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Case Law and Article 41.

2 of Bunreacht na hEireann
I had initially created this document as a small part of my research scoping for
my feminist judgment of MhicMathuna v Ireland (open access version here) in
Julie Candless, Mairead Enright and Aoife O’Donoghue, Northern/Irish
Feminist Judgments: Judges Troubles and the Gendered Politics of Identity
(Bloomsbury, 2017). The document is now updated to 11 July 2018. Apologies
if there are any errors or omissions (do let me know and I will update!)

Article 41. 2

1° In particular, the State recognises that by her life within the home, woman gives to
the State a support without which the common good cannot be achieved.

2° The State shall, therefore, 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.

Law and Equality

1. de Burca v. Attorney General [1976] I.R. 38 (women on juries)

At. p. 61, O’Higgins CJ (dissenting) attempted to utilise Article 41.2 in justifying the
near exclusion of women from juries.

“When one considers the special recognition of women and mothers in Article
41 of our Constitution, it does not appear inappropriate that the State in its
laws should give some preference to woman . . ."

Walsh J. in this case stated (at p. 70),

“It is undoubtedly true that the Constitution, in dealing with the family, draws
attention to and stresses the importance of women's life within the home and

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makes special provision for the economic protection of mothers who have
home duties . . ."

However, Walsh J. noted that women are present in all facets of professional life,
and this Article cannot justify invidious discrimination against women.

2. T’OG v Attorney General [1985] I.L.R.M. 61 (adoption, discrimination,


widowers)

The Attorney General attempted to argue that the differences in laws between
widows adopting children and a widower adopting children could be justified under
Article 41.2.1. McMahon J. (at p. 65) rejected this argument, noting,

“The article recognises the social value of a mother's services in the home but
that does not involve a denial of the capacity of widowers as a class to be
considered on their merits as suitable adopters.”

3. McKinley v The Minister for Defence [1992] 2 I.R. 333 (loss of consortium
for wife)

The majority of the Supreme Court extended the loss of consortium damages
grounds to a wife. Hederman J. relied in part of Article 41.2.1, in stating:

“While Article 40 of the Constitution ensures that all persons shall be equal
before the law, Article 41 underlines the particular status which is attached to
marriage. That status attaches to the woman by virtue of Article 41, s. 2,
perhaps even to a greater extent than it attaches to the man. This case,
therefore is not based on a question of a discrimination in favour of men pre-
dating the Constitution but rather, in my view, it is based on the status which
the Constitution gave to marriage and to married women in particular. It
seems clear to me that Articles 40 and 41 should be construed in accordance
with the statement contained in the Preamble to the Constitution that the
People gave to themselves the Constitution in order that amongst other
objectives "the dignity and freedom of the individual might be assured.”

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Law and Marriage

1. H.A.H. v. S.A.A, and The Attorney General and S.A.H.(Notice Parties)


[2017] 1 I.R. 372 (polygamous marriage and public policy):

Article 41.2 simply included within the Court setting down the totality of the
provisions of Article 41. No real engagement with issues under Article 41.2.

2. Zappone and Gilligan v Revenue Commissioners, Ireland and the


Attorney General [2008] 2 I.R. 417 (recognition of same-sex foreign
marriage).

Article 41.2 simply included within the Court setting down the totality of the
provisions of Article 41. No real engagement with issues under Article 41.2.

3. A.F. v. S.F. [2007] 4 I.R. 326 (agreement to marry, maintenance for non-
marital child).

Abbot J. stated (at p.330) that Article 41.2. does not necessarily exclude those of
non-marital families,

“the role of the woman in the home and the mother is not described with
reference to the family and it is arguable that Article 41.2 applies to a woman
or mother in the home, whether that child is a marital child or not.”

At p.332, Abbot J. stated,

“the constitutional principles regarding the guarantees for marriage and the
marital family are to be tempered by the need to ensure that non-marital

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children are nurtured without diminishing the guarantees for marriage and the
marital family.”

4. D.T. v C.T. [2002] 3 I.R. 334 (divorce and ‘proper provision’).

Murray J. stated that while the language of Article 41.2 was dated, it recognises that
the caring done by a ‘parent’ is “indispensable to the welfare of the State “by virtue of
the fact that it promotes the welfare of the family as a fundamental unit in society” (at
p. 407). Murray J. continued,

“…in ensuring that proper provision is made for the spouses of a marriage
before a decree of divorce, the courts should, in principle, attribute the same
value to the contribution of a spouse who works primarily in the home as it
does to that of a spouse who works primarily outside the home as the
principal earner.”

5. M.K. v. J.P. (otherwise S.K.) (Divorce: ancillary relief) [2001] 3 I.R. 371.

McGuiness J. stated the clean break divorce is not provided for in Irish law. This is in
line with the constitutional requirements as regards divorce, as well as being in line
with Article 41.2 “ and the statutory guidelines, has been to give full credit to the
wife's contribution through her work in the home and as a mother to her children.”

6. G v G. [1984] 1 I.R. 368 (foreign divorce, maintenance)

Article 41.2 mentioned but not engaged with.

7. McGee v Ireland [1974] 1 I.R. 284

Mention of Article 41.2. as a whole, but nothing much in the case other than
confirming the contents of this Article.

8. In the Matter of the Estate of Haden Crawford Caffin (succession,


conflict of laws, divorce) [1971] 1 I.R. 123.

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Mention of Article 41.2 but no real engagement.

Law and Surrogacy

1. M.R. and D.R. (minors suing by their father and next friend O.R.), O.R.
and C.R. v. An tArd Chláraitheoir, Ireland and The Attorney General,
Respondents And L.L., Notice Party, and The Equality Authority and The
Irish Human Rights Commission, Amici Curiae [2014] 3 I.R. 533
(surrogacy and mater semper certa est)

Denham CJ (at paras 63-66): There is no one constitutional definition of “mother”.


The definition of “mother” under Article 41.2.2 of the Constitution “would include
mothers who are neither the gestational nor genetic mother of the child.” McKechnie
J. argued that the concept of ‘mother’ is not necessarily limited to the constitutional
family under Article 41, relying on O'Flaherty J. in L. v. L . [1992] 2 I.R. 77 at p. 112.
At para. 339, McKechnie J. states:

“It is not altogether clear what this provision means or why there should be
such a sharp distinction between the terms used for the purpose of describing
the State's recognition of a “woman's contribution” on the one hand and its
duty of endeavour towards “mothers” on the other.”

Law and Childcare

1. U.V. v V.U. [2012] 3 I.R. 19 (permission to remove children to other


jurisdiction).

Mention of, but no engagement with, Art. 41.2.2.

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Socio-Economic Rights

1. Sinnott v Minister for Education [2001] 2 I.R. 545 (provision of education)

Hardiman J. suggested that Article 41.2..1 and Article 41.2.2 only refers to “women”
and “mothers”, and stated at p. 691,

“It would clearly not be possible, in the absence of statutory provision, to


import into this wording a constitutional obligation to make proper provision for
a person who is neither a spouse nor the child of a spouse.”

Denham J. (at pp. 664 to 665-dissenting) noted the negative view of mothers and
wives within the Constitution. However, stated that Article 41.2..1 and Article 41.2.2
did not consign women solely to the home. Denham J. noted the limited impact of
these articles as regards substantive rights provisions for women (noting the cases
of L v L [1992] 2 I.R. 77 and the decision of the Supreme Court in, In re the
Matrimonial Home Bill, 1993 [1994] 1 I.R. 305. Denham J. stated at p. 664,

“…within the family the special benefit given by women in the home, is
recognised. It is acknowledged that that benefit is not just for the particular
home, family and children, but for the common good…. This gives to women
an acknowledged status in recognition not merely of the physical aspect of
home making and family building, but of the emotional, social, physical,
intellectual and spiritual work of women and mothers.”

Denham J. concluded her analysis at p.665 stating that while these Articles do not
confine a woman/mother to the home, “It is a recognition of the work performed by
women in the home. The work is recognised because it has immense benefit for
society.” This was important as (at p.667), “The special recognition given to the role
of women and mothers within the home by the Constitution must be read
harmoniously with other articles of the Constitution”.

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2. MhicMathuna v Ireland and the Attorney General [1995] 1 I.R. 484
(constitutionality of supports provided to unmarried mothers in
comparison with marital family)

Reference made to Articles 41.2.1 and Article 41.2.2. Core underlying argument was
that certain tax advantages/welfare allowances made to unmarried mothers, was an
indivious attack on the marital family. This challenge was rejected in the High Court
and the Supreme Court. There was limited direct engagement with the two articles
mentioned above. However, Finlay C.J. for the Supreme Court did note,

“With regard to the provisions of Article 41 of the Constitution, it is clearly


conceivable that under certain circumstances statutory provisions, particularly
those removing in its entirety financial support for the family, could constitute
a breach of the constitutional duty of the State under Article 41. This is not a
case in which such a total removal of support or absence of support can be
asserted. What is asserted here is that the measure of support over a period
has become insufficient.”

See also, Mhicmathuna v Ireland and the Attorney General [1989] 1 I.R. 504- High
Court decision-however no real engagement with Article 41.2.1 or Article 41.2.2.

3. In the matter of Article 26 of the Constitution and in the matter of The


Matrimonial Home Bill ,1993 [1994] 1 I.R. 305.

The Attorney General attempted to argue for the constitutionality of this Bill, with
limited reference to Articles 41.2.1 and 41.2.2. (see p. 323). The Court did not fully
engage with the issue, seeming to be content that these articles could not remedy
the interference with the constitutional marital family.

4. L v L [1992] 2 I.R. 77 (matrimonial property and ownership)

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Barr J. (at p. 99) in the High Court stated that since a mother in the home gives up
opportunities for paid employment, “her work as home-maker and in caring for the
family should be taken into account in calculating her contribution towards that
acquisition - particularly as such work is of real monetary value.”

At p. 100, Barr J. continued,

“…women without independent means who adopt the role of full-time mother
in accordance with the philosophy of Article 41 receive no credit under
existing law for their labours in the home however devoted they may have
been and for however long they may have continued. It seems to me that if
effect is to be given to the spirit and objective of Article 41 as to the status of
the mother and her crucial role within the family unit, then in assessing her
contribution to the acquisition by the husband of the family home and/or
furnishings at or about the time of or subsequent to the marriage, regard must
be had to the value of her work in the home. It should be measured by the
court in the light of its nature, quality and duration. I take the view that in
making that assessment, the course which the court should adopt is to
measure the wife's beneficial interest in such family property arising out of her
work in the home in percentage terms of ownership as between husband and
wife and, bearing in mind that because marriage is an equal partnership, the
wife's entitlement so derived ought not to exceed 50% of ownership unless
there are exceptional circumstances which justify assessing her beneficial
interest in the family home as being greater than that of the husband.”

However, the Supreme Court overturned this decision. Finlay CJ, while agreeing with
the public policy approach of Barr J. nevertheless noted caution where (at p. 107),

“to identify this right in the circumstances set out in this case is not to develop
any known principle of the common law, but is rather to identify a brand new
right and to secure it to the plaintiff Unless that is something clearly and
unambiguously warranted by the Constitution or made necessary for the
protection of either a specified or unspecified right under it, it must constitute
legislation and be a usurpation by the courts of the function of the legislature.”

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Finlay C.J. continued at p. 108, stating categorically that Article 41.2.1 and Article
41.2.2 provides “no warrant for interpreting that duty on the judiciary as granting to it
jurisdiction to award to a wife and mother any particular interest in the family home,
where that would be unrelated to the question of her being obliged by economic
necessity to engage in labour to the neglect of her duties.”

McCarthy J. at p. 111 stated that the guarantees in Article 41.2.1 and Article 41.2.2
are not necessarily restricted to mothers within a marital family (p. 111). However,
Barr J. attempted to make a constitutional “quantum leap” by utilising these articles
to provide a person with a property right by virtue of their status as mother.

O’Flaherty J. (at p 112) stated that these articles could not impact on property rights,
however did note,

“If a mother in dire economic straits were to invoke this Article it would be no
answer for the State to say that it did not have to make any effort in her regard
at all, though it would be open for it to say that it was doing its best having
regard to the State's overall budgetary situation.”

Egan J. states (at pp114-115) that Article 41.2.1 cannot be seen as providing a
property right to a ‘mother’. No positive obligation emerges from Article 41.2.1. but
rather “[i]t voices a "recognition" and, in my opinion, is really a prelude to explain the
positive obligation in [Article 41.2.1] which provides that the State shall, therefore
,endeavour etc. (emphasis in original).

5. Hyland v Minister for Social Welfare [1989] 1 I.R. 624 (social welfare,
equality, marital family).

Articles 41.2.1 and Article 41.2.2 arose incidentially in these cases. Barrington J.
stated (at p. 639),

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“The obligation cast on the State by Article 41, s. 2, sub-s. 2 does not appear
to be of the same order. Of course the duty placed on the State by Article 41,
s. 2, sub-s. 2, like all constitutional duties, is important but it appears to be a
duty of imperfect obligation and would not justify the State breaking the
pledge it gives under Article 41, section 3.”

The provisions were not engaged with on appeal by the Supreme Court.

6. H. v. H, ex tempore unreported judgment of Barrington J., 20 June 1986


(family home)

Barrington J. stated (obiter) that

“the courts should recognise the contribution the wife makes by her work as a
carer and rearer of the family within the home, because it appears to be quite
inconsistent with the values in Article 41 in the Constitution that the wife, who
leaves the home and has an independent income and is therefore able to
make a financial contribution towards the repayment of the family mortgage,
might, at the end of the day, be in a very much better position than the wife
who fulfils the constitutionally preferred role and remains at home to rear the
children. That seems to me to be an inconsistent conclusion and inconsistent
with the principles of Article 41. My judgment does not turn on that.”

7. Dennehy v Minister for Social Welfare, ex tempore unreported judgment


of Barron J., 26 July 1984.

Barron J. accepted the argument of the State, that Article 40.1, coupled with Article
41.2, provided a basis for provision of a payment to “deserted wives”, but not to
“deserted husbands” . This did not result in unconstitutional discrimination against
the applicant who was a deserted husband. There was significant basis, according to

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Barron J. in law and policy to justify payment to a deserted wife, but not to an equally
deserving “deserted husband”.

8. Muckely v Ireland [1985] 1 I.R. 472 (Income tax- unconstitutionality-


martial family).

Article 41.2. was mentioned in argument but not engaged with by the High Court or
Supreme Court.

9. Murphy v Attorney General [1982] 1 I.R. 241 (income tax -marital family)

No precise engagement with Article 41.2.

Abortion

1. In the matter of Article 26 of the Constitution and in the matter of the


Regulation of Information (Services out-side the State for Termination of
Pregnancies) Bill, 1995 [1995] 1 I.R. 1 (abortion information)

Cited Article 41.2.1 and Article 41.2.2 but no engagement in the judgment beyond
this.

Immigration Law

1. Danibye Luximon and Prashina Choolun (A Minor Suing by her Mother


and Next Friend Danibye Luximon) v The Minister for Justice and
Equality [2015] IEHC 227 (20 March 2015) (immigration- Article 8 ECHR-
Article 41 Constitution).

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Mention of Article 41.2. but no engagement with its potential impact (if any) on
immigration decisions)

2. O.O, O.E.O, and O.D.O. C.O. and ESMÉ J (so named for the purposes of
this appeal). v The Minister for Justice and Law Reform [2015] IESC 26
(rights of grandmother, deportation from state).

In response to arrguments based on Article 41.2., and the role of the non-Irish
national grandmother, Charleton J. stated (at para 26):

“The woman tending to her children within the home is the mother that is referred to
in Article 41.2: the rights of grandmothers are not thereby constitutionally protected.
The right to educate the child are guaranteed in the text to parents, but are not
guaranteed to grandparents. While there is undoubtedly a natural affection and a
desire to nurture, while passing on the wisdom of age and experience, between
grandparents and their grandchildren, such guarantees as are given in the
Constitution are to the mother and father and to their children.”
Liam Thornton
11 July 2018

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