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Civil Partnership Bill 2009

No. 44 of 2009
24 September 2009

Summary
Contents
The Civil Partnership Bill 2009
establishes a new status Introduction 2
relationship for same-sex couples
and outlines the consequences of Background 2
civil partnerships. It also
introduces some financial Current law 9
protections for cohabiting couples.
Key Principals of the Bill 12

Library & Research Service Civil Partnerships 12


Central Enquiry Desk: 618 4701 / Cohabitants 16
618 4702
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 scheme-
cohabitants 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 same-
sex cohabiting couples recorded in the 2006 census was 2,090 (or 1.71% of the total

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

Census No. of No. of children of No. of same-sex


date cohabiting cohabiting couples couples
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 same-
sex 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:
• opposite-sex couples,
• same-sex couples and
5
Access the Bill http://www.oireachtas.ie/documents/bills28/bills/2006/6806/b6806d.pdf
6
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
http://www.iccl.ie/publications/Equality/Equality-For-All-Families-(May-2006).pdf
15
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
18
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.

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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-B457-
5C9014916D7A/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

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

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

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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

16
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 opposite-
sex 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

17
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

18
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.

19
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
49
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

20
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-2009/1487-
23-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

21
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 2010 2 million


scenario

2030 9 million

Low take-up 2010 1 million


scenario
2030 4 million

Central Government Pension costs

High take- up 2010 0.016 million


scenario

2030 14 million

Low take-up 2010 0.008 million


scenario
2030 7 million

62
www.berr.gov.uk/files/file23829.pdf
63
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.

23
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.

24
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

25