Posted on
02 April 2009, under
Money & Legal; More Money & Legal articles...
Unmarried Rights
I am often asked by fathers why they are treated differently to unmarried mothers in Ireland - There is no automatic right in Ireland for fathers to care for and bring up their children.
Constitutional Presumption
Under Article 41 of the Constitution the married family is recognised as the fundamental unit group of society, having its rights under natural law that pre date and are superior to positive law. There is a constitutional presumption that the welfare of the child is best protected by the parents as part of the family.
Married Parents retain Superior Rights
The 1980 case of G v An Bord Uchtala could have heralded the start of constitutional change on the rights of the child and indeed redefining of “family” and “parent” outside lawful wedlock. The most significant aspect of the interpretation by Judge Walsh of the independent existence of children’s rights is that he drew no distinction between children of married parents and children of unmarried parents. Yet only five years later Chief Justice Finlay rowed back on that potential expansion when in Re. JH he redefined the rights of the child as a member of the family as referred to in the Constitution ie. The married family only. This clarification by Finlay CJ ensures married parents retain superior rights over the rights of their child.
The current statutory position in relation to fathers under the Guardianship of Infants Act 1964 is that they have an automatic right to be a joint legal guardian only if they are married to the mother of the child. The act defines a “father” as not including the natural father of a child born outside of wedlock. In this situation it is only the mother who has automatic legal guardianship rights.
The De Facto Family
In the recent Mr.G case the High Court for the first time gave recognition to the rights of unmarried fathers in Ireland under European law. Mr. Justice McKechnie, referring to Article 8 of the ECHR found that the couple “constituted at all relevant times, a de facto family within the meaning of article 8”. This case indicates that we ought to have regard to the substance of the relationship rather than the form. Mr. Justice McKechnie set down tests that unmarried fathers may be able to avail of to invoke their rights, such as:
• How long the couple have lived together
• The length of their relationship
• The ways in which the parents showed their commitment to each other
Unmarried Fathers in the United States and Britain
Unlike their married counterparts, unwed fathers in most US states are not automatically presumed to be the biological parent of their children, despite the fact that they may be listed on the child’s birth certificate. The focus in the United States in relation to the birth of children born outside marriage, like other common law jurisdictions, has historically been on the “unmarried mother problem”, essentially ignoring the unmarried fathers.
In Britain, an unmarried father does not have automatic guardianship rights but can acquire “Parental Responsibility” and rights by:
• Subsequent marriage to the mother or
• By being appointed guardian in the mother’s Will if she dies or
• By formal agreement with both signatures witnessed by the Court or
• Through the terms of the Adoption and Children’s Act 2002.
While there may be ministerial consensus in Britain that the distinction between unmarried and married fathers is outdated, legislative change is slow in coming.
Societal changes and technological advances dictate that our traditional concepts and definitions of parenthood and indeed the family unit, need to be amended to reflect modern society.
Rachel McDaid of Legal Line - LegalLine are Ireland's first and foremost legal information telephone service. LegalLine will put your call through to a qualified Solicitor whenever you need legal information without delay. Solicitors are fully qualified, experienced and regulated by the Law Society of Ireland. For further information www.legalline.ie or to speak to a Legal Line Solicitor call 1890 44 0000
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