The Influence of Gender in the Family Law System in Ireland

Fathers’ rights groups have been vocal over the past decade about what they perceive as a bias against them in the family law court system. In an Irish context the influence of Article 41 of the Constitution of Ireland 1937, which gives supremacy to married families, has been seen by these groups as a stumbling block to equality for fathers. Unmarried mothers are also protected as they are seen as having personal rights to the care and control of their child under Article 40.3 of the Constitution. Unmarried fathers are the only parents who are not protected in this way. Further, the Guardianship of Infants Act 1964 provides that only married parents and unmarried mothers are automatic guardians of their children. This therefore excludes unmarried fathers from making decisions in relation to their children’s future, in particular in relation to education, religious upbringing and medical treatments received. This paper will explore the rights of fathers in Irish family law and examine if fathers in Ireland are being prejudiced against in the court system. It will discuss how other countries, for example New Zealand and Scotland, have adapted their legislation in an effort to make the system of applying for guardianship for unmarried fathers easier and more equitable. The paper will also examine the reason why, unless exceptional circumstances exist, a mother remains the primary carer of her child following separation or divorce. To coincide with these discussions, the author will discuss some results from an interview based study conducted and observations made while attending the family law courts in Ireland.