a marriage may be defined as the voluntary union for life of one man and one woman to the exclusion of all others’’, this has enshrined in the Matrimonial Causes Act . This argument requires a critical discussion in the light of the above case including statutes, case law, changes in society, public opinion, Human right and same sex marriage.
The recognition of same-sex marriage is a political, social, and religious issue. Because of this same-sex marriage is a very controversial topic. Legal acknowledgement of same sex marriage is commonly referred to as marriage equality. Many advocates of marriage equality argue that laws restricting marriage to only heterosexuals discriminate against homosexuals. On the other hand advocates against same-sex marriage argue that it would undo long-standing traditions and change the meaning of marriage in a damaging manor. In this essay I will be arguing for same-sex marriage. The arguments mentioned as well as others will be discusses throughout this paper.
Article 41 of the Constitution identifies the rights of the family (based on marriage) (Cronin and Duggan et al., 2013, p 28-33) and identifies the state as the primary unit in society. The State promises to protect the family and guard the establishment of marriage, on which the family is established. According to the Supreme Court Article 41, which states the rights of the family, sees the family only based on marriage and therefore only the marital family is thus entitled to the protection and guarantee of Articles 41 and 42 (The Case for Constitutional Change, 2007). Article 42 declares that parents have an “inalienable right and duty … to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children”(Cronin and Duggan et ...