Contractualisation of Family Law in Ireland

The very limited capacity to make private inter parte contractual arrangements under Irish family law is unsurprising given the protected status of the family under Article 41 of the Constitution and its express positioning of the marital family as the fundamental unit group of society. Individuals typically cannot obtain or exclude familial status by private agreement and the related rights and obligations remain determinable and reviewable by the operation of law. In particular, the Irish courts have regarded themselves responsible for the protection of vulnerable family members, recognising the imbalance of power that might often exist within a family unit. Thus Irish family law is strongly state centric with little room for formal contractualisation. Private autonomy is secondary to the state’s obligation and entitlement to ensure where possible, the protection of the family, especially the marital family. Such intervention is mandated to protect the rights of the parties, both in the course of the union, as well as upon the breakdown of the relationship, but at all times to make determinations that are in the best interests of the children.