Changes only make things worse, so for me it’s a No/No
THE trouble with buying a pig in a poke is fairly obvious: you’ve no idea what you’re going to end up with. That’s why I’ll be voting ‘No’ on Friday to the so-called family amendment that seeks to expand the State’s current recognition of the family as founded on marriage to one ‘founded on marriage or on other durable relationships’, whatever they are.
I also intend to vote No in the care referendum because it’ll make precisely zero difference to anybody’s life, just like the ‘women in the home’ provision it seeks to replace has done down the decades. It’s just another example of woke virtue-signalling (we really, REALLY care about people) by the dominant ‘right-on’ wing of the Government.
First, the family amendment: This extraordinarily imprecise wording is, in effect, an example of the Government and the Oireachtas simply abandoning their duty to legislate. The result, if this amendment passes, will be judges doing the legislating. And that’s precisely the kind of judicial activism the Constitution was designed to avoid. TDs and senators make law; judges judge and interpret. Simple as.
UNDOUBTEDLY those behind the family amendment are wellintentioned, motivated by the manifest and multiple injustices caused down the decades by the precondition of marriage for a family to be recognised as such. And so unmarried fathers who genuinely wanted to be involved in the lives of their children were until recently harshly discriminated against on the simple basis that they hadn’t a marriage cert in their back pocket.
The most notorious of these was the tragic case of London-based Cypriot Leontis Nicolaou who was told by the Supreme Court in 1966 that he had no right to prevent the adoption in Ireland of his own little daughter after his former partner, who was from Galway and to whom he was not married, ended their relationship, took the child to Ireland and placed her for adoption in a Catholic home.
Thankfully, however, in the meantime there has been a great deal of progress in assigning rights to unmarried fathers, including provisions in cohabiting legislation. But, as in all matters, more needs to be done to give all fathers equal rights with mothers, subject to demonstrable commitment to the child.
The most pressing duty that falls to those proposing a constitutional amendment is the need for clarity. The 1995 divorce referendum provided commonly understood wording that left no room for doubt. This included the key provisions of any subsequent legislation, such as the time the spouses must have lived apart, that there was no chance of reconciliation, and that proper provision must be made for themselves and any dependants.
This simple wording in 1995 allowed a straightforward debate on issues that were clear.
By complete contrast, the opacity of the family referendum wording is stunning, giving rise to justifiable fears about what it might mean for property and taxation, matters that are inherently bound up with the notion of family, as well as the Exchequer.
So what about, for example, the case of two people with a couple of kids each from previous relationships? They never live together but on agreed terms have a fling that lasts for years, even decades, and they also enjoy holidays and weekends together, although always keeping their children out of it. Is that a durable relationship if the referendum is passed?
And if it is, surely one of them – as a member of a family recognised by the Constitution – would have a claim on the estate of the other in the event of dust returning to dust? Would that person now have a legal right share, like all other full-blown spouses, under the Succession Act?
The answer is, we haven’t a baldy notion. In that event the judges would be called upon to decide, because legislators had been so careless as to insert ridiculous and dangerously inexplicit wording in the Constitution.
Can you imagine the tumult that would cause, not just in respect of a pension fund, or a business or farm that has been in the family for generations, but for the children of the deceased – who in this case died intestate – who may now have to make do with half of their one-third share?
There would also be implications for inheritance tax – involving taxpayers in financial concessions, including perhaps inheritance tax implications for the children of the surviving ‘spouse’.
And there was I thinking that State money matters were strictly issues for the Dáil. Following this referendum it could be down to the judge alone, because the Dáil has washed its hands of the entire matter.
(I won’t even mention former justice minister Michael McDowell’s concern about ‘throuples’, and whether their inter-locking relationship would also be recognised as durable, and hence a family, should the amendment be passed.)
Position 1.01 of referendum drafting is not to make things worse. This family amendment has all the potential to do just that, so as they say, I’m out, voting ‘No’.
In fairness, the care referendum is much less problematic, its only redeeming feature being the unlikelihood that it’ll cause any real damage if passed.
It seeks to remove reference to women’s duties in the home and all that outrageously archaic baloney concocted by a control freak and unmarried squire of the Catholic Church, Archbishop John McQuaid, and one of our founding fathers, Éamon de Valera.
The fact is, the State has never helped women in the home, despite what the Constitution has been saying for all these years. On the contrary.
IN CAHOOTS with bankers and builders, the State has instead deliberately forced women out of the home to support family finances an help pay stratospheric mortgages that now require two substantial pay packets to fund. This is directly in opposition to the current provision in Article 41.2.2 of the Constitution which says the State shall ‘endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’. Clearly, they were having a laugh.
So all that rubbish is going to go if the care referendum is passed, and good riddance. The right thing would have been for Leo Varadkar and the do-gooders to leave it at that and move on. But instead they’re proposing to insert a new provision recognising the care given by members of the family (we’re back to durable relationships?) to each other ‘and shall strive to support’ such care. Question: where can we cash that?
This is another example of a touchy-feely Government attempting to pass off a bogus and empty commitment as something tangible. It’s not, because it’s a falsehood, proven by all that bitter experience dating back to the original promise to protect mothers in the home.
So, on that basis – and on the ‘fool me once, fool me twice’ principle – I’m out. I’m voting ‘No’ in the care referendum as well.