Deputy Marian Harkin, on behalf of the Independent Group.

When I spoke on the family referendum in the Dáil a few weeks ago, I agreed that we need to widen the definition of the family in the Constitution to include, for example, one-parent families, non-married families, grandmothers and grandchildren and so forth. Like many others who spoke in the Dáil that day, who were mostly women I might add, while supporting the aspirations of the amendment, I had considerable difficulty with the term "durable relationships".

Relationships are complex and unique. One person's idea of a durable relationship might be living together for a year or two to see how it works out. The understanding of what is a durable relationship is hugely influenced by a person's expectations, hopes, beliefs and dreams. It emanates as much from the heart and gut as it does from the head. One reporter writing in a daily newspaper said:

I’ve been in a number of durable relationships. Only two of them ended in marriage. Did I love the other people in those relationships? Sure. For those years of commitment. Would I attest to it in a court? At the time, yes. Now, no.

Therein lies the difficulty. When durable relationships end, what happens to the rights of the adults and children in that family and if there are several durable relationships, how are rights adjudicated? Now the State is stepping in and without any legal framework is according the status of family to all durable relationships, which is fine. However, the very least we owe ordinary men, women and especially children, is some kind of legal framework under which they will have some protection they can rely on for their rights and protections as a family. For example, how can people say to Revenue that they are in a durable relationship, in a family, and that they want the same tax treatment as other families? If Revenue objects, will they have to go to court? Will Revenue just say it is fine? How can people have clarity about succession rights and claims to property ownership if the status of their family, based on a durable relationship - this is crucial - can only be decided retrospectively by the courts when there is a dispute. These are real, everyday issues that people are bringing up with me and I have no answers other than to tell them they may have to go to court.

Thank you, Deputy.

I await the Tánaiste's answers.

Why did the Government not trust this House to give some legal framework or guidelines to those who wish to assert their family status by means of a durable relationship?

I thank the Deputy for raising the issue. We have a constitutional framework and a legal framework that the Oireachtas has provided through a variety of laws. I will deal with the latter in a moment.

On the constitutional front, the term "durable relationships", as the Deputy correctly said at the outset of her contribution, is about including couples with or without children, single parents and their children and grandparents raising children. Some 42% of children born in 2022 were born to an unmarried couple. Therefore it is important that the Constitution reflects that reality. People are broadly supportive of that.

The Deputy asked where the protection is. The existing text of the Constitution provides guidance on determining whether a given relationship can be considered a family under the Constitution because the family is described as the "natural primary and fundamental unit group of Society, and...a moral institution possessing inalienable and imprescriptible rights". Article 41.1.2° goes on to observe that the family is "the necessary basis of social order and...indispensable to the welfare of the Nation and the State". That text remains unchanged under the proposed amendment, which ensures the constitutional protection and recognition that will be afforded to the family will not be extended to casual or transient relationships.

A huge body of law on welfare, taxation and family reunification already exists and rights and benefits are usually created by legislation. The Oireachtas and the Executive of the day have that function. Taxation obligations are set out in the Taxes Consolidation Act 1997 and related legislation. People's entitlement to social welfare are largely set out in the Social Welfare Consolidation Act 2005. Family reunification rights are set out in the International Protection Act 2015. The Deputy referred to the Succession Act. It was probably one of the great radical moves of the 20th century. Charles J. Haughey introduced it in 1965. It was described by international legal people as the end of feudalism in Ireland. It gave women the right to succession. That Act is still in place and still sustains. The proposed amendment on the family does not seek to repeal, alter or amend the rights or obligations that exist under these statutes. It is important we try not to confuse or muddle the issues. That is very clear. The amendment does not seek to do any of that. Equally, the Legislature will continue to retain its entitlements. The Deputy asked why the Oireachtas was not trusted. Every year, the Oireachtas is entitled to set rational social welfare, taxation and immigration policies in pursuit of the common good. We retain that right in this House.

My concern is that legal ambiguity around durable relationships, which will be families if the referendum passes, will only arise where there are disputes, between members of a family or between Revenue and a family. Given that we have no legal framework, the only way to resolve those disputes will be to go to court, and perhaps one court after another, up to the Supreme Court. The Tánaiste mentioned a lot of legislation. I can only comment on one. He talked about the family reunification Act of 2015. The most recent case on that is the 2020 case in the Supreme Court, where it said when talking about the durability of a relationship:

Thus, a durable partnership will tend to be one of some duration, but that is not to say that the duration of the relationship is, in itself, a defining feature...it is perfectly possible for a committed long-term, what is often called a “serious” relationship, to exist between persons who have known one [another] for a short time.

That conflicts with what the Tánaiste said a moment ago about transient relationships. The outcome of this case was that the court said the Minister could not make a two-year cohabitation period mandatory for family reunification and that the Minister has flexibility.

We are way over time.

That is the problem. It is unclear and uncertain and families really do deserve better.

It is very clear. I have just spelled it out in terms of the taxation question. There is legislation that governs taxation. We have the civil partnership and cohabitation Act, which we passed in this House. All these issues have been set out in clear-----

The frameworks?

But the legal frameworks are in place.

Not for-----

Please.

Included are the Social Welfare Consolidation Act 2005, the Taxes Consolidation Act 1997 and the International Protection Act 2015, which deals with family protection rights. There have been attempts – I am not saying the Deputy has been involved in them – to muddy the water and create confusion but there is a constitutional framework. Our Constitution has two great strengths. The first is the power of the people to amend it, which we are now exercising, and the second is judicial interpretation. Judicial interpretation has applied since the Constitution came into effect. This made it a radical constitution in the 1930s in the context of fascism. The then Executive and Oireachtas ceded some of their rights to the courts. We did that back in 1937.

The time is up.

It was quite a radical thing to do when states were taking power in. My point is that there are two frameworks. There is a constitutional framework, under a written Constitution, that will always be subject to judicial interpretation, but there is also the legal framework, which the Oireachtas passes, on succession, taxation and social protection.

Sorry, but the time is up.

I apologise; I was engaged.

The Tánaiste was in full flight. I appeal to Members to adhere to the times laid down.

That concludes Leaders' Questions. I thank everyone for their participation.