The perils of cohabitation: the unmarried father's struggle for rights in Ireland.

• Published date: 22 September 2010
• Author: Burkhardt, Jackie M.
• Date: 22 September 2010

I. INTRODUCTION

This Note enumerates the legal struggles of unmarried fathers in Ireland to gain equality of treatment in relation to their biological children in custody decisions, and the traditional and conservative forces at work in Ireland that keep those fathers from guardianship and custody

of their children. The creation of Ireland's family law system has largely been a product of the unique social and political forces at work in the country.

Most of the laws in place in Ireland are the result of its conservative Constitution, (1) and while Ireland's economy and people have modernized, its Constitution and laws lag behind. As a result, only as recently as 1996 did Ireland finally legalize divorce, (2) and only in 2007 did Ireland's courts produce a landmark case regarding the rights of fathers in child custody cases. Beginning with an in-depth study and discussion of the historical development of Ireland's child custody law through its Catholic influence and constitutional, statutory, and common laws, this Note will outline the state of the conservative law as it stands in relation to the rights of unmarried fathers. Following this, an analysis of the landmark 2007 case of T. v. O. (3) will suggest a readiness for a more progressive approach to Irish domestic law through the international documents that allowed the court to reach its momentous decision. This discussion will be followed by proposed solutions that focus on the alternative child custody regimes of other deeply religious countries such as Canada and Portugal, and will consider the implications of a more progressive approach to the rights of unmarried fathers.

II. HISTORY

The Irish legal system is a common law system that traces its origins to England. (4) As such, most of the policies in place today are a reflection of the Constitution, statutes, and common law decisions by judges. The court system in Ireland is structured similarly to that of the United States, with a district and a circuit court, followed by a high court and a supreme court. (5) The circuit court has jurisdiction over family law matters, including child custody and guardianship issues, under the statutory provisions of the Guardianship of Infants Act of 19646 and the Status of Children Act of 1987. (7) The legal framework that was created, as control of the political and social landscape of Ireland changed from England to an independent country, shaped the way in which Ireland's laws reflected the conservative social values of the time.

A. The Role of Catholicism

Catholicism has played an overwhelming role in the development of Irish law in general, particularly in the manner in which individual and private rights are defined in the main social institutions of the country and of the law. (8) Approximately eighty-seven percent of Ireland's population self-identifies as Catholic, and as a result of this longstanding religious tradition, the Constitution, statutes, and common law of the country can be seen as having a Catholic slant in terms of policy. (9) For instance, the Catholic Church strongly opposes divorce, and the Church's influence on Irish legislation led Ireland to legalize divorce only after 1995. (10) Further, the constitutional provisions that provide for the family as the central unit of Irish society and those that recognize the Catholic religion as deserving of deference clearly indicate the influence of Catholicism in Ireland. (11)

Certain canons of Catholicism are deeply rooted in the system of family law in Ireland. In the Catechism of the Catholic Church, the article devoted to the Sacrament of Matrimony describes the rigid requirements for marriage, as well as its sacred nature: (12)

                 The matrimonial covenant, by which a man and a woman establish
                 between themselves a partnership of the whole of life, is by its
                 nature ordered toward the good of the spouses and the procreation
                 and education of offspring; this covenant between baptized persons
                 has been raised by Christ the Lord to the dignity of a sacrament
                 (13)
                

This Sacrament firmly establishes that the primary reason for marriage is procreation, and demonstrates the central importance and dominance of the traditional family unit in Catholic teachings. In relation to divorce, the Catechism states, "[T]he matrimonial union of man and woman is indissoluble: God himself has determined that 'what therefore God has joined together, let no man put asunder.'" (14) This intense Catholic influence has affected Ireland immensely as is shown by the late legalization of divorce and the continuing trend of favoring the family unit over the individual. (15) Overall, the "Church defines the family as the first unit of society whose mission is to be 'the sanctuary of life,'" and that "the family is a basic unit on which all other social institutions depend." (16)

In custody decisions before a court, when an unmarried father is applying for custody of his child, the judge uses the standard of the "best interests" test to determine what is appropriate for the child. (17) In these decisions, the courts have ultimately given significant attention to the religious upbringing of the child, and are "anxious not to disturb [its] religious and moral formation." (18) The reliance by judges on the religious upbringing of the child as a dominant factor in a custody decision clearly reveals the tight hold on social policy that the Catholic religion continues to maintain.

B. The Irish Constitution

The current Irish Constitution was enacted in 1937 to replace the 1922 Constitution of the Irish Free State. (19) It retained the separation of powers between the legislative, judicial, and executive branches that existed in the 1922 Constitution, (20) and instituted individual rights for the citizens of Ireland. (21) In the family law context, the 1937 Constitution recognized the family as the most important unit in the country. (22) It states, "[T]he Family [is] the natural primary and fundamental unit group of Society, and [is] a moral institution." (23) Furthermore, article 41 describes the family as the "basis of social order and as indispensable to the welfare of the Nation and the State." (24) Notably, the Constitution reaches further into the personal sphere by detailing the role of women as mothers, and pledging not only to guard the institution of marriage, but also to protect the woman's role in the home. (25) This conservative approach to the family and its importance to society manifest themselves in the regard courts give to family law issues including divorce, child guardianship, and custody. (26)

Ireland did not legalize divorce until 1996 after a narrowly won referendum. (27) The Irish Constitution, influenced heavily by the values of the Catholic religion, did not recognize divorce as a legal proceeding until the referendum forced a constitutional amendment. (28) Divorce a mensa et thoro or an annulment of the marriage were the only legal methods of separation prior to this amendment. (29) Currently, divorce is only allowed where the spouses have lived apart for at least four years, there is no reasonable prospect of reconciliation, and provisions have been made for the children or the spouses. (30) This harsh standard has been strictly applied in Irish courts, as the more conservative judges and politicians attempted to recognize the modernization of family law. The strict divorce laws have a sizable effect not only on the way courts consider child custody cases, but also on the way in which individuals choose to socially orient themselves. (31) More couples in Ireland are choosing alternative familial arrangements, including the most popular option of mere "cohabitation," instead of marriage. (32) Although this is a good solution for couples who are unwilling to go through the problems of marriage and divorce in strictly conservative Irish courts, it has obviously caused problems for the children of these arrangements when their parents choose to part ways. (33)

Nevertheless, it is clear through article 41 of the 1937 Constitution that mothers have a special role in relation to their children that is inalienable and indispensable. (34) Although all fathers, married or unmarried, also have an inalienable right of guardianship, the rights of unmarried fathers to their children are less certain. (35)

C. Statutes

The Guardianship of Infants Act of 1964 ("Guardianship Act" or "Act") constitutes the legislature's primary attempt to deal with the rapid rise in child custody disputes. (36) Although the Act states that both the mother and father are the de facto guardians of their child, in the case of an illegitimate infant, only the mother has guardianship rights over the child. (37) This statute leaves the father of the illegitimate child noticeably without rights. (38) Guardianship, however, must be distinguished from custody. (39) Guardianship includes only the fight to determine large scale decisions about the child, but custody includes the day-to-day care of the child's everyday needs. (40) Notably, the court has jurisdiction to appoint and remove guardians of the child; this can be done in a number of ways, including petition to the court or a formal contractual agreement between the two parents. (41) The Status of Children Act of 1987 amended the provisions regarding unmarried fathers slightly. (42) The amendment recognizes the court's ability to appoint the father as guardian of the child either by the consent of the mother or by the court alone, as long as the father is formally registered as the child's father. (43)

In applications for custody, rather than guardianship, the situation for unmarried fathers is even more difficult. Although the courts do not recognize the child as a "juristic person with individual rights," the courts do consider the child's welfare in all cases of custody rights. (44) The High Court in G. v. An Bord Uchtala held that the unmarried mother has a natural right to the custody...