AG: No certainty on courts and durable relationships

The attorney general told minister for children Roderic O’Gorman, “It is difficult to predict with certainty how the Irish courts would interpret the concept of ‘other durable relationships.'"

He made the remarks in unpublished advice to government ahead of tomorrow's two constitutional referenda.

The proposed constitutional amendment, which has been the subject of intense debate over recent days, says that in addition to marriage, the state would recognise families founded on “other durable relationships”.

Meanwhile the attorney general’s advice to government contradicts O’Gorman’s claim in an interview last month that areas such as social welfare and family law would not be impacted by the family amendment.

Fanning also warned O’Gorman that the amendment would likely lead to increased litigation against the state but that areas such as immigration and non-monogamous relationships were unlikely to create significant difficulties.

‘Heavily litigated’

In unpublished advice to minister Roderic O’Gorman, attorney general Rossa Fanning warned that there was uncertainty around how the courts would interpret the meaning of a durable relationship.

“In the absence of clear guidance within the constitutional text or by way of legislation, it is difficult to predict with certainty how the Irish courts would interpret the concept of ‘other durable relationships,’" wrote Fanning to O’Gorman on 8 December, 2023.

“The courts may well address the question of what constitutes a ‘durable relationship’ on a case-by-case basis, having regard to the facts and circumstances of the particular case and the evidence before it,” added Fanning.

O’Gorman claimed in an interview with the Irish Independent last month that family, immigration and social welfare laws would not be affected by the amendment.

“The very clear legal advice we’ve received throughout from the attorney general is that these items (family, immigration and social welfare laws) will not be impacted by what we’re proposing to amend in the Constitution,” said O’Gorman in the interview on 24 February.

This position however is not supported by Fanning’s advice to O’Gorman.

“Policymakers will be required to offer greater weight to the rights of the non-marital family, including in child care, immigration and social welfare. It is likely that issues relating to the application of Article 41 to non-marital families will be more heavily litigated than at present, for example it is foreseeable that the provision will be relied upon in the context of immigration and surrogacy,” wrote Fanning.

The attorney general said in his view the amendment’s effect on immigration would likely be insignificant.

“As referenced above, it is foreseeable that the amended Article 41.1.1° will be relied upon in the context of immigration. However, in my view, it is unlikely that it will have any particularly significant effect in this area,” he wrote.

Fanning also warned O’Gorman that some commentators would, wrongly in his view, claim that non-monogamous relationships came within the ambit of the proposal.

“There is a risk that the use of this phrase could be distorted by some commentators so as to argue that, for example, polygamous relationships are included within the scope of the provision, which is not the policy intention,” he wrote.