Civil Partnership Bills 2009 - Digest For Oireachtas Members

Civil Partnership Bill 2009 No. 44 of 2009 24 September 2009

Summary The Civil Partnership Bill 2009 establishes a new status relationship for same-sex couples and outlines the consequences of civil partnerships. It also introduces some financial protections for cohabiting couples.

Contents Introduction

2

Background

2

Current law

9

Key Principals of the Bill

12

Library & Research Service

Civil Partnerships

12

Central Enquiry Desk: 618 4701 / 618 4702

Cohabitants

16

Reaction to the Bill

20

Comparative legislation

21

Implementation arrangements

22

No liability is accepted to any person arising out of any reliance on the contents of this paper. Nothing herein constitutes professional advice of any kind. This document contains a general summary of developments and is not complete or definitive. It has been prepared for distribution to Members to aid them in their Parliamentary duties. It is not for general circulation outside the Houses of the Oireachtas. Authors are available to discuss the contents of these papers with Members and their staff.

Bills Digest – Civil Partnership Bill 2009

Introduction This Bills Digest examines the background to, and the major themes of the Civil Partnership Bill 2009 including the establishment of civil partnership relationships for same-sex couples, and the protections given to cohabitants. The Digest looks at similar legislation in other jurisdictions. It also highlights some of the reactions to the Bill.

The Bill will: •

create a status relationship for same-sex couples which is legally recognised by the State

•

establish a scheme of registration of civil partnerships for same-sex couples together with a range of rights and duties following registration to include shared home protection, and succession and pensions pension rights.

•

allow cohabitants (both opposite and same-sex) to regulate their own financial matters. It will also provide for a limited redress scheme where a cohabitant is left economically dependent. This will be done through a presumptive schemecohabitants will not have to register their relationships but will automatically covered once a qualifying period of time has passed.

The Bill does not provide any details on the tax or social welfare implications of the provisions of the Bill. Separate legislation in the form of Finance and Social Welfare Bills is required.

Background

The Bill was published on the 24th June 2009, almost a year after the Scheme of the Bill was first circulated. The Bill closely reflects the Scheme of the Bill in all major respects. When introducing the Bill, the Minister for Justice Dermot Ahern T.D stated that :

" This Bill also represents a recognition by Government of the many forms of relationships in modern society, and an important step very particularly for same-sex couples, whose relationships have not previously been given legal recognition. Publication of the Bill implements a commitment in the Agreed Programme for Government to legislate for Civil Partnerships. The Bill provides very significant rights to civil partners which raises complex legal issues in the context of the special protection which the Constitution

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Bills Digest – Civil Partnership Bill 2009

guarantees to marriage and in relation to the equality rights protected by Article 40.1 of the Constitution. The Bill has been carefully framed to balance any potential conflict between these two constitutionally guaranteed rights. This balance is achieved by maintaining material distinctions between civil partnership and marriage, in particular between the rights attaching to both, while at the same time reflecting the equality rights protected by the Constitution." 1

Marriage: This is currently the ony legalised intimate relationship recognised by the State. It is for opposite-sex couples only. Marriage is a legally binding civil contract and may only be dissolved through the death of one of the couple or by the court. This Bill does not change the legal nature of marriage.

Civil partnerships: This Bill will create a new legally binding civil relationship which can only be dissolved through the death of a partner, or by the court. This is only open to same-sex couples, as they do not have the option of a civil marriage.

Cohabitatants: For the purpose of this Digest and the Civil Partnership Bill, cohabitants are an unmarried couple (either opposite or same-sex) who are living together in an intimate relationship. Non-marital families are not recognised by Irish law. This Bill does not create a new status relationship for cohabitants, rather it allows cohabitants to regulate their own financial affairs.

The rise in cohabitation in Ireland Cohabiting couples have become the fastest growing family unit in the State. An analysis of data from the 2006 census 2 shows that cohabiting couples account for 12 per cent of all family units, compared to 8 per cent in 2002. The number of samesex cohabiting couples recorded in the 2006 census was 2,090 (or 1.71% of the total

1

http://www.justice.ie/en/JELR/Pages/Publication%20of%20Scheme%20of%20Civil%20Partnership%20Bill 2

From the Central Statistics Office

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Bills Digest – Civil Partnership Bill 2009

number of cohabiting couples) compared with 1,300 in 2002. Two thirds of these were male couples. 3

Table 1: Trends in cohabitation from 1996 to 2006 from the CSO date

Census No. of cohabiting couples

No. of children of cohabiting couples

No. of same-sex couples

1996

34,300

23,000

150

2002

77,600

51,700

1,300

2006

121,800

74,500

2,090

Currently cohabitants do not have many legal protections qua couple, even where they have been together for years. Contrary to the belief of many couples, ‘common law marriage’ or de facto marriage has no legal standing in Irish law and does not offer legal protection to either party in the relationship in the event of the break-up of the relationship or the death of one of the parties. The issue of private pensions and life insurance policies is also a concern for cohabiting couples. While some policies allow the nomination of a cohabiting partner as a beneficiary, many will only allow a spouse to be the beneficiary. Therefore a cohabiting partner of many years could not be the beneficiary of a lump sum or pension on the death or retirement of their partner.

Summary of attempts to legislate on the same issue

Two attempts have been made in the last five years to legislate on the issue of samesex partnerships and the rights and responsibilities that would flow to those in such a relationship. Both draft Bills introduced a new legal relationship of civil partnership or civil union which provided the same benefits, protections and entitlements as marriage. In 2004 Senator David Norris introduced the Civil Partnership Bill 4 in the Seanad. The provisions of the Bill applied to both opposite and same-sex couples. An important features was contained in Part 1 Section 6 which read, ‘ The parties to a civil 3

Page 23 http://www.cso.ie/census/documents/PDR%202006%20Commentary.pdf This is likely to be an underestimation of the number of same-sex couples as it is not asked as a specific census question to date. 4 Access the Bill at: http://www.oireachtas.ie/documents/bills28/bills/2004/5404/b5404s.pdf

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Bills Digest – Civil Partnership Bill 2009

partnership shall be regarded in law as having the same rights and entitlements as parties to a marriage valid in law under the Family Law Act 1995 and the Civil Registration Act 2004’. All the rights and responsibilities of marriage, including the adoption of children would be open to civilly partnered couples. The Bill was debated in the Seanad but a vote on it was postponed indefinitely. The Bill fell with the dissolution of the Dáil. The Labour Party introduced the Civil Unions Bill 2006 5 which applied to same sex couples only. ‘Civil union’ was defined in Article 1 of the Bill as ‘a conjugal status relationship entered into and recognised under this Act by virtue of which persons of the same sex as each other receive the benefits and protections, and are subject to the responsibilities, of parties in a marriage’.

The Bill made express provision for children of a civil union relationship. Dependent children ‘referred to a child adopted by both parties or in relation to whom both spouses were in loco parentis or, of either party or adopted by either party under those (adoption) Acts, or in relation to whom either spouse is in loco parentis, where the other party has treated the child as a member of the family’. The draft Bill expressly provided for the adoption of children in Article 8 subject to certain conditions including that due regard must be had to (a) the principle that the first and paramount consideration is the best interests and welfare of the child, throughout his or her life. The Bill was introduced in February 2007, and an attempt was made to reintroduce it in October 2007 but the Bill fell when a general election was called.

Summary of previous research in the area

A number of indepth research pieces have looked at the changing face of relationships in Ireland and examined options for regulating for these relationships.

Colley Options Paper The Colley Options Paper on Domestic Partnership 6 was published in 2006 and focused on three distinct types of cohabiting relationships:

5 6

•

opposite-sex couples,

•

same-sex couples and

Access the Bill http://www.oireachtas.ie/documents/bills28/bills/2006/6806/b6806d.pdf http://www.justice.ie/en/JELR/OptionsPaper.pdf/Files/OptionsPaper.pdf

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Bills Digest – Civil Partnership Bill 2009

•

non-conjugal relationships.

The report explored the best Constitutional options 7 for civil partnership and found that:

‘Full civil partnership would put same-sex couples on an equal footing with opposite-sex married partners, with the notable exceptions of not ascribing a marital identity and not offering the protection the Constitution affords to marriage and family life 8 . Full civil partnership falls short of full equality for same-sex couples as it excludes such families from the protection given to families in the Constitution. While there is a consensus on the granting of as full recognition as possible to same-sex couples, in the absence of civil marriage option is seen by the group as one which would address the majority of issues encountered by same-sex couples 9 . Full civil partnership for same-sex couples, in contrast with opposite sex couples, is viewed by the Group as a distinct institution separate from, and not competing with marriage. The Group believes that full civil partnership for same-sex couples does not suffer the same constitutional vulnerability as full civil-partnership for opposite-sex couples’. 10 The constitutionally preferred option was civil partnership as opposed to civil marriage, and this option is contained in this Bill.

The options put forward by the Colley report in relation to non- conjugal relationships have not been included in the Civil Partnership Bill. Law Reform Commission Report on Cohabitees 11 The Law Reform Commission (LRC) Report on Rights and Duties of Cohabitees from 2006 covered unmarried opposite and same-sex couples living together in an intimate relationship. The LRC undertook a thorough examination of the law in relation to cohabitants and recommended changes in areas such as succession, pensions and domestic violence. The recommendations aimed to improve the situation of cohabitants particularly at the end of a relationship when people are potentially vulnerable to legal uncertainty and hardship. The Report contained a summary of recommendations in relation to legislative change or retention of the status quo, of which the majority of the

7

This included contractual arrangements, a presumptive scheme to protect a vulnerable dependent partner in the absence of any other formal recognition of the relationship, limited civil partnership (a registration scheme extending a limited selection of the rights and duties available on marriage to registered partners) and full civil partnership (a civil registration scheme extending almost all of the rights and duties available on marriage to registered partners). 8 At Para 7.22 of the report 9 At Paragraph 7.23 10 At Paragraph 7.23.1 11 LRC CP 32-2004 http://www.lawreform.ie/files/Cohabitees%20CP%20%20April%202004.pdf

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Bills Digest – Civil Partnership Bill 2009

major recommendations have been included in this legislation. 12 Recommendations by the LRC in relation to sucession rights and power of attorney rights for cohabitees have not been followed. The All-Party Oireachtas Committee on the Constitution 13 focused on constitutional provisions relating to the family in its tenth progress report in 2006.It recommended the retention of the current constitutional definition of the family; but the addition of a legislative provision for heterosexual couples in the form of a presumptive scheme or registration scheme (similar to that contained in the Bill); and legislative provision for same-sex couples. The Irish Council for Civil Liberties 14 undertook a major research project in 2006 entitled ‘Equality for All Families,’ with the objectives of reviewing the current status of unmarried couples and other family groupings under Irish law and policy, highlighting breaches of international human rights standards and developments in other jurisdictions. The report also made a series of recommendations on constitutional and legislative reform designed to ensure legal recognition of and enhanced state support for various interpersonal relationships. The Equality Authority’s 2001 report Partnership Rights Of Same Sex Couples 15 was an audit of the situation in relation to the care of children, access to workplace benefits, ownership of property, taxation, social welfare, protection around domestic violence, emergency health care situations and immigration and access to work permits. The audit highlighted the need for action in this area but did not make specific recommendations.

Public Attitudes towards Legal Recognition for Same-Sex Relationships: A number of research projects have been carried out by NGOs and national newspapers to gauge levels of public support for the legal recognition of same sex relationships. 16

12

There are also ther small differences between the LRC and Bill, for example with the LRC recommending that applications for property adjustment orders have a one year time limit.(Recommendation 11.13) The Bill provides for a two-year limitation period (Section 193). 13 http://www.constitution.ie/reports/10th-Report-Family.pdf 14 15

http://www.iccl.ie/publications/Equality/Equality-For-All-Families-(May-2006).pdf

http://www.equality.ie/index.asp?locID=105&docID=70 16 See the 2006 Red C poll for the The Irish Examiner which found 51% of the population was in favour of gay unions/marriages, and a 2006 Millward Brown IMS poll for the Sunday Tribune16 showing a majority (64%), supported the rights of same-sex couples to equal financial and legal rights as heterosexual married couples.

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Bills Digest – Civil Partnership Bill 2009

GLEN (Gay and Lesbian Equality Network) commissioned Lansdowne Market Research (2006) to conduct a nationwide poll on ‘Attitudes towards Same-Sex Marriage.’ 17 •

51% believed that same-sex couples should be allowed to marry,

•

33% believed that same-sex couples should be allowed to form civil partnerships but not marry.

•

10% believed that there should be no legal recognition of same-sex relationships,

•

10% had no comment. 18

A later survey 19 conducted by Lansdowne Market Research on behalf of MarriageEquality in October 2008 found that: •

61% of those questioned felt that denying same-sex marriage was a form of discrimination

•

62% answered that they would vote yes if a referendum to extend civil marriage rights to same-sex couples was held tomorrow

•

70% felt that being raised in a loving home is more important than being raised by a mum and dad

•

58% of those under the age of 50 and 33% over the age of 50 agreed that same-sex couples should be allowed to adopt legally.

•

54% believed that the definition of the family unit in the Constitution 20 should be amended to include same sex families to reflect modern Ireland.

17

http://www.glen.ie/public/research.html In their analysis Lansdowne Market Research wrote: ‘A marked contrast in attitudes exists between the over 40’s and the under 40’s. Under 40’s are much more in favour. Whether a person is married or has children has little influence over their attitudes….those who are married with children are marginally more supportive of same-sex marriage, the survey suggests they are more empathetic towards the issue. Those living in Dublin are also most likely to support same-sex marriage, but it would be wrong to assume that more rural and western counties do not support same-sex marriage, as the majority do’. 19 See the results of the survey at: http://www.marriagequality.ie/download/pdf/its_no_joke.pdf 20 The family is not defined in the Constitution, but rather through case law. 18

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Bills Digest – Civil Partnership Bill 2009

Current law This section looks at definitions of marriage and family in Irish and European Convention on Human Rights (ECHR) law and case law. Neither the Constitution nor the ECHR require the State to legislate for civil partnership. However, equally there is nothing in the Constitution or the ECHR to stop the State from legislating for civil partnerships. Marriage is protected under the Constitution but it does not preclude the Government from offering protection to other forms of relationships and family units.

Definitions of marriage and family

Marriage Neither the Constitution 21 nor the European Convention on Human Rights (ECHR) 22 contains a definition of marriage and it has been left to the courts to interpret the meaning of marriage. A statutory prohibition on same-sex marriage was not introduced until the Civil Registration Act of 2004, 23 and the Act enjoys a presumption of constitutionality. The Zappone 24 case dealt with a same-sex couple who were legally married in Canada and wished to have their relationship recognised as a marriage in Ireland. Dunne J. in the High Court stated that: ‘It was also accepted that insofar as the institution of marriage is described within the Constitution that what was always understood by the framers of the Constitution was the traditional understanding of marriage as exemplified in cases such as Hyde v. Hyde 25 …, namely “the voluntary union of one man and one woman, to the exclusion of all others.”

21

Article 41 of the Constitution states that ’41.1 The State recognises the family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all law. 41.2 The State therefore guarantees to protect the Family in its Constitution and authority, as the necessary basis for social order and as indispensable to the welfare of the Nation and the State. 41.3.1 The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack. 41.3.2 A court may grant a divorce where inter alia: such provision is made as the Court considers proper: having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law. 22 http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/EnglishAnglais.pdf 23 Section 2.2 of the 2004 Civil Registration Act 24 Katherine Zappone, Ann Louise Gilligan v. Revenue Commissioners, Ireland, The Attorney General; The Human Rights Commission; [2004 No.19616 P.] Unreported High Court, 14 December 2006 25 [1866] L.R. 1 P and D 130 at 133

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Bills Digest – Civil Partnership Bill 2009

Dunne J. went on to state that: ‘I think one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple. The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage. Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex’. The plaintiffs’ case was refused and the case was appealed to the Supreme Court without a hearing date. Marriage therefore remains open to opposite sex couples only.

Definition of a family It is important to note that while the State is constitutionally bound to protect the marital family, this does not mean that non-marital families cannot be protected, as decided by the High Court in Mhic Mhathúna v. Ireland. 26 There is a clear distinction between marital and non-marital families, but all families are entitled to protection. In a 2008 High Court case 27 Justice Hedigan made a number of interesting points in relation to the definition of a family under Article 8 of the ECHR, and the meaning of a family in Irish law. The defendants here were a lesbian couple who were civil partners under UK law. One was the biological mother of the child. The father was a sperm donor, known to the couple, who has agreed to provide sperm to the couple and had signed a contract outlining the contact he would have with the child in the future. When the couple sought to take the child to Australia the biological father applied for guardianship of the child.

Justice Hedigan stated that: ‘It seems to me that there exists between the parties such close personal ties as give rise to family rights under article 8 and I find that the relationship of B., C. and D 28 herein is that of a de facto family within the meaning of article 8 of the European Convention on Human Rights. 26

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699140&portal=hbkm&source=exter nalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 27 Mc D. -v- L. & Anor [2008] IEHC 96 http://www.courts.ie/80256F2B00356A6B/0/38A622EAEB78969F80257447003CF68E?Open 28 The couple and the child

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Bills Digest – Civil Partnership Bill 2009

Thus, this de facto family has such family rights as may arise under article 8 which do not conflict with Irish law. Where any conflict exists, Irish law must prevail and the Court would be limited to the making of a declaration of incompatibility under s. 5 of the European Convention on Human Rights Act 2003. I can find nothing in Irish law to suggest this family composed of two women and a child has any lesser right to be recognised as a de facto family than a family composed of a man and a woman unmarried to each other and a child. Indeed, it seems to me that the State has a strong interest in the recognition, maintenance and protection of all de facto families that exist since they are inherently supportive units albeit unrecognised by the Constitution’.

The ECHR Article 8 of the ECHR 29 deals with the right to respect for private and family life. The European Court of Human Rights (ECtHR) may have a broad view of the meaning of ‘family’ but its definition of marriage is more narrowly defined. The ECtHR has not found that same sex couples are ‘family’ within the meaning of Article 8. In 2001 the ECtHR stated in Estevez v Spain 30 that: ‘the Court reiterates that, according to the established case-law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention. 31 The Court considers that, despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area in which they still enjoy a wide margin of appreciation. Accordingly, the applicant’s relationship with his late partner does not fall within Article 8 in so far as that provision protects the right to respect for family life’. The Court also held that the Spanish legislation had a legitimate aim in discriminating against Mr Estevez, because of the Spanish aim of "the protection of the family based on marriage". However as shown in Karner v. Austria 32 , any difference in treatment

29

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence. 8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

30

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=670621&portal=hbkm&source=exter nalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 31 See X. and Y. v. the UK no. 9369/81, 3 May 1983, and S. v. the UK no. 11716/85 14 May 1986. 32 [1995]1 IR 484

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Bills Digest – Civil Partnership Bill 2009

between one person and another, even where there is a legitimate aim, must be proportionate to the stated aim and must be necessary to achieve the aim. The onus is on the State to prove that the aim is legitimate and that the actions taken toward achieving the aim are proportionate and necessary.

Key Principals of the Bill This Bill refers to 130 pieces of existing legislation and contains 206 sections, many of which are amendments to that existing legislation. This Digest focuses on the scope of the new rights and responsibilities of both civil partners and cohabitants.

This section examines the main provisions of the Bill in relation to the distinct relationships covered by the Bill: (1) Civil partnership (2) Cohabitants

K (1)

Civil partnership

rincipals of the Bill This section looks at key provisions in the Bill in relation to the consequences of the registration and dissolution of a civil partnership, and parental rights.

Recognition of foreign relationships Part 2 of the Bill empowers the Minister for Justice, Equality and Law Reform to prescribe certain categories of relationship 33 contracted in other jurisdictions, and broadly equivalent to a civil partnership, as entitled to be treated as equivalent to civil partnership under Irish law. Therefore a same-sex marriage conducted in Spain or Canada can be treated as equivalent to a civil partnership relationship conducted in Ireland. It will not be recognised as a marriage.

Registration formalities Part 3 amends the Civil Registration Act 2004 to provide for the registration of civil 33

The relationship must be exclusive and permanent in nature, must be registered under the law of the other jurisdiction and the partners must not be within the degree of prohibited relationship.

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Bills Digest – Civil Partnership Bill 2009

partnerships. The formalities for a civil partnership are broadly similar to those for the registration of a civil marriage, such as that three months notice of an intended registration is required, and that registration will take place at the office of a registrar or at another approved venue. The parties to a proposed civil partnership must not already be in a civil partnership or married (but may be divorced), must be 18 years old or older and cannot be within the prohibited degrees of relationship. 34

However, it is optional to have a civil partnership ceremony unlike a civil marriage where a ceremony is mandatory. Furthermore only a registrar may register the partnership, whereas marriages may be registered by registered solemnisers from religious bodies.

Legal consequences of registration

Part 10 of the Bill outlines a number of important legal consequences of registration in a civil partnership, where civil partners are given the same protections as those given to spouses: •

Domestic violence protection: civil partners are given the same protections as spouses under the Domestic Violence Acts 1996 and 2002 under Part 9 of the Act.

•

Ethics and conflict of interest: a civil partner will be treated as a "connected person" or "connected relative" in matters concerning ethics and conflicts of interest.

•

Civil liability: a civil partner is added to the list of dependents in respect of whom a person may sue for damages for wrongful death.

•

Pensions: a pension scheme which provides a benefit for a spouse is deemed equally to provide a benefit for a civil partner. This is an important provision for the protection of surviving civil partners.

•

Protection from discrimination: the term "civil status" is substituted for "marital status" throughout the Employment Equality Act 1998 and the Equal Status Act 2000 so that the statutory obligation not to discriminate against a person on the ground that the person is single, married, separated, divorced or widowed is extended to prohibit discrimination against a person based on the person being in a registered civil partnership, or formerly in a registered civil partnership which has been dissolved.

34

The categories of prohibited degree of relationship are slightly different for civil partnerships and civil marriage.

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Bills Digest – Civil Partnership Bill 2009

Succession 35

Part 8 of the Bill gives a surviving civil partner the same succession rights under the Succession Act 1965 as a surviving spouse. Only biological or adopted children of that deceased civil partner will be taken into account in determining the surviving civil partner’s entitlement.

Nullity and Dissolution of Civil Partnerships

A decree of nullity may be granted under Part 11 of the Bill because of a lack of capacity on either party to enter into a civil partnership. This includes a lack of informed consent by one or both of the parties, or one of the parties not being of age at the time of the civil partnership registration. The effect is as if the civil partnership did not exist and both parties are free to civilly partner or marry.

Part 12 makes provision for dissolution of civil partnerships and the financial arrangements which may be ordered by the court. The court must be satisfied that proper provision is made for both partners before dissolving a partnership. . Dissolution differs from divorce in a number of ways: •

the partners must have lived apart for a period of at least two years in the previous three years. This contrasts with divorce proceedings where the couple must have lived apart for four out of five years

•

judicial separation is not possible for civil partners

•

there is no requirement, unlike divorce proceedings, that the civil partners’ legal advisers discuss the possibility of mediation, reconciliation or any other alternatives to dissolution proceedings 36

•

there is no requirement that provision be made for children of a civil partnership relationship. In divorce proceedings there must be no reasonable prospect of reconciliation between the spouses, and the court must be satisfied that proper provision has been made for the spouses and children. 37 Similar safeguards in relation to children are not in place under this Bill. Section 108 requires the court to consider the provision that is made for the partners, but does not mention any children that the partners may have.

35

Part 8 of the Bill Although the court may adjourn proceedings for such purposes. 37 Constitution, Article 41(3)(2); Section 5, Family Law (Divorce) Act 1996 36

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Bills Digest – Civil Partnership Bill 2009

Other issues in relation to dissolution follow the Family Law (Divorce) Act 1996 more closely. In keeping with the general practice of family law, civil law partnership cases 38 will be heard in camera and proceedings will be informal. Jurisdiction is also divided along the lines of existing family law with the Circuit Court and the High Court having concurrent jurisdiction to hear civil partnership dissolution proceedings and make ancillary relief orders. The District Court has jurisdiction in domestic violence cases and in certain property disputes and in maintenance matters.

Protection and Maintenance The Bill gives civil partners protection similar to that of spouses under the Family Home Protection Act 1976, although the use of the term ‘family home’ is avoided. 39 One important effect of this concerns cases where civil partners live together in a “shared home” that is owned by just one of them. In that case, the non-owning civil partner may prevent its sale if he or she does not consent. A civil partner may apply to the courts for maintenance 40 . The provisions for this are largely the same as those in the Family Law (Maintenance of Spouses and Children) Act 1976. As is the case with a deserting spouse, a civil partner who has deserted his or her partner will not be entitled to a maintenance order unless “it would be repugnant to justice” not to make the order. The court, in making an order, will look at the financial and earning position of the parties, as well as their financial responsibilities, including those of either civil partner towards dependant children, as well the needs of those children. The orders that a court may make on dissolution of a Civil Partnership are identical to those available to it in divorce cases. The court may order maintenance, lump sum payments, pension payments and division of property. As in divorce cases, entering into a subsequent marriage or Civil Partnership prevents a person making further claims against a former civil partner.

This maintenance provisions in Parts 5, 6 and 7 are based on provisions in the Family Law (Maintenance of Spouses and Children) Act 1976.

38

Part 13, Sections 137-145 Part 8 of the Bill 40 Part 5 of the Bill, Sections 42-49 39

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Bills Digest – Civil Partnership Bill 2009

Parental Rights The Bill contains few references to children of civil partners or cohabitants, and makes no provision as to custody, guardianship, adoption or affiliation. In general, Civil Partnerships are treated in terms of the partners only. For example, Section 27, which deals with the refusal by a non-owning civil partner to consent to a sale of a shared home, provides that a court may dispense with that consent in specific circumstances. This generally mirrors the Family Home Protection Act 1976. However, the 1976 Act requires the court to consider “the respective needs and resources of the spouses and of the dependent children (if any) of the family”. The corresponding provision of Section 29.2(a) refers only to “the respective needs and resources of the civil partners”. Similarly, the provisions on dissolution do not generally require the court to consider whether proper provision has been made for any dependent children. Section 127 of the Bill sets out the general considerations to be taken into account when making maintenance or other orders on dissolution. The clearest of these is “the rights of … any child to whom either of the civil partners have an obligation of support”. Section 127 also mentions “the financial needs, obligations and responsibilities which each of the civil partners has or is likely to have in the foreseeable future”. While dependent children will certainly be relevant to this, their interests (and the respondent civil partner’s liability, if any, to them) is addressed indirectly. In contrast, legislation concerning estranged spouses directly addresses the welfare of dependant children of the spouses concerned. Section 171 of the Bill , which concerns orders in favour of economically dependent qualified cohabitants, mentions children of either or both the parties as an essential consideration in decisions relating to financial arrangements.

(2)

Cohabitants

This section looks at the protections available to all cohabitants and the specific provisions dealing with qualified cohabitants.

The Bill does not create a new status relationship and does not attempt to equate a cohabiting relationship with marriage. It provides for limited protections in specific circumstances. It does not, for example, allow cohabiting couples to share tax credits

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Bills Digest – Civil Partnership Bill 2009

or automatically designate surviving cohabitants as pension beneficiaries. It is a presumptive scheme which will apply automatically 41 to all qualifying cohabitants without the need to register the relationship. Cohabitants who wish to opt out of the scheme may do so through an agreement between themselves.

The provisions in the Civil Partnership Bill aim to allow couples to regulate their own financial affairs, and to provide a financially vulnerable cohabitant access to apply for a number of financial reliefs such as maintenance or a share in the shared home. The main aim of the sections dealing with cohabitants is to allow couples to regulate their own affairs and to provide for a redress scheme to give protection to a financially dependent person at the end of a long-term cohabiting relationship. The Minister for Justice stated at the launch of the Civil Partnership Bill that,

‘the cohabitants scheme will put in place a legal safety-net for people living in long-term relationships who may otherwise be very vulnerable financially at the end of a relationship, whether through break-up or through bereavement’. Part 15 of the Bill outlines deals with both same-sex and opposite-sex cohabitants. Cohabitation is defined by Section 169 as two unmarried unrelated adults living together as a couple in an intimate relationship and covers both same and oppositesex relationships. All the circumstances of the relationship will be taken into account to determine whether the two adults are living together as a couple including: the duration of the relationship, the basis on which the couple live together and the degree to which the adults present themselves to others as a couple. Cohabitation is defined as to exclude non-intimate relationships and friends or siblings living together are not entitled to the protections in the Bill.

Section 170: Cohabitant and qualified cohabitant There are two different forms of co-habitants recognised under the Bill - cohabitants and qualified cohabitants. The Bill extends some protections to all cohabitants; however a redress system is available to qualified co-habitants only.

All cohabitants All cohabitants, both qualified and non-qualified, are entitled to certain protections through the amendment of the following legislation:

41

See http://www.irishtimes.com/newspaper/ireland/2009/0921/1224254909417.html for a number of concerns raised in relation to the presumptive scheme

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Bills Digest – Civil Partnership Bill 2009

Residential Tenancies Act (2004): cohabitants will have the same rights as spouses in relation to the continuance of certain tenancies. Civil Liability Act (1961): cohabitants will have the same rights as spouses to take wrongful death actions. Powers of Attorney Act (1986): a cohabitant is given the same rights as a spouse to be notified of an application for an enduring power of attorney. Domestic Violence Act (1996): cohabitants can apply for safety 42 orders and barring orders 43 against a violent partner. 44

Qualified cohabitants. Where cohabitants have been living together for three years 45 , or two where there is a child of the relationship, 46 they are described as qualified cohabitants and the redress provisions of the Bill will automatically apply. It is a presumptive scheme and cohabitants do not have to register their relationship to be eligible for the protections available. The aim of the redress system is to protect vulnerable or dependent qualified cohabitants when a relationship breaks down or where one of the cohabitants dies, without financial provision being made for the other cohabitant. Redress proceedings must be instituted within two years of the end of the relationship, except in exceptional circumstances. 47

The reliefs available on termination of the relationship on application to the courts are at the court’s discretion and include: •

Property adjustment orders

•

Compensatory maintenance orders

•

Pension adjustment and pension splitting.

Economically dependent qualified cohabitants are not automatically entitled to the reliefs available under the Bill, and must satisfy the court that it is ‘just and equitable’ to order the reliefs. The court will also consider the nature and duration of the relationship, the financial needs of the applicant and the contributions and sacrifices made by the applicant. The court will examine the rights and entitlements of any 42

A safety order is a court order which prohibits an individual from further violence or threats of violence. It does not oblige the person to leave the family home. 43 A barring order is an order which requires the person to leave the family home 44 A parent of whom there is a child with the respondent can also apply for a safety or barring order 45 Except that where one of the cohabitants is still married neither of the cohabitants may be a qualified cohabitant until the married cohabitant has lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years (i.e. the separation period provided in the Constitution for divorce). 46 Section 170 47 Section 193

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Bills Digest – Civil Partnership Bill 2009

spouse, any child of the respondent (a previous relationship, or a child of the relationship or any child treated by them as their child), or civil partner, former spouse and former civil partner before making a financial order.

While property adjustment orders were envisaged by the Law Reform Commission (LRC), they also stated in their report that more detailed provisions on the adjustment orders and how they would operate would need to be included in any legislation. This is not the case and the Bill does not contain any more information than the LRC proposals did.

Section 199: Validity of certain agreements between cohabitants Qualified cohabitants may decide to enter a cohabitation agreement which deals with financial matters only, during the relationship or when it ends. The cohabitants can waive their entitlements to applications for redress including maintenance orders, pension adjustment orders and property adjustment orders in an agreement between them.

This agreement does not affect access, custody or maintenance issues in relation to children, which are subject to existing family legislation and cannot be contracted out of. The agreement must comply with general laws of contract. Cohabitants must take independent legal advice prior to signing the agreement. The advice should be given separately to both parties but a couple can waive this right. In exceptional circumstances the agreement can be set aside by a court where it would cause serious harm to one of the cohabitants to enforce it.

Similar presumptive schemes for qualified cohabitants are in operation in jurisdictions such as Scotland, Austria, France, Hungary, the Netherlands, Portugal, Spain, Sweden, Australia, New Zealand, Canada and the United States.

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Bills Digest – Civil Partnership Bill 2009

Reaction to the Bill This section looks at reaction to the Bill, both positive and negative. Overall reaction to the Bill 48 can be divided into three groups; those who think it does not go far enough in securing equality for same-sex couples, those who think the Bill is acceptable and broadly welcome it, and those who think the Bill goes too far.

Organisations which think the Bill does not go far enough include Amnesty International, LGBTnoise, the Irish Council for Civil Liberties (ICCL), the Immigrant Council of Ireland and Marriage Equality. The main point of the argument is that civil partnership does not guarantee equality to same-sex couples, and that full equality can only be achieved through the extension of civil marriage to same-sex couples. For example the ICCL Director Mark Kelly 49 said : "This new legal structure offers a solid foundation for the recognition and protection of loving same sex relationships. However, although it is solidly grounded, the Bill remains a halfway house to granting genuine equality to same sex couples through full civil marriage". Now the onus is on those who, for religious or other reasons, still believe that it is acceptable to discriminate against people on the basis of their sexual orientation to explain why their prejudice should be reflected in law’.

All political parties in the State broadly welcome of the Civil Partnership Bill. Groups welcoming the Bill include the Gay and Lesbian Equality Network (GLEN), IBEC, 50 the Irish Association of Social Workers 51 and Treoir. 52 The Irish Human Rights Commission (IHRC) was asked by the Minister for Justice Equality and Law Reform for its views 53 on the scheme of the Bill. The IHRC welcomed the Government’s intention to ‘acknowledge and respect the dignity and worth of committed same sex relationships’ and to provide similar protections and supports to those relationships as those available to heterosexual relationships.

48

This includes reaction to the scheme of the Bill http://www.iccl.ie/news-Civil-Partnership-Bill-30-06-09.php 50 http://agenda.ibec.ie/e_article001348448.cfm?x=b11,0,w 51 Position paper received in e-mail correspondence from Communications Co-ordinator IASW. The IASW would like full equality for same-sex couples 52 The National Federation of services for unmarried parents and their children 53 http://www.ihrc.ie/_fileupload/publications/DISCUSSION_DOCUMENT_ON_CIVIL_PARTNERSHIP_SC HEME_2008_FINAL(2).doc 49

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Bills Digest – Civil Partnership Bill 2009

Organisations which have opposed the Bill include the Catholic Church in Ireland, represented by Cardinal Seán Brady 54 , and the Iona Institute 55 . Their opposition is based on the belief that the Bill undermines the position of the traditional family in Irish society. Cardinal Seán Brady stated in August that: ‘What the government is planning will hugely change peoples’ concept of the family. Nevertheless, marriage between a man and a woman will always remain the ideal environment in which to raise children’.

Comparative legislation

This section looks at similar provisions in other jurisdictions. Same-Sex Marriage The Netherlands, Belgium, Spain, Sweden, Canada, Norway and South Africa have passed legislation that permits couples of the same sex to marry and to have a marriage of the same, or virtually the same, legal standing as opposite-sex marriage. Belgium and Spain give the parties to such marriages the same adoption rights as married couples. The Netherlands permits them to adopt, but only from within that country. It is interesting to note that four of the five European countries (Sweden 56 Norway 57 Belgium 58 and the Netherlands 59 ); which legislate for same-sex marriage introduced registered partnerships or civil unions initially and progressed to full civil marriage after a number of years. Spain introduced same-sex marriage in 2005 ab initio.

Registered Cohabitation for Same-Sex Couples Denmark, Iceland, Finland, Germany, Switzerland, the UK and Slovenia have passed laws that allow same-sex couples (but not opposite-sex couples 60 ) to enter into a

54

http://www.catholicbishops.ie/media-centre/press-release-archive/64-press-release-archive-2009/148723-august-2009-homily-by-cardinal-sean-brady-at-st-johns-cathedral-limerick 55 http://www.ionainstitute.ie/news.php?num=0639#0639 56 Sweden has allowed civil unions since 1996. Full civil marriage for same-sex couples was introduced on May 1 2009. 57 In Norway civil unions, legal since 1993, have progressed to full civil marriage since June 2008 58 Belgium legislated for civil unions in 2000 and civil marriages in 2003. 59 The Netherlands legislated for civil unions in 1998 and civil marriages in 2000 60 Generally, other options such as civil marriage are available to opposite-sex couples

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Bills Digest – Civil Partnership Bill 2009

registered relationship broadly equivalent to Civil Partnership as proposed in the Bill. The rights and status arising under these relationships are generally equivalent to marriage. The main differences appear to be in relation to adoption and custody: •

In Denmark, a registered partner may adopt the other partner’s child but the couple cannot adopt other children.

•

In Iceland a registered couple may be given joint custody of one partner’s child, but there is not provision for joint adoption.

•

Finland permits joint custody of the children of a registered partner.

•

Germany permits registered partners to adopt each other’s children and to take joint custody of them.

•

In Switzerland, a registered partner does not obtain any joint or mutual adoption rights.

•

The UK gives registered partners joint adoption and custody rights

Implementation Arrangements The Bill does not provide any details on the tax or social welfare implications of the provisions of the Bill. Separate legislation in the form of Finance and Social Welfare Bills is required. The UN Human Rights Committee commented on the lack of this in its concluding observations 61 of July 2008 following the examination of Ireland’s third periodic report under the International Covenant on Civil and Political Rights: ‘The Committee, while noting with satisfaction the State party’s intention to adopt legislation on a Civil Partnership Bill, expresses its concern that no provisions regarding taxation and social welfare are proposed at present.’ It recommended that ‘the State party should ensure that its legislation is not discriminatory of non-traditional forms of partnership, including taxation and welfare benefits’.

61

Paragraph 8 of Section C. Principal subjects of concern and recommendations http://daccessdds.un.org/doc/UNDOC/GEN/G08/433/49/PDF/G0843349.pdf?OpenElement

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Bills Digest – Civil Partnership Bill 2009

Budgetary Implications A full Regulatory Impact Assessment (RIA) was not carried out. A regulatory impact assessment in the UK, carried out prior to the introduction of similar legislation there found 62 ‘that costs identified in this RIA are justified by the social policy reasons for introducing a civil partnership scheme for same-sex couples’. The assessment concluded that ‘while no specific data is available, a wide range of research 63 suggests that lesbian, gay and bisexual people constitute 5-7% of the total adult population.’

Table 2: Estimated costs in the UK State Pension and Bereavement Benefits (£)

High take- up scenario

Low take-up

2010

2 million

2030

9 million

2010

1 million

2030

4 million

scenario

Central Government Pension costs High take- up scenario

Low take-up

2010

0.016 million

2030

14 million

2010

0.008 million

2030

7 million

scenario

62

www.berr.gov.uk/files/file23829.pdf The RIA notes that there is very little reliable data about the size of the LGB population. Figures here are based on the findings in a number of different studies, such as the National Survey of Sexual Attitudes and Lifestyles (NATSAL 2000), and Johnson et al, Sexual behaviour in Britain: Partnerships, Practices and HIV Risk Behaviours, The Lancet,Volume 358, Number 9296, Dec 1, 2001, pp 1835-42. By contrast the Labour Force Survey finds just 0.2% of UK households consist of same-sex couples. 63

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Bills Digest – Civil Partnership Bill 2009

It found that the greatest impact would be on central and local government because of the need to regulate pension entitlements. It is important to note that these figures are based on implementing the civil partnership scheme in the UK where the gay, lesbian and transsexual population is estimated at between 2.10 million and 2.95 million people, and are given as an example only.

The same report found that stable relationships would also benefit the economy as it is expected ‘that civil partners will share their resources and support each other financially, reducing demand for support from the State and, overall, consuming fewer resources.’

The report found that where a civil registration system was already in place, that any extra expenditure would be recouped by registration fees. This is likely to be the case in Ireland.

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Bills Digest – Civil Partnership Bill 2009

Bibliography

All-Party Committee on the Constitution – the Family http://www.constitution.ie/reports/10th-Report-Family.pdf Barrington ,Brian: ‘Civil Partnerships in the United Kingdom and Ireland (ICCL Seminar Series Vol 1 [2009]) http://www.iccl.ie/publications/Equality/iccl_book_Web_F12_129579.pdf Department of Trade and Industry, Final Regulatory Impact Assessment: Civil Partnership Act 2004 (UK) http://www.berr.gov.uk/files/file23829.pdf Hogan, White: JM Kelly – The Irish Constitution (4th Ed, 2003) Iona Institute, 30 June, 2009, ‘Civil Partnership Bill deeply flawed and undermines marriage, http://www.ionainstitute.ie/news.php?num=0640#0640 Irish Council for Civil Liberties .Equality for All Families, (2006) http://www.iccl.ie/publications/Equality/Equality-For-All-Families-(May-2006).pdf Law Reform Commission: Report – Rights and Duties of Cohabitants (LRC 82-2006) http://www.lawreform.ie/Cohabitants%20Report%20Dec%201st%202006.pdf Murdoch, Henry: Murdoch’s Dictionary of Irish Law (4th Ed 2004) Ryan, Fergus: ‘Benchmarking’ Civil Partnership: Comparing Civil Partnership with Marriage and Considering the Legal Position of Children: (ICCL Seminar Series Vol 1 [2009]) http://www.iccl.ie/publications/Equality/iccl_book_Web_F12_129579.pdf Walls , Muriel: The Civil Partnership Bill: Dissolution and Provisions for Qualified Cohabitants: (ICCL Seminar Series Vol 1 [2009]) http://www.iccl.ie/publications/Equality/iccl_book_Web_F12_129579.pdf

Working Group on Domestic Partnership: Department of Justice ,Options Paper on cohabitation, November 2006 http://www.justice.ie/en/JELR/OptionsPaper.pdf/Files/OptionsPaper.pdf

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