The Irish Constitution's special protection of marriage needs to be ended, according to leading lawyers and single parent groups. The calls came after a High Court ruling which held that fathers have a prior duty to provide financial care for their marital children over and above any duty to non-marital children.
Karen Kiernan, director of One Family, a group which campaigns for single parents, said the ruling demonstrated that the Constitution discriminated against non-marital children, and needed to be changed.
Geoffrey Shannon, a leading family lawyer who has advised the Ombudsman on Children, agreed, saying that the ruling illustrated that the law permitted “real discrimination in favour of the children of married parents”.
The High Court case concerned a Circuit Court order made in November 2007, which required the man at the centre of the case to pay €500,000 to enable the mother of his child, born outside marriage, to buy a house. He was also ordered to pay €1,200 a month in maintenance for the child.
The father appealed the ruling to the High Court, where Mr Justice Sheehan upheld it last month. He quashed the order to pay the lump sum of €500,000 but upheld the requirement to pay €1,200 in maintenance.
The court found that the Constitution did not allow courts to make a property adjustment order in favour of a non-marital child, where the non-marital father already has a wife working in the home looking after dependent children.
The case concerned a child born in 2000 to a father who had separated from his wife, with whom he had three children. He lived with the child's mother from 1999 to August 2002 and from August 2003 to June 2004. The man also has another non-marital child.
At the time of the hearing in July and October 2008 the sole source of income for the father was rental income from the property company he ran with his estranged wife, who was a notice party to the proceedings.
His assets were estimated at €1,869,000 including a pension worth €366,994, and his share of the rental income was €35,000 a year, though his assets were written down by 10 per cent in the light of the current economic circumstances.
He had made €175,742 from a previous transaction, much of which was spent over the past four years.
Mr Justice Sheehan said it was clear he would have to return to work.
The mother at the centre of this case had steadily built up her singing career, from which she earned €19,000 in 2007, and was “heading for a significant increase” in 2008. She also had lone parents’ and children’s allowance, giving her a total income of at least €35,000.
The judge found that since the Circuit Court hearing there had been a marked improvement in the mother’s financial position, and a marked decline in the value of the father’s assets. The mother had sought a property adjustment order in favour of herself and the child, arguing that the Guardianship of Infants Act of 1964 allowed for it. She also sought a carer’s allowance to be paid to her, as well as maintenance for the child.
Article 41 of the constitution says the state will protect a family based on marriage and that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
Lawyers for the singer cited a case in which the 1964 Guardianship of Infants Act allowed a court to award a lump sum for the purchase of a house for the benefit of a child. Mr Justice Sheehan, however, said that case was different “on the fundamental basis that it concerned parties who were married”.
He ruled that, in accordance with the constitutional protection of the family, the Circuit Court had no jurisdiction under the 1964 act to award a lump sum for the provision of a house for “non-marital children”.
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(Source: CIN)