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10 actualitatea irl www.actualitateairl.com * info@actualitateairl.com * 086 166.02.82 IRISH FAMILY LAW - MARRIAGE Despite the various meanings given to the word ‘family’ in modern society, Irish family law is mainly concerned with the family unit of husband and wife and their children. The family which the Constitution envisages as deserving protection is the family based on marriage alone. The traditional importance attached to the institution of marriage is illustrated by the vast number of rules that have been developed, both by the Courts and the legislature, to govern the formation, functioning and dissolution of marriage. It is important to outline that the family that is protected by Articles 41 and 42 is exclusively the family based on marriage (Article 41.3.1). Thus, an unmarried cohabiting couple enjoys no constitutional rights under these Articles, as the parties are not married. n Alexandra BOSCENCO DEFINITION OF ‘MARRIAGE’ Despite the fact that the “family” is referred to in Article 41 and 42 of the Constitution, nowhere in these Articles is the term defined. Accordingly, it has been left to the Courts to come up with a definition. The decided case on this matter is the State (Nicolaou) v. An Bord Uchtala, which makes clear that “the family” referred to is that based on marriage (the nuclear family). This definition excludes the natural family or the family outside marriage, even though an increasing number of people choose to live together and have children outside the institution of marriage. In both, High Court and Supreme Court, the Court made the argument quite clear that: “the family referred to in Article 41 is the family which is founded on the institution of marriage” and marriage means “valid marriage under the law for the time being in force in the State”. Marriage was defined by Penzance LJ in Hyde v. Hyde as “the voluntary union for life of one man and one woman to the exclusion of all others”. According to the definition, a marriage must be between persons of the opposite sex; it must be monogamous, intended to be for life and voluntarily contracted by parties having the capacity to contract. The meaning of ‘marriage’ in a constitutional context was considered by Costello J in Murray v. Ireland. The Court locates the notion of marriage within the Christian notion and defines it as “a partnership based on an irrevocable personal consent given by both spouses which establishes a unique and very special lifelong relationship”. The cases were brought before Court when there were no provisions as regards divorce in Ireland. The introduction of divorce in 1995, made clear that marriage may no longer necessarily be for life. Therefore, in DT v. CT, Murray J, in the Supreme Court, described marriage as: “a solemn contract of partnership entered into between man and woman with a special status recognised by the Constitution. It is one which is entered into in principle for life”. The issue of marriage arose also in Zappone and Gilligan v. Revenue Commissioners and Others. The case is about two women in a long-standing relationship married in Canada, which permits same-sex marriage. They challenged the refusal of the Revenue Commissioners to recognise them as married couple for tax purposes. The High Court refused to redefine marriage to include same-sex marriage, on the basis that “the definition of marriage to date has always been understood as being opposite sex marriage”. The notion of marriage was not “some kind of fossilised understan - ding of marriage”. Adopting a historical approach, Dunne J. concluded that the People in 1937 could only have intended the term to mean heterosexual marriage. The Court is being asked to rede - fine marriage to mean some thing that it never has done. Dunne J. did not believe that there was sufficient evidence of a consensus to change the definition of marriage. Never - A theless, it is for the legislature to determine the extent to which changes can be made. ‘FAMILY’ UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS ARTICLE 8 OF ECHR Article 8.1 of ECHR states that: “Everyone has the right to respect for his private and family life, his home and his correspondence”. The concept of ‘family life’ is much wider than the notion of ‘family’ as envisaged by the Constitution. Family life continues even when parents and children are apart. The European Court of Human Rights has not yet recognised that the relationship between two unmarried adult heterosexuals, or two homosexual adults, amounts to family life. The definition of family life constitutes a major dilemma for the Irish courts. The rationale for the determination and the protection of the de facto family, affirmed in WO’R v. EH, differs considerably from the concept of ‘family life’ as defined in law of the European Convention. The Court took a different approach in Keegan v. Ireland, where the child was born as a result of a conscious decision taken by the applicant and his girlfriend who were then in a loving relationship. Notwithstanding that their relationship had broken down by the time the child was born, and the father had met his child on only one occasion, the Court held family to exist because at the “material time their relationship had all the hallmarks of life”. The notion of the ‘family’ in Article 8 is not confined solely to marriage-based relationships and may include other de facto family ties, where the parties are living together outside marriage. The fact that Irish legislation allowed for the adoption of the child without its fathers knowledge was a breach of his rights under Article 8. The most significant judgment in this area was in the case of X, Y and Z v. UK, where X was a female to male transsexual. Since 1979, X had lived in a permanent and stable relationship with Y, a woman. X underwent gender reassignment surgery. Z, child of Y, was born as a result of artificial insemination by a donor. X enquired whether there was any objection to his being registered as the father of Y’s child. X and Y attempted to register the child in their joint names as the mother and father, but X was not permitted to do so. The applicant is seeking a decision as to whether there had been a breach of Articles 8 and 14. The Court found that the relationship of post operative male transsexual who lived in a long stable relationship with a natural born woman and her child constituted a family. The Court went on to say that there was no breach of Article 8 since X was not prevented from acting as Z’s father in a social sense and could Y apply for a joint residence in respect of her.
A www.actualitateairl.com * info@actualitateairl.com * 086 166.02.82 ARTICLE 12 OF ECHR Article 12 of the ECHR states that: “men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”. As regards the connection between Article 12 and 8 in other aspects, Article 12 does not apply to family life beyond the point of marriage, other than in respect of the founding of a family. The question whether marriage is limited to unions between a man and a woman has arisen in two situations: unions between a transsexual and another; and unions between homosexuals. For the transsexual, the complaint is that a state which denies the transsexual the right to marry a person of the now opposite sex is inconsistent with his or her new status. In Rees v. UK, the Court unanimously ruled against the applicant transsexual. It was held that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. In Cossey v. UK, the Court, by fourteen votes to four, confirmed its ruling in Rees. Harris and Warbrick wrote as regards homosexuals that the Court ruled in Christine Goodwin v. UK, that the right to marry is not “limited to persons who are biologically of the opposite sex opens up the possibility that Article 12 might extended beyond the facts of that case to homosexual marriages or civil partnership”. ‘FAMILY’ PROTECTION UNDER OTHER JURISDICTION Those who support same sex marriage are cheered that such provisions exist in Netherlands, Belgium, Spain and Canada. A San Francisco Superior Court judge ruled that: “no rational basis exists for limiting marriage in this state [California] to opposite-sex marriage.” Some modern constitutions, such as those of Germany and Italy, refer to the family as “a social institution deserving special protection” and Article 1 of the Constitution of Chile states that: “The family is the fundamental nucleus of society”. CONCLUSIONS To sum up, the view is that the Constitution should expressly provide that all persons had a right to family life, irrespective of their marital status. This will ensure that all members of non-marital families will have constitutional protection. The issue still remains under the problem question as regards “What form should a revised Article 41 take”? It is worth saying that Article 46 of the Constitution states that “any provision can be amended” by Referendum, approved by people (Article 47) n actualitatea irl 11 Vrei să aplici pentru un loc de muncă? continuare din pagina 9 Arată-te interesat! Arată-ţi interesul faţă de companie şi job-ul oferit, însă vino mereu cu argumente (motivaţii personale, rezultate avute, realizări) care să susţină motivaţia ta. Demonstrează că ştii ceea ce vrei, stabileşte-ţi un obiectiv profesional spre care vrei să te îndrepţi. Arată-te preocupat pentru viitoarea carieră! Nu te bloca vorbind doar despre activităţile tale trecute. Fii relaxat! Aminteşte-ţi că un interviu reprezintă o conversaţie între două persoane, şi nu un interogatoriu. Încearcă să te relaxezi pentru a evita bâlbâielile, tremuratul vocii sau orice altă reacţie prea emotivă. Un candidat ferm şi sigur pe el va impresiona orice angajator. Gândeşte-te că cel care recrutează încearcă să găsească cea mai compatibilă persoana pentru postul la care ai aplicat, iar tu eşti acolo pentru a demonstra că tu eşti cel potrivit. Nu lăsa ca emoţiile să te împiedice să te pui în valoare! Nu fi prea prietenos! Cu toate că unii recrutorii pot fi persoane foarte prietenoase, nu încerca să ai o atitudine prea familiară cu aceştia. Evită detaliile personale, glumele sau contactul fizic în exces. Păstrează-ţi profesionalismul până la capăt. Adaptează-ţi comportamentul în funcţie de anchetator. Ai grijă la întrebările pe care le adresezi! Poţi pune întrebări în timpul interviului în cazul în care nu înţelegi anumite aspecte, însă este preferabil ca aceste întrebări să fie păstrate pentru sfârşitul interviului. Evită întrebările legate de produsele firmei sau companie. Aceste aspecte trebuiau cercetate înainte de interviu, iar necunoaşterea lor denotă lipsă de interes. Nu pune întrebări legate de salariu sau beneficii înainte ca intervievatorul să aducă în discuţii aceste lucruri. Totuşi, dacă angajatorul nu face acest lucru, este chiar indicat la finalul discuţiei să deschizi chiar tu subiectul. Ai grijă la felul în care vorbeşti! Unii candidaţi au tendinţa de a vorbi în exces sau prea tare, acoperind intervievatorul sau, din contră, vorbesc prea încet. Aceste extreme pot fi considerate drept aroganţă sau lipsă de încredere. Încearcă să adopţi un limbaj cât mai profesional, pe un ton neutru, şi evită glumele. Ai grijă la limbajul non-verbal! Încearcă să ai o atitudine relaxată, să fii atent la felul în care priveşti intervievatorul, la poziţia corpului (cum ne ţinem mâinile, picioarele, umerii etc. ), respiraţie, mimica feţei. Tonul vocii şi limbajul trupului te pot trăda. Ai grijă la ticuri! Nu te grăbi, nu te mişca continuu pe scaun şi nu gesticula în exces. 4. După interviu Interviul s-a încheiat. După susţinerea interviului încearcă să analizezi obiectiv performanţa ta şi trimite o „scrisoare de mulţumire” prin care să îţi arăţi recunoştinţa pentru şansa oferită. Formulaţi „scrisoarea de mulţumire” cât mai clar şi concis pentru a vă sublinia profesionalismul. Acest lucru te va ajuta să te diferenţiezi faţă de ceilalţi candidaţi şi va sprijini candidatura ta pentru post. Ai obţinut postul? Felicitări, înseamnă că te-ai descurcat de minune. Nu ai obţinut postul? Nu dispera! Faptul că nu ai fost selectat de la primul interviu nu înseamnă că nu eşti potrivit pentru acel tip de job sau că ai ratat „şansa vieţii tale”. Încearcă să culegi lucrurile pozitive din această experienţă. Gândeşte-te la felul în care s-a desfăşurat interviul şi încearcă să descoperi ce anume te-a dezavantajat. Astfel vei deveni un candidat mai bun data viitoare n
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