Mary Seery Kearney (Fine Gael) | Oireachtas source

I thank the Cathaoirleach. I thought for a horrible moment I would not get a chance. I have heard both men and women represented here today.

When we look at the Constitution, we must consider that it is the overarching document by which the Supreme Court has to make decisions in the interpretation of legislation. Therefore, any legislation that goes through this House gets the presumption of constitutionality. However, that presumption has to be tested in the court and yesterday we saw that. We saw a situation where a piece of it was tested and found to be wanting in its scope. The Supreme Court has to view things through the confines of the Constitution in whatever way the Constitution sets out and within the parameters as set out and voted on by the people of Ireland. Therefore, what it says is really important because anything that we put through this House could ultimately have its constitutionality tested in the Supreme Court. We have had situations like yesterday's decision where a blatant injustice is tested and articulated to the Supreme Court, and the Supreme Court made a very good and comprehensive decision in that regard. However, it did not do it with the definition of family and marriage because it is not there. It had to be creative.It had to find another route to justice.

The Supreme Court should not have to do that. Any of us looking at that case yesterday would have said that man should have had the financial support of the State, and we will still have to legislate for him to have it because yesterday did not mean he is a cent richer today - he is not. The Supreme Court had to look at it through the lens of the equality of children, which is a recent amendment to the Constitution, and the rights of a parent or the obligations and duties of a parent. It looked at it through that relationship, not through the horizontal relationship of him to his partner of 20 years. We have to think about the fact the Constitution sets the boundaries upon which the Supreme Court can make decisions. Yes, it does point to where there are lacunae and gaps and it will challenge the Legislature to say that it needs to take action, but it is still confined and does not have the latitude to speak justly to a situation if it is not there in the Constitution.

What we have never had, to my knowledge, although I stand to be corrected, is somebody who goes on and says that the corollary of yesterday's decision is along the lines of “I am married and, therefore, I should have this right and nobody else should.” That would just not be something that would go to the Supreme Court. However, we stand at risk of something like that happening if we do not amend the Constitution. If we do not broaden the definition of family, we stand to have that elevated hierarchy of the institution of marriage standing and being the reason for injustice to other families.

That does happen. The State does go in and argue that particular instances in front of it are not deserving of the constitutional protections of the family. The unenumerated rights within the Constitution require that kind of interpretation. With regard to a family's right to privacy, they do not have it if they are not a constitutional family. We need to address this. We need to ensure that the Supreme Court has that scope to include all permutations of family.

While, in 1937, it was perhaps unimaginable to have families not founded on marriage, the fact is that, today, a lot of children are born without their parents being married, and we heard yesterday the percentage is 42%. They have enduring relationships. Mr. O'Meara was in a relationship for 20 years. There is no less of a commitment and people do not necessarily feel they have to be married in order to have committed and durable relationships. If we look at the implications of what we mean by durable relationships and if we look back to the Children and Family Relationships Act, we see that it contains criteria on living together for guardianship and on circumstances of cohabitation. There are signposts there as to what we mean by durable relationships. It is to be obtuse to say that it can be stretched beyond possibility. I stand as a mother of a child, and even when this comes in, we will not be considered a constitutional family, and we will require legislation to do that.

We need to consider the consequences that flow from making this change. The first one that strikes me concerns the Family Home Protection Act 1976, which defines the family home as a dwelling in which a married couple resides. Where two people buy a home together or have a home together, where one contributes and it might be in the other’s name, we need to ensure that that family home is protected whether it is founded on marriage or not. On that note, being married does not guarantee someone the assets out of the marriage in the situation of the dissolution of that marriage. There are many circumstances, which were well articulated by Senator Ruane, where no maintenance is paid, where access orders are not honoured and where people blatantly give up jobs. Through counselling over the years, counselling of women in particular, I know of situations where men gave up their jobs to be assured they would not be found to have to contribute towards the mortgage and where families found themselves destitute due to deliberate acts of badness. They were married but it did not protect them from that at all.

I do not do family law because the immorality of some of the actions by people in the break-up of relationships is just so horrific. I think I was briefed once, and I shouted at my client because I found him abhorrent. It was not for me.

There are decisions that have to be made. We need to consider the scope and amend social welfare and a whole heap of things regarding pensions, access and assets. All of that needs to be done. If we look at the pure definition of durability, it is to be able to withstand wear and pressure and to be hard-wearing. There is a longitudinal view of it. We cannot be casual about it. We need to interpret it with sensibility. There are things there that give us all the signposts we need for how this will be interpreted but any clarification from the Minister would be useful and good.

I am old enough, just about, to remember when the Berlin Wall came down - that is how old I am. It was 30 June 1991 and that day has been a national holiday in Hungary since then. It was the day the last member of the Soviet army left Hungary and went back to Russia. That day is a national holiday in Hungary because it was such a significant day in their history. It would have been unthinkable at that time to imagine that the day would come when the Prime Minister of Hungary would block aid to Ukraine in the face of Russian hostilities against that country. It would have been unthinkable over the years, given the progress there, that Poland would start moving against LGBT people. It would have been unthinkable that a member state of the European Union would undermine its own Supreme Court and the rule of law. All of these things in Hungary and Poland were utterly unthinkable and we do not know what the future holds.

The worst-case scenario for me, as a member of Fine Gael, is not necessarily a Sinn Féin government; it is a right-wing government in this country. It is all of those prospects and possibilities that come around through the manipulation of people through social media. There are unthinkable sites of arson around our country. Having a Constitution that is robust and reflects the values of our people at a time when we are inclusive, generous and progressive is very important and it means the undoing of that cannot be simply done by any permutation of a future government in our country. The fact that it has to go to the people to change the definition of family is very important and it would have to go to the people again if ever we were to take an extreme right or left turn.

This is something that we need to do and we need to do it urgently. We need to reflect family as we know it in our country. It needs to be elastic. The durability needs to be elastic to reflect family as we know it to be and as is the lived experience across all of our society. I support this absolutely.

As regards NGOs, I do not know what sort of committees Senator Mullen sits on.