Ireland Sheltering the Homemaker in Irish Family Law: Ireland's Failure to Evolve with the Shifting Social and Family Norms

Summary

INTRODUCTION

Family law in Ireland is premised upon absolute respect for the marital family. The family is accorded an elevated status in the Irish Constitution, where it is expressly regarded as a unit that is superior to all positive law with inalienable and imprescriptible rights. This marital union is founded upon the express constitutional preference for the wife and mother to remain in the family home to fulfil her duties to the family as a whole. Article 41.2.1 of the Irish Constitution critically outlined below, obliges the state to take the steps necessary to ensure that no woman is forced through economic necessity to work outside the home. The normative importance of the married family in Irish society simply cannot be overstated, and this absolute preference for the family unit founded upon marriage has in turn hugely influenced the state's approach to regulating marriage breakdown. Whilst facilitating the remedy of divorce, the state has retained this protectionist approach and has enacted a statutory framework which normalises life-long interdependence, placing such financial obligations on the breadwinner (former) spouse, making it impermissible to seek or secure individual financial freedom. As a means of influencing social policy and directing individual behaviour and choice, Irish lawmakers have elected to permanently protect the homemaker rather than mandate any expectation of, or right to post-divorce independence.

In creating the necessary legal framework which operates to dissolve the union, lawmakers have resolutely maintained this marital fiction by refusing to permit any scenario where spouses can be deemed to have definitively severed their financial ties, thereby insulating the position of the homemaker, irrespective of the individual financial circumstances of the former spouses. These deep rooted inter-spousal obligations exist to incentivise marital commitment and serve to ensure the imposition of entitlements should the parties divorce. This community, lifetime-based, view of financial obligations maintains an expectation of inter-spousal responsibilities post-divorce, creating a marital union that is not necessarily binding, but a financial commitment that is. The heterogeneous nature of modern Irish family life mandates that Irish family law move away from its long held aspiration of a family based on heterosexual marriage with idealised gender-specific roles.