As amendment No. 2 is an alternative to amendment No. 1, both amendments may be discussed together.
Civil Partnership Bill 2009: Report and Final Stages
I move amendment No. 1:
In page 13, line 13, after "Partnership" to insert "and Certain Rights and Obligations of Cohabitants".
On Committee Stage I accepted in principle a suggestion made by Deputy Flanagan in regard to the two distinct issues dealt with in this Bill. Amendment No. 1 will avoid creating the impression that the Bill encapsulates all law which applies to cohabitants. There has been an increasing recognition of cohabitation in legislation in recent years and different levels of recognition are afforded in different situations. The primary purpose of this Bill is to establish the cohabitants redress scheme in Part 15 and not to incorporate all existing legislation on cohabiting couples. Amendment No. 1 is framed to match the Short Title to those rights and obligations flowing from Part 15 and to make clear that the Bill does not provide the full body of law applicable to cohabitants.
On the basis of what the Minister has said, I am prepared to withdraw amendment No. 2. This is an important issue. It has been noticeable that much of the public and media debate on this issue has surrounded the civil partnership aspects of the legislation with particular reference to the new and welcome arrangements in respect of the registration of same sex couples and their partnership.
The debate on the matter of cohabitants has not been as widespread, a matter that has been mentioned previously in the House. It is essential that the element of the Bill dealing with the far-reaching reforming arrangements for cohabitants be given the status of mention in the Title of the Bill. I am pleased the Minister has taken on board the suggestion. From that point of view, amendment No. 2 is redundant and I will not be moving it.
I agree with the change to the Title of the Bill. We will have an opportunity later in the debate to revisit our discussions on cohabitation. We are now discussing altering the Title of the Bill to broaden it to include the sections overtly on cohabitation, in regard to which I would like to say a few words.
The Bill which I produced on same sex recognition, namely, the civil unions Bill, which was twice debated in this House, dealt only with the matter of same sex couples. I am aware the terms of reference of the Law Reform Commission and Colley report were broader and came up with recommendations in respect of cohabitation. As I said on Committee Stage, the focus we have had on the issue of same-sex unions has been so intense that we have probably not had the same level of scrutiny of the elements of the Bill that deal with cohabitation. In general terms, I am sorry we are not dealing with two separate Bills. Since the Committee Stage debate, I have read a critique of the Bill's cohabitation provisions by Professor John Mee of the UCC law faculty. I will not take up too much of the time of the House rehearsing the arguments made by Professor Mee in the critique, which was published in theIrish Journal of Family Law. He states:
The second aim is to set up a scheme to create certain rights for cohabitants, whether same-sex or opposite-sex, upon the termination of a relationship outside of marriage or civil partnership. It is unfortunate that the two separate issues are dealt with in the same Bill. The argument in favour of introducing a civil partnership scheme for same-sex couples, or permitting such couples to marry, seems unanswerable. [I think that is the view of everyone in this House]. However, the case for the introduction of legislation at this time in relation to informal cohabitation is actually much less strong than that in relation to civil partnership/same-sex marriage.
While I agree with Professor Mee's point, we are where we are. We need to spend some time during this evening's debate considering whether the cohabitation provisions we are enshrining in law are right. Regardless of the publicity we give it, many cohabiting couples will remain unaware of this debate. When this enactment becomes law, they will wake up to find that responsibilities they might not have envisaged have fallen upon them. I do not want to overstate the case because I am conscious that all the Bill seeks to do is to give people who are financially dependent on others the right to access the courts. It does not confer any automatic rights on them. We need to speak clearly on this matter. In hindsight, it probably would have been better to have dealt with these two separate issues — the same-sex unions issue and the cohabitation issue — in two separate Bills. I do not object to the change in the Title of the Bill to reflect the actual contents of the enactment before us.
I support the Minister, Deputy Dermot Ahern, in this regard. I want to take this opportunity to welcome the final stages of the passage of this legislation, which represents an important milestone on the road towards full equality. I may differ from the Minister when it comes to the final destination on that road. My view and that of my party is that there should be no distinction between genders with regard to marriage. The final destination for me and for my party involves consenting adults having full and equal marriage rights, regardless of sexual orientation.
I know that many people, particularly in the two larger parties in this Chamber, do not wish to see that. The Bill before the House is an important milestone. I say to those who are concerned about it, some of whom have expressed their concerns to me, that this is a question of civil rights. It will give recognition to people who have been denied recognition for many years. It is about more than civil partnership — it is also about giving rights to very vulnerable people in cohabiting relationships. The CSO acknowledges that there are thousands of gay and lesbian couples in Ireland. They deserve recognition by the State. In addition, there are over 100,000 cohabiting couples of opposite genders. I understand that there are approximately 75,000 children of such relationships in Ireland.
This legislation gives recognition to such families and relationships as well. Although this Bill does not go as far as I or my party would like, it represents very important progress on a journey that will probably take many years to reach its final destination. Deputies around the Chamber may disagree about what that final destination should be, but almost everyone will agree that this measure marks progress as we move along the road towards recognising, cherishing and protecting the vulnerable in Irish society.
While I have nothing against equality, I would not take the line that was taken by the Minister of State, Deputy Ciarán Cuffe, when he spoke about matters that are not covered in this Bill. We do not have to refer to issues that are not dealt with in this legislation. I would like to seek clarification from the Minister on foot of my concerns about what I perceive to be anomalies in the Bill before the House. It seems to me, contrary to what media commentators and others have said, that there is some discrimination in the Bill. I would like clarification on my interpretation of the rights that will be conferred on cohabiting couples by Part 15 of the Bill. Perhaps amendments Nos. 1 and 2, which have been accepted by the Minister, will alleviate my concerns. It seems from the definition of "cohabitant" that such couples may be treated differently from married couples. The section I would like the Minister to clarify states:
For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—
(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and
(b) of 3 years or more, in any other case.
I did not interrupt previous speakers, but I am concerned that the debate is now broadening out. On Report Stage, Members must confine their remarks to amendments.
I am the first speaker to whom the Ceann Comhairle has said that.
I accept that. The point I am making is a general one and does not apply specifically to the Deputy.
Okay. Therefore, I will continue.
The Deputy might well be an offender in this regard as well.
I would also like clarification in respect of section 171, which provides that a cohabitant may seek and get redress under subsequent sections. He or she can seek a property adjustment order, a compensatory maintenance order or, under section 185, a pension adjustment order. Married couples need to have been living apart for four or five years before they can seek such orders. I ask the Minister to address that clear anomaly. Why is there a difference between the treatment of cohabiting couples and married couples who have been living separately? In the first case, redress can be sought after two years if there are children involved, whereas a married couple who have been living separately cannot get redress for four or five years. I would like some clarification on that clear anomaly.
The matter might well be dealt with as we work our way through the amendments. I am not sure it is relevant to amendments Nos. 1 and 2.
I reserve the right to raise the matter again. Given that I was following the Minister of State, Deputy Cuffe, I thought I was justified in making an argument on my interpretation of the Bill. He was talking about matters that are not in the Bill at all.
It is problematic for any Deputy to engage in Second Stage debate at this time.
I do not intend to return to Second Stage. I am trying to cure a problem in the Bill, which is the purpose of Report Stage.
I do not have any problem with civil partnership, as I said on Second Stage.
This is Report Stage.
I know. I want to comment on the issue of cohabitation, which has already been mentioned. I welcome the rights that people will now enjoy in that regard. A change was needed in that respect. Individual Deputies are familiar with the cases of couples who lived together for years and had children. When one of them died in an accident, for example, the other one did not have any rights. We have all encountered live issues of that kind. I was contacted by an unmarried lady who had been with her partner for more than 40 years, and whose children were reared. When her partner died, she found that she had no rights, to all intents and purposes. Before the Bill proceeds any further, will the Minister agree to include a conscience clause to allow people freedom, without having to go to court? An officer of the court is permitted to withdraw from a case if he or she has a personal interest in the case. With regard to civil partnership, however, there is no room for conscience. No one has the right to refuse to take part in a civil partnership ceremony. That is totally wrong.
The intention of amendments Nos. 1 and 2 is to expand the Title of the Act to ensure that mention is made of rights and obligations. I do not have a major problem with that. My only reservation is that we are dealing with a civil partnership Bill and that we have not gone as far as we should have with regard to marriage equality.
The amendments give a proper account of what is contained within the Bill, flawed as it is. The fact that the Minister mentions certain rights indicates that not all rights are transferred to those who, after the passage of this Bill, will enjoy civil partnership. The next step mentioned by a previous speaker needs to be taken to address the rights which are not enjoyed by people who will take part in civil partnership but who might want to enjoy all the rights that would accrue to them if they were allowed, in this State, to enjoy the rights and privileges of a civil marriage rather than the religious marriage, on which some of the characters at the gate would confuse the issue.
I particularly support the Minister's amendment No. 1 because it mentions certain rights.
We are debating amendments Nos. 1 and 2. Both amendments seek to include the word "cohabitants" after the word "partnership". The Minister's amendment proposes including the words "certain rights and obligations of cohabitants" and the other simply proposes the addition of the word "cohabitants".
I favour the Minister's wording but with a small caveat. In Part 15, which deals with cohabitants, I cannot find any obligations for cohabitees listed. There is a facility to seek redress from the courts, which could make orders. If a court makes an order, there is an obligation on the person against whom the order is made to comply with it. If that is the obligation referred to, I fully support it. I understand that there are rights and that the principal right of a cohabitee under Parts 15 and 16 is the right to seek redress. I understand that is the only principal right given in Parts 15 and 16. However, I am not quite sure about the obligations. Perhaps the Minister could enlighten me on that.
We are talking about a fairly narrow issue. I know some Deputies went into other areas in making their contributions. I thank Deputy Charlie Flanagan for offering to withdraw his amendment in preference to mine. First, I congratulate him on making it back to the Fine Gael Front Bench, despite all the circumstances.
He never left it.
I thank him for his co-operation in the last two years and I wish him well in his new post.
Deputy Howlin quoted an academic who said it was unfortunate that these two issues are being dealt with in the one Bill. I would say it is fortunate that we are dealing with the two issues in the one Bill. Part 15 refers to the possible provision of a safety net for cohabiting same sex and opposite sex couples. For too long, the Oireachtas has not provided rights, obligations, duties and statutory cover for cohabiting couples, particularly as a substantial and increasing number of people are living as man and wife but are not married. When one consider the number of children born out of wedlock to people who are living together but not married, it is incumbent on the Oireachtas, sooner rather than later, to make this provision. That is why I say it is fortunate that we are now dealing with this issue.
Deputy McCormack referred to the safety net redress scheme provided for in Part 15. This gives couples a right of access to court. It does not give any statutory rights in relation to estates. That will be for the court to decide. The provision is framed in such a way as to apply to couples, both heterosexual and same sex, who have split up to go into court and, if one of them can show extreme financial difficulty, to ask that the court make financial provision for him or her. Some critics of this provision have misread its purpose, which is to protect a financially dependent person who may be left high and dry if a couple split up. There is good and valid reason for making a distinction between a couple who have children and a couple who do not. Hence the two year and five year limits.
Why is there a two and four year difference? For married couples the period is four years.
The Minister of State at the Department of Transport, Deputy Ciarán Cuffe, said the Bill does not go far enough. The Bill is a fine balance, as is required by the Constitution, between the constitutional provisions that people be equal in the eyes of the law and that marriage be protected. Without a referendum, we must frame our law to meet the fine balance between those two, supposedly, contrasting provisions. This is a fine balance.
We have taken detailed legal advice from the Attorney General on every provision in the Bill in order to ensure that it will pass constitutional muster. There may be people who will say it does not go far enough and others who will say it goes too far. A commitment was made by my party in our manifesto before the last general election, confirmed in the programme for Government with the Green Party and the Progressive Democrats and further confirmed in the review of the programme for Government a year ago.
Deputy Crawford referred to freedom of conscience. There seems to be confusion on his side of the House. His spokesperson did not put down an amendment asking for freedom of conscience to be included in the Bill. I have already made the position clear on behalf of the Government. It is not possible from a policy point of view nor, it must be said, from a practical point of view to allow a situation whereby a civil servant mandated by the Oireachtas to implement law can adopt anà la carte approach, depending on his or her view of this legislation, or the religious view he or she might have in regard to a situation. This is especially the case in the State we now have, which is multi-cultural, multi-ethnic and multi-religious.
It is also a republic.
Absolutely. It is a republic. I return to the statement my party issued in our manifesto when we proposed what we would do, based on our republican ethos and building on the agenda of equality to which we are committed. We said we would address these issues and that is what we did.
I say, resolutely, to people who suggest there should be a freedom of conscience clause, that if we pass laws in this House we expect them to be implemented. If we allow a situation where people can adopt anà la carte approach to implementing the law on behalf of the Legislature we will leave ourselves, the taxpayer and the State wide open to a claim by those who will say they have been discriminated against because an official — in this case a registrar — may, for religious reasons, have refused them service.
There has been no representation or indication of any kind regarding the freedom of conscience issue; rather there has been a positive view from people of what we are doing in this regard. This comes from the Ard Cláiritheor's office and from registrars in general, who say they are more than happy with this provision.
I thank Deputy Ó Snodaigh for his support. I make the general point that it is not our fault this has not been widely publicised. There was a consultation process and there was a law reform report in this area. There was a Colley report which allowed for public consultation in all these areas, concerning both cohabitants and the issue of civil partnership. That process has been going on for some considerable time. More or less, although not completely, this Bill embodies what was suggested in that regard by those two reports.
That is what we are doing. We should get on with it and not decry the fact we are dealing with two issues in one piece of legislation. There is a clear overlap in that the redress scheme for cohabitants refers not only to opposite sex couples but to same sex couples.
I asked about obligations. What are the obligations referred to in the Title?
The obligations are as per mandated by the court under the redress scheme. When people apply to court they will have obligations to each other, as ordered by the court. The obligations will be based on the orders of the court.
As Deputy Crawford raised the matter I ask, namely, if there has been a lobby by registrars who wish to have a clause allowing them to opt out.
If there was no lobby how did all this arise? There was no lobby from registrars who seek to — I do not know, perhaps register their——
There was a lobby from the Green Party.
Before I call the Minister, do any other Members wish to comment?
Has the Minister any idea as to where the story of registrars not wishing to do their duty, their job for which they are paid, originated?
I never mentioned the word "registrar". There has been a major lobby by all the churches, from bishops to ordinary members and many others, who asked that this exemption be considered. I may be the only Deputy who got this material but I assure the House I got it from Catholic bishops, Church of Ireland, Baptist and Presbyterian ministers, and many individuals throughout the country. I make no apology of any kind for raising the matter on their behalf. It is not only the registrar issue that worries them but other situations about which many people have been very vocal.
I reaffirm my support for the ministerial amendment. Regarding the intervention of Deputy O'Rourke, representations have been made——
Were they made by registrars?
There has been substantial lobbying although not by registrars. As they are State officials, it would be highly unusual if registrars were to make representations, as alleged. However, to say there has not been lobbying or that representations were not made would be doing the people concerned a disservice. Many of them are genuine in their belief that an appropriate amendment to protect freedom of conscience and religion might be incorporated in the legislation.
The Minister is right. I did not table such an amendment, nor did anybody on any side of the House. However, I hope the Minister does not insinuate that because the Opposition did not table an amendment the matter was not worthy of consideration or that it did not form the basis of strong representations from various groups and individuals from different backgrounds and religious persuasions, as testified by Deputy Crawford.
At this late stage in the debate, I ask the Minister to reaffirm his view and that of the Attorney General, the Government and the majority parties in this House that there is no scope for the type of amendment sought, notwithstanding a genuine belief on the part of individuals that complying with this legislation will present them with a conflict. I do not refer specifically to registrars but also, for example, to the use of institutional property. That is not the issue raised by Deputy Howlin on Committee Stage when he referred to florists and the provision of goods and services, which clearly cannot be accommodated. However, there may be an issue where sacred church property is concerned, the use of which is confined to the furtherance of religion. This is property that has not benefited in any way from any form of State funding and has no public State functions other than the narrow confines of furtherance of a certain religious view.
If the Minister can tell me he is satisfied that the use of such property may be preserved or that there are circumstances where the use of such property might be preserved, then I will be happy. However, to suggest that because I did not table an amendment that this was not an issue does this debate a disservice. I did not do so because I believed the two elements to the amendment sought, in respect of issues for individuals and those for institutions, were such that we would, in effect, unravel a very important corpus of legislation which, over many years, we have put through the House as an anti-discrimination code. I believed that was not compatible with the type of amendments sought or the lobbying, with which Deputy O'Rourke does not appear to have had any engagement.
There was nothing from a registrar.
Nobody suggested it came from a registrar.
Deputies, this amendment has a very narrow purpose but the debate is broadening out.
I accept what was said but I ask the Minister to convince the House on this issue. Many of my party's backbenchers contacted me about this issue, many of whom hold very genuine views on it. I ask the Minister to reaffirm, if he can, that however benign the intentions may be, it is not possible under current law to accommodate that view. It is important that no doubt be left on this issue.
I really think this is a red herring.
Will the Deputy keep in mind the amendment and its narrow scope?
I certainly will, but I am afraid a Pandora's box has been opened that we had already dealt with in great detail on Second and Committee Stages. It cannot rest with people ambling in now who clearly do not understand exactly what is in the Bill.
The Bill that I brought twice before this House, namely, the civil unions Bill 2006, did create a marriage-like institution. In that Bill, I allowed for an opt-out clause to provide for the right of religious people to opt out from it. However, this is quite different. The Minister's proposal is for a civil partnership, which can only be presided over by registrars of the State. It is quite wrong to allow anybody who is a functionary of the State to opt out from carrying out a duty that is determined by this House. Where does that end? Deputy Crawford in particular should know. If somebody decided that he or she would not deal with people of a certain religion, how would we react in this House? How would we react in this House if registrars decided that they would not allow people who are divorced to remarry, even though that is the law of the land? Let us not make a narrow set of rules for one class of people in this House. That is the consensus we had.
Deputy Flanagan presented a very narrow construction on this. The lobbying was not about a narrow construction because those involved wanted blanket exemptions. They mentioned service providers such as florists and others in the representations we received. I absolutely reject that. Since the Equal Status Act 2000, it is unlawful to discriminate against people because of their sexual orientation in the provision of services. The Minister's provisions do nothing to upset that, nor should they. I do not know of too many florists or providers of services of any description who would not be very happy with the business right now.
Deputy Flanagan made a narrow point that somehow gay couples would want to use church halls or something like that. I do not think that gay couples would want to do that. I do not think they want to go to places where there is antipathy towards them, if that is public and manifest. It is unfortunate that such antipathy would exist, but I think people want to have these civil ceremonies in a place full of joy that is appropriate to the ceremony they are celebrating.
People who are fundamentally opposed to the principles of civil partnerships of same sex couples have thrown red herrings into this argument, and we have dealt with those. However, I fully accept Deputy Crawford'sbona fides on this. There are people, many of them lobbyists and many of them outside the House over the last few days, whose views are fundamentalist but to which they are entitled. I do not believe their views reflect the overwhelming view of modern Ireland and the people of this State right now.
I accept Deputy Howlin's point that it is unlawful to discriminate against anybody, but I see some discrimination in the Bill and it is my duty as an elected representative to iron out what I see as discrimination and to be satisfied that no discrimination will exist in the Bill if it is passed in its present form. That is my duty as a public representative.
I understand what is in the Bill. I am still concerned about the two years versus the four years and I am not happy with the Minister's reply that one can seek court redress after two years. If the two years and four to five years clauses remain in the Bill, then in my opinion that would be an incentive to people getting married. In the circumstances where a couple have cohabited for the qualifying period, the financially dependent party may, with the prospect of marriage, be left in an economically less advantageous position. How is that not discrimination against married couples if unmarried couples cohabiting together with children can have redress after two years while married couples who have been living apart cannot have redress for four to five years? If the Minister can satisfy me on that, I might not have any more to contribute to this debate.
Deputy Howlin is right to say that a Pandora's box has been opened on this issue. Perhaps it is no harm that we get all these things out of the way, because we have a relatively small amount of time. It reminds me a bit of the Bill on stag hunting, when there was much debate about things that were not in the Bill. Exactly the same happened during the debate on the Criminal Justice (Amendment) Bill 2009, which we enacted this time last year. Many people, including some learned senior counsel, went on the radio who clearly had not read the Bill and spoke about things that were not even in it. We have had an element of that during the lobbying for this Bill.
Deputy O'Rourke made a point about freedom of conscience. People were making representations. The registrars have not said anything to us. In fact, if there was anything said, it was positive as they did not ask for any exemption themselves.
Their union supported it.
However, there is no doubt that the representations being made by others — not the registrars — was that there may be registrars who may have a difficulty. I listed out a number of possibilities.
When we pass laws in the State, we expect our public servants to implement those laws to the letter without fear or favour under the Constitution. If there were people who decided that they were going to opt out of this and not enforce what we pass in the Oireachtas, it would leave the taxpayer open to a huge claim for non-implementation of the law that applied to them and to which they were entitled. We live in a society composed of people of all different faiths and ethnicities. When I was Minister for Foreign Affairs, I was intrigued to see that there are 177 nations in the UN, and we have people from 169 nations resident in this State. Virtually every nation is represented in this State.
Up until now, a registrar could refuse on religious grounds to process divorce proceedings. Divorce is not recognised by at least one church, yet no registrar has not performed his or her duty, even though I assume some registrars are of that religion. A court clerk might refuse to issue divorce orders because of a religious belief. A fundamentalist Christian Garda might refuse to arrest a person who is breaching a safety order on the basis that the husband is entitled to chastise his wife. A judge might refuse to register a power of attorney in favour of a person's civil partner. A Muslim or a Mormon accident and emergency doctor might refuse to treat someone with alcohol poisoning. A social welfare official might refuse to pay a carer's allowance to a person's civil partner. A probate officer might refuse to issue a grant of administration to a deceased person's civil partner. Where are we going to end with all of this?
From a policy point of view, there was no way in which we could allow freedom of conscience in this regard.
With regard to what is in the Bill and what is not in it in terms of the use of church property, photographers, florists and so on, that is all dictated by the Equal Status Act 2000 and the Equal Status Act 2004 and, therefore, already provided for. This Bill will not do any more or any less. It will not destroy anyone's rights. It will give those people who have been deprived of those rights, civil rights and legal protection into the future.
Deputy Howlin referred to the issue of exemption. Section 5(2)(e) of the Equal Status Act 2000, as amended, exempts from its scope differences in the treatment of persons on the religion ground in relation to goods and services provided for a religious purpose. I refer Deputy Flanagan to section 59E, on page 23 of this Bill, which states, “A civil partnership may be registered only at a place and time chosen by the parties to the civil partnership with the agreement of the registrar and, if the place chosen is not the office of a registrar, the approval of the place by the Executive, [that is the HSE] and the question whether to give or withhold the approval, shall be determined by the Executive by reference to the matters that the Minister may specify”.
I am aware of that.
In effect, that means that no church can be forced to have a ceremony on its sacred ground, its church property, which is used for religious purposes. The only way a church could be used is if the church applied to be registered and applied for approval by the HSE under the legislation. Anybody who suggests that gay couples will now take churches to court for the use of the church is a complete nonsense. That is not included in the legislation. It is stated in black and white in the legislation that that can be done only at the instigation of the church if a place is to be used for a civil ceremony by a gay couple.
If there is other property owned by the church and it rents it out for commercial purposes, it could be forced to allow that property to be used. That is not provided for under this legislation but in legislation passed ten years ago, the Equal Status Act 2000. If a church rents out its property, it is not entitled to discriminate. That are nine protected statuses in earlier legislation, one of which is sex, religion etc.
We need to deal with what is in the legislation and not with what is not in it. To return to the central point of the amendments, I accept the point made by Deputy Flanagan now and by Deputy Howlin on Committee Stage that the Title of the Bill does not reflect the fact that there are two distinct issues involved, and we have amended that accordingly.
I thank the Minister for the clarification. Notwithstanding the genuine point made by Deputy Howlin that debate has been somewhat more rambling than the point to which the amendment refers, it was important. We debated this matter on Committee Stage, but I thought there were still doubts as to the position, and I pleased the Minister has done no more than put on record his agreement with a point that I felt was important in the context of the current position. That is the reason there was not an amendment on my part.
The registrars already have statutory functions, which require them to solemnise and register the marriages of previously divorced people and there does not appear to have been any problem with freedom of conscience or an opt-out clause. I strongly believe it would be contrary to public policy to allow for a situation where any of the nine protected grounds in existing equality law could have a loophole or a softening of the situation such as to allow what would be nothing short of discrimination. I am pleased the Minister has once again clarified the matter for the benefit of people who may not have been following the debate as closely as Deputy Howlin or other colleagues.
One of the faults of the current legislative regimes is that, given the number of committees and Committee Stage debates of Bills dealt with in the bowels of the House, in the absence of the media or adequate reporting of the debates, it often gives the impression that we are not engaged in the teasing out of the legislation or the debate. I make no apologies for asking the Minister to give the type of clarification that I sought and expected, and I thank him for so doing.
I wish to reply to a point raised by Deputy McCormack that I omitted to answer but, first, I wish to comment on Deputy Flanagan's last point. Thirty speakers contributed to the debate on Second Stage in this Chamber. There was a significant debate on this Bill in Committee, at which some members of the media were present, albeit from one or perhaps two newspapers, and RTE and others may have been following the debate. Therefore, it is not our fault that this Bill was not widely discussed by the public.
I advise Deputy McCormack that the cohabitation scheme is for non-marital, heterosexual and same sex couples. It kicks in after a period of five years if there are no children and two years if there are children.
It is two years if there are children but three years if there are no children.
No, I know what is in the Bill. We tabled an amendment on Committee Stage raising the period from three years to five years. In the case of a married couple, existing legislation provides that if the marriage breaks down immediately, there is an entitlement immediately for one partner to apply to the other for maintenance. If the marriage breaks down immediately, there is no period before the scheme kicks in. This is not discriminating against——
A partner cannot seek part of the estate.
A partner can apply for a maintenance.
Yes, maintenance. That is what we are talking about in the redress scheme. The redress scheme does not interfere with any succession rights,per se, because the two parties are alive when the application is made.
Amendment No. 4 is an alternative to amendment No. 3 and amendment No. 5 is alternative to amendment No. 4. Therefore, we will discuss amendments Nos. 3 to 5, inclusive, together.
I move amendment No. 3:
In page 13, to delete lines 14 to 22 and substitute the following:
"(2) This Act shall come into operation on the day that is 3 months after the passing of this Act.".
I will not labour this point as I made it on Committee Stage. I reaffirm my view that having clarity regarding the commencement of the Act is important. We have engaged in the passing of legislation in this House in the past which subsequently gave rise to some confusion. If commencement orders in respect of certain Parts of the Bill are immediately triggered and others take one month or more to be triggered, I am not sure if it is in the best interests of legislation that certain Parts of a Bill come into force at different times. It is preferable that we would have a commencement order to the effect that an Act would come into force on a particular day in its entirety. The Family Law (Divorce) Act, for example, is similar to that which we are debating now. If we had a lead-in time towards a specific date, it would give people an opportunity to become organised and familiar with the terms and conditions, particularly as we felt the need to change the Title of the Bill to include reference to cohabitants.
There is a view that there has not been the type of national publicity campaign that is both appropriate and necessary to ensure citizens and others living in Ireland are familiar with the broad-ranging consequences of the Bill. I am not fixed on a timeframe of three months; if the Minister were to specify that it will be done within four, five, six months or whatever, that would be fine. What is important is that the implementation of this legislation is not done in a piecemeal way. I ask the Minister to take on board my proposal that the Bill come into operation in its entirety on a specified date.
I said on Committee Stage that it is a normal feature of most legislation that there is flexibility for the Minister to commence all or part of the Bill as appropriate. The Minister indicated during the committee deliberations that he had given a commitment both inside the House and elsewhere to commence this Bill as soon as possible. Thousands of citizens are interested in its progress and wish to avail of its provisions as quickly as possible. Some, as I have indicated, may not be in the best of health and wish to regularise their arrangements, which may have been in place for many years, while they are still able to do so. There is an imperative on this House to conclude its deliberations on this matter, and on the Minister to make the appropriate commencement orders as soon as is practicable.
The Minister indicated that two other Departments, the Department of Finance and the Department of Social Protection, are working in tandem on drawing up taxation measures and social welfare provisions to mirror the new regime. I understand from the Minister's Committee Stage contribution that they are doing so on the basis of the Bill as published. Will the Minister indicate what progress those two Departments have made? We must have an assurance that once the Oireachtas has completed its deliberation and the Bill is sent to the President for signature, there will be no further delays arising from the inaction of other Departments in bringing the relevant provisions into effect.
I support this important amendment and hope the Minister will take it on board. I am not sure whether three months allows for the full passage of the legislation, but perhaps the Minister will indicate what impediments may arise to prevent its implementation within that timeframe. I assume the preparatory work has been done at this stage given that the passage of the Bill is well signalled and the relevant Departments are well aware of its provisions. I hope no delay will arise because of a failure of another Departments to undertake the preparatory work necessary to give full effect to the Bill within the three-month timeframe proposed by Deputy Charles Flanagan in amendment No. 3 or, at the very latest, by the end of the year. There is no reason that a delay beyond that should occur. I hope the Minister will accept the amendment.
Neither I nor the Government wish to pass legislation that is subject to a time limit within which it may not be possible to deliver the benefits that flow from this Bill in regard to social welfare and taxation provision. Both the Department of Finance and the Department of Social Protection have been working on the template for what is required. I understand the work of the Department of Social Protection is well advanced and that it expects to bring forward legislation in the autumn to implement the Bill's provision. The issue of taxation changes is a matter for the next Finance Bill.
Imposing a specific time limit on the commencement of this legislation is impractical in that we may well end up commencing a Bill that is not implementable because the corresponding legislation is not in place. There must be flexibility in regard to commencement. There is no desire to delay this in any way; we are not putting the social welfare and taxation issues on the long finger. There are two distinct issues involved here, namely, civil partnership and cohabitation. In respect of both — civil partnership, in particular — I am advised that a significant publicity campaign is required to ensure the public is aware of all aspects including, for example, the cohabitant redress scheme. Before the Bill is commenced we must ensure that existing and future couples know this legislation is on the Statute Book and what it contains.
In view of what the Minister has said I am reluctant to divide the House on the issue. I therefore withdraw the amendment.
I move amendment No. 4:
In page 13, lines 20 and 21, to delete "Social and Family Affairs" and substitute "Social Protection".
Amendments Nos. 4 and 5 are technical amendments which insert the correct titles of the relevant Departments.
I move amendment No. 5:
In page 13, line 29, to delete "Justice, Equality and Law Reform" and substitute "Justice and Law Reform".
I move amendment No. 6:
In page 14, between lines 2 and 3, to insert the following:
"3.—For the purposes of this Act, a reference to the presence of any person in the State or co-habitation in the State shall include presence or co-habitation while abroad in the service of the State.".
I have had direct contact with officers of the State who are working on missions abroad, including members of the diplomatic corps and military personnel posted abroad, to whom these provisions should apply. These are real people in real circumstances. They have indicated to me their concern that they may not be able to meet the requirements of the legislation by virtue of their obligation as part of their duties to have a residence abroad. We allow such personnel to participate fully in our democratic process because they are fully part of the State. Their domicile, although physically in another jurisdiction, remains in this State. Their allegiance is to the State, they are servants of the State and, as such, they should be entitled to avail of the provisions of this important enactment. It may have been an oversight that we did not include this provision earlier. I hope the Minister will respect those who serve the State on foreign missions by ensuring they are encompassed within and embraced by the provisions of this legislation.
There is no reference anywhere in the Bill to the "presence of any person in the State" or to "co-habitation in the State". Accordingly, the amendment simply has no effect. Persons working abroad in the service of the State are likely to retain their domicile for the purposes of the Bill. Anybody working for the State abroad does not normally change his or her domicile, which is very difficult to do in any case. Staff on a foreign mission on behalf of the Department of Foreign Affairs, for example, would be regarded under this legislation as being domiciled in the State even though they are living and working abroad.
I do not understand the first point made by the Minister. My amendment simply proposes to insert a new definition in the definitions section.
The word "presence", which occurs throughout the Bill, is to be interpreted in the way I have indicated in this definition. That is the purpose of the amendment, so I have no idea what the Minister means when he says it has no effect. For the purpose of the Act, the reference to the presence of any person in the State, or cohabitation in the State, shall include a presence or cohabitation abroad in the service of the State. It is amendment to the interpretation section, I want to reinterpret the world "presence" as it occurs in the Bill.
We can have a further debate regarding "domicile", as we did on Committee Stage on a different point, where I was concerned about the requirement for a one year domicile in the State for certain provisions. The Minister was strongly of the view that domicile is a hard thing to lose. I have taken advice on this and I am not sure the Minister is correct. There are people whose domicile might be outside the State who would be precluded from taking advantage of the provisions of this enactment. I do not see how it does a disservice to the Minister — I welcome his commitment that officers of the State will be included in this while serving abroad and that their service abroad will not affect their entitlement to the provisions of this Act. There are, however, people whose formal domicile is abroad, and they can be abroad for many years in the service of the State, on double tours for instance. If the Minister agrees with me these people should be covered by the legislation, why do we not say so specifically?
It is a well known legal fact that it is hard to lose one's domicile.
But it is not impossible.
No, but a person can purposely do an act that would negate his domicile here. The legislation states that the court can only make an order if one of the civil partners is domiciled in the State on the date of the application. Someone who has just temporarily changed his residence on behalf of the State working in a mission abroad who wants to apply under this legislation would not be regarded as having been domiciled in that foreign territory because their domicile of origin would be in Ireland.
That would be the norm but not necessarily universal.
That is exactly the same for existing legislation pertaining to divorce and it has not been a problem. I refer the Deputy to the Supreme Court judgment in 2003 of Tv. L, relating to the foreign divorce of a married couple who had emigrated to the Netherlands in 1988. The court concurred with the prior finding of the High Court that their Dutch divorce, obtained in 1994, was not recognised in Ireland on the basis that the husband’s domicile was still in Ireland. In that judgment, Mr. Justice Keane remarked: “Evidence as to the form of residence in a foreign country so dependent on the particular personal circumstances of the person alleged to have been abandoned, a domicile of origin is very far removed from evidence of a fixed intention to make one’s permanent home in a foreign country, which the authorities stipulate as the essential precondition to finding that a domicile of origin has been abandoned and a domicile of choice acquired.” Unless there is a purposeful act of change of domicile, this legislation will apply to existing representatives working for the State abroad.
The way we do business in the House is sometimes frustrating. I accept the case the Minister is making will capture most cases. There will, however, be an exception where someone will be excluded because the domicile is not clear. It does no disservice to accept this amendment. In most legislation, the starting premise of Departments is to find the argument against it, and there is an argument against everything, but if this does no harm and meets the requirements of the House to ensure this is done, I cannot see why the amendment cannot be accepted. Clearly the Minister thinks it is redundant but that also means it is not of any injury while in my view it makes it clear that we are including foreign service officers or personnel serving abroad with the military or long-term servants of the State who are out of the jurisdiction and whose domicile may, for a prolonged period of time, not be of the State.
The Minister, however, is not minded to be flexible on the matter and there are significant other issues to address.
It is unnecessary, it is up to the court to decide the domicile.
I fully accept the Minister will be right in 99.99% of cases. There will be a case, however, where domicile will be an issue and this might help. That is why I would have liked the Minister to accept the amendment.
I move amendment No. 7:
In page 14, to delete lines 31 to 33 and substitute the following:
"(ii) prior to the death had ever been ordinarily resident in the State for a period of one year.".
This amendment gets to the meat of the Bill. Section 4(2) of the Bill addresses the declaration of civil partnership status. It reads:
The court may only make an order under subsection (1) if one of the civil partners—
(a) is domiciled in the State on the date of the application,
(b) has been ordinarily resident in the State throughout the period of one year immediately preceding the date of the application, or
(c) died before the date of the application and—
(i) was at the time of death domiciled in the State, or 30
(ii) had been ordinarily resident in the State throughout the period of one year immediately preceding the date of death.
We debated this on Committee Stage because I felt that is a very narrow definition, that it had to be that calendar year, the calendar year immediately preceding the date of death, the person had to be resident in the State. In my amendment, there is a better, more open and encompassing suggestion that "prior to the death had ever been ordinarily resident in the State for a period of one year". The Minister thought that was too loose. I agreed that it was somewhat loose but I tabled it again because the Minister's definition is too narrow and he indicated he would think about this again.
His argument against my proposal was that it would create too loose or distant a connection to the State. I was perplexed on Committee Stage why one calendar year, that preceding death, was not a bit loose but any other 12 month period was. I did not get an explanation from the Minister about why it had to be that particular 12 months. Perhaps the formulation I have used is not ideal but the Minister's formulation is not ideal either and I had hoped he would come back on Report Stage with a loosening of this requirement. It might affect people who could not strictly comply with the requirements of section 4(2)(c) as indicated. I would be interested to hear if the Minister has reflected on this and if he proposes to introduce any further amendments, perhaps in the other House.
We had an intense discussion on this issue and we looked at it again. I still feel that deleting this would negate the necessity of the person having some connection with the State. This refers to declarations as to civil partnerships and we think it will be used only in very rare circumstances because if, after the passage of the Bill, a person enters into a civil partnership here then she or he will be always entitled to be treated as a civil partner unless and until that partnership is dissolved. Likewise, if a person has entered into a civil partnership elsewhere and both of the couple are alive on the date the relevant order recognising that relationship comes into effect, he or she will be always entitled to be treated as a civil partner for the purposes of Irish law unless that civil partnership is dissolved. This includes all of the relevant rights and obligations which accrue under civil partnership including succession, pensions and shared home protection. The situations in which a declaration as to the status — this is to what the section refers — may be required are, for example, where a relationship entered into in another state was dissolved and there is a question about the validity of that dissolution and whether it took place in the same state or another, or perhaps where a civil partnership entered into in this jurisdiction was purported to be dissolved in another state after the couple concerned had moved their permanent domicile elsewhere. This may have implications for whether the civil partner is free to enter a new civil relationship or whether the person has certain succession rights.
In a case where the relevant person does not have a direct or continuing connection with the State it is simply not appropriate to confer jurisdiction on our courts to deal with such matters. The jurisdiction we will confer on courts here in this respect is directly comparable with the jurisdiction on marital status already provided. This is based on clear and well-understood principles of jurisdiction and international private law. The reference to the year is to ensure there is a connection with the State before the declaration can be made.
I fully accept there should be such a connection. The narrowness of the definition of the connection, that it must be the particular 12 months immediately preceding the date of death, is a trip-wire that will trip up some people. The Minister is probably right that the number of cases will not be huge but it is a trip-wire that we need not include. We need a looser definition. All we are talking about is enabling the courts to make an order. The courts will act in a just fashion but this will place a barrier to their ability to do so. Section 4(2) states that the court may only make an order under section 4(1) if the conditions in section 4(2) apply. Even if the court is convinced of the justice of the matter, feels there is a case to be met and that justice requires such an order, if the technical requirement that one of the parties had not been ordinarily resident in the State throughout the period of one year immediately preceding the date of death is not complied with, it is an impediment to the court acting.
As the Minister rightly stated, it is simply a formulation to define connection. If we loosen it somewhat all it will do is allow somebody to make a case in court and nothing more. The courts will act in a just way as is their wont. Perhaps the formula of words I used is too loose. Perhaps I should have done my homework better during the gap between Committee Stage and now but I had hoped, with the commitment given by the Minister, that he might have come up with an amendment to broaden his formulation somewhat.
I honestly believe, and it is also the view of experts in legal circles, that the proposed legislation relating to property rights is too simplistic, particularly in terms of protecting cohabitants. The legislation is being rushed through and it is a very complicated area to get right. By rushing it through we could end up with lame duck legislation. The provisions on financial dependency will not necessarily ensure that the vulnerable party is protected when and if the relationship breaks down. I have issues with this. It is being rushed, which I stated with regard to other legislation earlier in the week.
I did not want to speak given the nature of the amendments being proposed, the thrust of which I agree with. However, given what Deputy Mattie McGrath just said, the Bill cannot come too quickly. People have waited far too long for it to be passed. We had very thorough Second Stage contributions and we have plenty of time to discuss the issues and they are being discussed in a good manner.
We have already had Second Stage and we are dealing with amendments.
The Bill will be passed without a vote being called. However, I hope a vote is called so that all those in favour of the legislation can put it on the public record. Perhaps this is in the Minister's remit.
I am not sure how to react to that. We intend to pass the Bill in the Dáil today and it will then go to the Seanad. I am not sure to what Deputy Gogarty is referring.
There should be a unanimous vote in favour of the Bill. The vote will not be recorded.
There will be a vote at 9 p.m.
We are in a democracy.
Deputies of all shades and colour are entitled to their views in this House.
I hope so.
To answer Deputy Mattie McGrath on whether the Bill is rushed, it was published in June 2009 so we are a year and a month at it. There was significant debate on Second and Committee Stages and we are now on Report Stage.
To respond to Deputy Howlin on section 4 to which the amendment relates, under section 29 of the Family Law Act 1995 the same provisions are in place on declarations with regard to married couples. This is a standard mirror image of what is already in existing law with regard to marital status. I do not feel we should depart from something that is already in law and probably has been tested in court.
Amendments Nos. 8 to 10, inclusive, are related and may be discussed together.
I move amendment No. 8:
In page 15, line 24, to delete "may" and substitute "shall, on the commencement of this Act".
I was hoping the Minister would have examined since Committee Stage the matter of recognition of registered foreign relationships. The Bill, as drafted, states the Minister may, by order, declare that a class of legal relationship entered into by two parties of the same sex is entitled to be recognised as a civil partnership under the law of the jurisdiction in which the legal relationship was entered into if various criteria included in the Bill are met. If the Minister may do it, then the Minister may not do it and I have a problem with that. If the Minister may not do it there is an element of uncertainty. It is important that the Minister immediately declare the class of relationships currently entitled to recognition and, at the same time as we complete the Bill, lay an order before the Houses of the Oireachtas. Many gay couples have registered or married abroad and they need immediate clarity on the status of their relationships and their recognition in this jurisdiction. It is incumbent on the Minister to declare the various classes to which recognition will be forthcoming rather than having a situation which, under the current reading, is less than certain.
My amendments differ from those tabled by Deputy Flanagan. Amendment No. 9 states, "including a relationship entered into prior to the commencement of this section". Section 5 states, "The Minister may, by order, declare that a class of legal relationship entered into by two parties of the same sex is entitled to be recognised as a civil partnership if under the law of the jurisdiction in which the legal relationship was entered into" it fulfilled a number of criteria. We should add to that the term, "a relationship entered into prior to the commencement of this section". We are starting at ground zero on this. There needs to be clarity in respect of relationships which have been solemnised and voluntarily entered into in other jurisdictions before the commencement of this section.
Clearly, Irish gay couples could not enter into a civil partnership relationship in this jurisdiction up to now and will not until this provision is enacted. We need to give clarity to such couples on the recognition of relationships that have been solemnised in other jurisdictions before the commencement of this section. There should be no doubt or ambiguity in that regard and the insertion of my amendment would meet that need. Amendment No. 10 states:
In page 15, between lines 43 and 44, to insert the following:
"(3) Notwithstandingsubsection (2), where—
(a) one of the persons in the civil partnership dies before the commencement of this section and before a declaration that a civil partnership of that class is entitled to be recognised,
(b) the foreign civil partnership was entered into after 1 January 2004,
(c) the foreign civil partnership was between persons both or either of whom were or was citizens or a citizen of Ireland, or residents or a resident of Ireland, on the day of the registered foreign relationships,
then the foreign relationships to which this section applies shall be and shall be deemed always to have been valid as to form if it would have been so valid had it been registered in the State.
(4) An tArd-Chláraitheoir may, on production of such evidence as appears to him to be satisfactory, cause a registered foreign relationship to which this section applies to be registered in a register to be maintained in Oifig an Ard-Chláraitheoir.".
We discussed this issue on Committee Stage. This is important. A number of couples have entered into foreign relationships, in particular since civil partnership became legal in Northern Ireland, and there should be clarity in regard to carrying that through into the Republic.
The Minister, I recall, gave a commitment to reflect further on this. He said he would revert to me on it but he believed the amendment was not necessary. However, he said he would reflect further and take further legal advice, which I hope he has done. I read again what the Minister said on Committee Stage regarding these matters. We have no difficulty in terms of the objective of the amendment. The Minister feels it is unnecessary and I would like to hear his comments on whether he has thought about it or has received further advice from the Attorney General on this matter since we last debated it.
We are dealing with amendments Nos. 8 to 10, inclusive. For the purposes of clarity and record I will set out the rationale in order that our position on each of the amendments is understood. Section 5, to which the amendment relates, provides that the Minister may make an order recognising certain categories of foreign legal relationships as entitled to the same treatment as a civil partnership under Irish law.
Amendment No. 8 tabled by Deputy Flanagan would have the effect that such an order made under section 5 could be made only once on the commencement of the Act. This would only allow us to recognise new categories of relationship as equivalent to civil partnerships which were established by other countries after the commencement of the Act. I reiterate that given that the law internationally on the recognition of same sex relationships is evolving, it is essential that we have the flexibility to make orders on an ongoing basis to reflect these changes. The manner in which the amendment is phrased would mean that the Minister shall, on the commencement of the Act, that is, once and only once, be able to make orders. We would not be able to make any further orders to take into account the changing international legal environment.
On the questions of "shall" versus "may", in some cases time may be required to examine the nature of the category of a relationship from another jurisdiction to determine whether it meets the criteria in subsection(1)(a) to (d), inclusive, for recognition here as a civil partnership. A mandatory requirement that the Minister make an order may expose the State to damages purely for the reason that a given class of relationship is not immediately recognised because careful examination is required or simply because information is not readily available in one of the national languages. I assure the Deputy that given the degree of cross-party support for this Bill and its benefits for same sex couples there is little likelihood of the scenario of a Minister not being prepared to make a relevant order at the appropriate time.
On amendment No. 9, tabled by Deputy Howlin, as I indicated on Committee Stage a relationship entered into prior to the making of an order under section 5 is also recognised by that order. The wording of section 5 makes this abundantly clear. A relevant relationship is recognised from the later of the dates on which the order took effect or on the date on which the relationship was entered into. If, for example, a couple entered a civil partnership in the United Kingdom in 2006, their relationship would be recognised as and from the date on which the relevant order takes effect. If a couple entered a same sex marriage in Spain in 2012, a relevant order having been made in 2011, their relationship would be recognised as and from the date of their marriage. My officials and the Office of the Parliamentary Counsel considered this issue carefully before drafting the Bill. Following the debate on Committee Stage we again received confirmation from the Office of the Attorney General that it believed our interpretation is correct and is the only one possible in this respect.
Amendment No. 10, tabled by Deputy Howlin, would allow the recognition of a foreign civil partnership where one of the partners dies before the section is commenced and possibly before the commencement of the Bill. The effect would be to give recognition of a foreign registered civil partnership entered into, for example, in 2006, where one of the partners died in, for example, 2008 when civil partnership was not recognised in this State. This would introduce grave uncertainty for the tax code and succession law. As I explained during our extensive discussion on this point on Committee Stage, it is not acceptable to provide for retrospective recognition of foreign civil partnerships where there is a potential detriment to third parties, for example, by improving the share of the surviving partner in the deceased partner's estate.
The Deputy argued that the Marriage Act 1972 provides a direct precedence to allow for retrospective recognition. I do not accept this. There is a substantive difference between an opposite sex couple who marry in another jurisdiction with the belief that the marriage is internationally recognised and binding and that of a couple who entered a civil partnership elsewhere in the full knowledge that no provision is made in Irish law for the recognition of that relationship. In the first case, the couple assume and have always assumed that they are married for the purpose of Irish law, with all its obligations and rights. In the latter, the couple can have no assumptions in regard to the rights and benefits which accrue to them under Irish law. The amendment would also have a discriminatory effect on the basis of nationality. Some, out of a particular category of legal relationships where a partner has died, would be recognised as existing at a particular time whereas others would not, depending on whether one or both partners was Irish or resident in Ireland at the time the relationship was registered. A further anomaly would arise simply if a couple registered their relationship before the arbitrary cut-off point of 1 January 2004.
On Committee Stage we also discussed the proposed new subsection (4), which would create a new function for an tArd-Chláraitheoir by enabling him or her to register relationships entered into in another jurisdiction as civil partnerships. I stated during that discussion that the making of a ministerial order under section 5(1) is in itself sufficient to entitle parties to foreign registered relationships to be treated as civil partners of each other under the law of this State. There is no requirement for re-registration. Opposite sex couples who marry in other jurisdictions are neither required nor permitted to re-register their marriages under Irish law and there is no reason couples who are entitled to be treated as civil partners should do so either.
In view of what the Minister has said, I withdraw my amendment.
I move amendment No. 9:
In page 15, line 25, after "into" to insert the following:
"(including a relationship entered into prior to the commencement of this section)".
I will not press this amendment because I welcome the clarity of the Minister's intervention. As I indicated when I spoke on it previously, we are not at odds on its purpose and given the Minister's assurances and the Attorney General's confirmation regarding the applicability of section 5, I withdraw my amendment.
I move amendment No. 10:
In page 15, between lines 43 and 44, to insert the following:
"(3) Notwithstandingsubsection (2), where -
(a) one of the persons in the civil partnership dies before the commencement of this section and before a declaration that a civil partnership of that class is entitled to be recognised,
(b) the foreign civil partnership was entered into after 1 January 2004,
(c) the foreign civil partnership was between persons both or either of whom were or was citizens or a citizen of Ireland, or residents or a resident of Ireland, on the day of the registered foreign relationships, then the foreign relationships to which this section applies shall be and shall be deemed always to have been valid as to form if it would have been so valid had it been registered in the State.
(4) An tArd-Chláraitheoir may, on production of such evidence as appears to him to be satisfactory, cause a registered foreign relationship to which this section applies to be registered in a register to be maintained in Oifig an Ard-Chláraitheoir.".
I referred earlier to the Marriages Act 1972. As legislators, we often shape the law to suit our needs. Beginning in 1953, genuine couples went to Lourdes to attend religious ceremonies and receive a form of blessing. As they presumed themselves to be married, the State decided in 1972 to retrospectively validate their relationships as if they had been genuine Irish marriages from the beginning. Between 1953 and 1972, some of the individuals concerned died and the arrangement of their affairs on the basis of marriage was retrospectively validated. It is amazing what can be done when there is a will.
Only when Lourdes is involved.
That is a miracle, of course. I mention the Act as a legal precedent but I am not further minded to fight the Minister on the amendment. I recognise that difficulties might arise in the formula I used but I am concerned about circumstances where one of the parties to a civil partnership dies before the commencement of this section. I accept the Minister's word that the prospect of this has been properly addressed and that an tArd-Chláraitheoir is in a position to register relationships entered into abroad. This would be more secure legally than the religious blessings validated by the 1972 Act.
Amendments Nos. 11 and 12 are related and may be discussed together.
I move amendment No. 11:
In page 21, line 44, to delete "shall make" and substitute "shall orally make".
On Committee Stage I signalled my intention to move these amendments. Amendment No. 11 provides that intending civil partners must make their declarations orally. An tArd-Chláraitheoir advises this is essential so that the registrar can be satisfied that the partners understand the nature of the civil partnership.
A registrar must be also satisfied under section 59D(2) of the Civil Registration Act, as inserted by this Bill. Amendment No. 12 is consequential to Amendment No. 11, which provides that it is mandatory to make declarations orally in the provision of civil partnership ceremonies under section 59D(5). It is no longer necessary to specify that the declarations may be made orally and accordingly Amendment No. 12 deletes the word "orally".
I move amendment No. 12:
In page 22, line 30, to delete "declarations are made orally in" and substitute "declarations are made in".
I move amendment No. 13:
In page 22, to delete lines 33 to 40 and substitute the following:
"(6) (a) The witnesses shall sign the form after the parties to the civil partnership have done so, and the registrar shall countersign the form.
(b) The parties’ civil partnership shall be taken to be registered upon the counter-signature of the registrar.
(c) As soon as practicable after the signatures and counter-signature, the registrar shall give the parties a copy of the form referred to in paragraph (a), enter the particulars in relation to the civil partnership in the register and register the civil partnership in a manner that an tArd-Chláraitheoir may direct.”.
This amendment redrafts section 59D(6). New subsection (6)(a) replicates exactly part of the original provision. New subsection (6)(b) ensures that a civil partnership is taken to be registered from the moment the registrar countersigns the couple’s witnessed civil partnership registration form. The Bill refers extensively to civil partnership registration and the rights and duties that accrue therefrom but it is essential to be clear that such rights and duties take effect on the completion of formalities by the countersigning of the registration form by the registrar. New subsection (6)(c) adds a requirement on the registrar to provide a copy of the signed civil partnership form to the parties.
I move amendment No. 14:
In page 26, lines 48 to 50, to delete "consultant psychiatrist within the meaning of section 2(1) of the Mental Health Act 2001" and substitute "registered medical practitioner".
The purpose of this amendment is to provide that an objection on the grounds of incapacity of one of the parties to consent to an intended civil partnership must be accompanied by a certificate made by a registered medical practitioner rather than a consultant psychiatrist. I am proposing this change on the advice of an tArd-Chláraitheoir.
This amendment mirrors the position in respect of marriage. The certificate of a registered medical practitioner is sufficient to support an objection to a marriage on the grounds that one of the parties lacks the capacity to give full, free and informed consent. An tArd-Chláraitheoir has pointed out that the three-month notice period prior to registration of a civil partnership may not allow sufficient time for a party whose capacities is in doubt to be examined by a consultant psychiatrist. The opinion of a medical practitioner who knows the person concerned is considered to be sufficient to support an objection in the case of marriage.
Perhaps the Minister will outline the procedure involved where somebody presents the registrar with a medical certificate signed by a registered medical practitioner. Is such a certificate automatically taken at face value or is a process initiated to ensure it is valid and to determine how the medical practitioner arrived at his or her opinion?
Given the nature of this Bill and the prejudices that continue to exist in our society, there may be a higher risk of spurious claims about the mental health of the individuals concerned. Such claims could be aided and abetted by family doctors. I acknowledge this may be just a conspiracy theory.
Even in the case of marriage, having only one doctor provide a certificate supporting an objection is risky. A second opinion, even one from a doctor known to the first doctor, would be desirable.
In that context, has the Minister considered the ramifications of spurious objections being made? Are there plans to revisit this issue, including from the perspective of marriage? That a family doctor or a doctor who is friendly with a relative can sign off on a person's mental capacity or ability to give consent carries a certain risk both in the case of same sex and opposite sex civil unions and in the case of marriage. Are there plans to ring-fence this issue in future by introducing a requirement that two doctors sign such a certificate?
My understanding is that the Minister's proposals merely conform to the position that pertains with regard to a marriage ceremony. If that is the case, I concur with him and welcome the amendment.
The Civil Registration Act 2004 already contains provisions in this respect similar to those being inserted here. While I understand the point Deputy Gogarty makes, his express wish is that civil partnership should be as close to marriage as possible. The form of objections that may be made to the partnership and its registration is one of the areas in which the legislation's provisions equate to those in place for marriage. The experience has been that such objections are rarely raised, at least in relation to marriages, and I hazard a guess they will also be rare in the case of civil partnerships. If anyone has an objection, it must not be frivolous because it may not be included unless the person objecting obtains a certificate from a registered general practitioner who knows the person involved.
Such cases have occurred.
We cannot preclude every possibility.
I referred to the process involved.
There is no process as such, other than a letter of objection from——
If such a letter were to be obtained, would the ceremony be stopped or does the registrar have flexibility?
Registrars have flexibility in the matter and this is set out in the legislation. I suggest the provision should be left as it is identical to that pertaining to marriage under the Civil Registration Act 2004.
While one seldom hears of cases of marriage ceremonies being interrupted, one such case occurred in my constituency in the past fortnight when the Irish Naturalisation and Immigration Service arrived at a registrar's office in the middle of a marriage ceremony and served an order on the registrar to cease and desist the ceremony on the basis that it has been contrived for the purpose of status. I do not know if the Minister has taken advice on this matter but the problem in such cases is that it is difficult to find out how such interventions can be undone. Counsel for the couple whose marriage was stopped has applied to the Garda and registrar for clarity. The former has indicated it no longer has an objection to the marriage taking place, while the latter will not proceed. I wonder about the process involved and whether it is an issue, in general terms, that we may need to revisit.
The process is set out in section 59F(11), under which a party to a proposed civil partnership may appeal the decision of an tArd-Chláraitheoir to the Circuit Court. Section 59F(12) sets out the jurisdiction of the Circuit Court. Ultimately, it would be a matter for the court to decide on whether to uphold the objection.
I move amendment No. 15:
In page 27, to delete lines 1 to 37, and substitute the following:
"59G.—If a party or a witness to a civil partnership registration does not have sufficient knowledge of the language of the registration to understand the registration documents or the declarations, the parties shall have an interpreter present who shall—
(a) before the parties make the declarations, sign, in the presence of the registrar, a statement to the effect that the interpreter understands and is able to converse in the language in respect of which he or she is to act as interpreter and give the statement to the registrar, and
(b) immediately after those declarations are made, give the registrar a signed certificate written in the language of the registration, to the effect that the interpreter has faithfully acted as interpreter.
59H.—The parties to a registered civil partnership shall be taken to be civil partners of each other as soon as the registrar has countersigned the civil partnership form as required by section 59D(6)(a), regardless of whether the registrar has performed the actions required of him or her under section 59D(6)(c), and all duties and benefits that accrue to civil partners under the Act of 2010 or any other law accrue to them.”.
Amendment No. 14 substitutes sections 59G and 59H. The substitution of section 59G is related to amendment No. 11, making it mandatory for declarations to be made orally. Amendment No. 15 provides that interpretation is required if either of the parties or their witnesses do not understand the language in which the declarations are made. It removes provision for the translation of documents which will no longer be required since interpretation will be an absolute requirement where any party does not understand the language of the declarations.
The redraft of section 59H is related to the changes made in amendment No. 13. It ensures the parties are taken to be registered civil partners and entitled to all its benefits and subject to all its obligations after they have made their oral declarations and the civil partnership registration form has been signed, witnessed and countersigned. The section specifies that a couple are civil partners regardless of whether the registrar has entered their details into the civil partnership register. The acquisition of rights and duties is not contingent on the formal entry into the civil partnership register to be maintained by the General Register Office. It is important to clarify this matter as the entry into the registrar may take place some time after the declarations are made and the form signed.
I do not have a problem with any aspect of this amendment, which is reasonable and welcome.
Amendments Nos. 16, 17 and 40 are related and may be discussed together. I remind Deputy Flanagan that his amendment No. 17 will not be discussed should amendment No. 16 be carried.
I move amendment No. 16:
In page 37, between lines 13 and 14, to insert the following:
"38.—No land registration fee, Registry of Deeds fee or court fee shall be payable on any transaction creating a joint tenancy between civil partners in respect of a shared home where the home was immediately prior to such transaction owned by either civil partner or by both civil partners otherwise than as joint tenants.".
The amendment provides that the creation of a joint tenancy in a shared home shall be exempt from a range of fees which are normally chargeable on such transactions. It differs from Deputy Flanagan's amendment in one key respect, namely, it does not specify that such transactions shall be exempt from stamp duty. This has attracted some commentary in recent weeks. I make absolutely clear that the reason the section does not deal with stamp duty is that all tax consequences of civil partnership will be dealt with in the next finance Bill following the enactment of the Civil Partnership Bill. Government policy is that civil partners will be treated in exactly the same way as spouses under the taxation and social welfare codes. The matter will be addressed in the Finance Bill.
I welcome the commitment made by the Minister. This issue arose on Committee Stage and I am pleased he has taken on board a suggestion made in that debate. The only difference between the Minister's amendment and my amendment is in the matter of stamp duty. I am disappointed that express mention of stamp duty is not made in the amendment. My amendment makes clear that stamp duty would not be paid on the creation of a joint tenancy in the family home exemption. This would conform precisely with section 14 of the Family Home Protection Act 1976.
The Minister has indicated that while he does not propose to expressly include in the Bill the term "No stamp duty", which features in my amendment, stamp duty will not be paid, having regard to the taxation policy to which he adverted. Assuming that is the case, I am prepared not to move amendment No. 17.
The Minister indicated the next finance Bill will provide that stamp duty will not be paid on certain transactions. Will these provisions have retrospective effect if this legislation is enacted and commenced prior to the enactment and commencement of the Finance Bill?
When the Bill was first published concerns were expressed that certain matters were not included in its provisions. The matters were taxation, social welfare and health-children provisions. I would have preferred if the issue of children had been addressed in this measure but this was not done and no such provisions are before us.
I accepted from the beginning the Minister's explanation that the social welfare and taxation matters would be dealt with in the next social welfare Bill or the next finance Bill, which is how it will be. However, it would be helpful if the Minister would indicate — as he has already done in Committee — the intention of the Government in regard to the social welfare and taxation provisions. Obviously I do not expect the Minister to outline the specific sections of Acts that will be amended. However, I would like him to indicate the Government's broad intention in those two matters.
On this issue we are generally on the same page. It is just a matter of when it will take effect. The Department of Finance is adamant that taxation law cannot be changed in any Act other than in a finance Act. That is one of the reasons we did not accede to the request from, I believe, Deputy Charles Flanagan, to have the Bill enacted within three months. If we were to do that, there would be no taxation provisions flowing from the intentions of the Bill in place within three months because obviously the next finance Bill will be after the budget.
Is it the Minister's intention not to commence this Act until the enactment of the finance Act?
In regard to the taxation issues, that would be the case. We obviously need to wait for the taxation provisions to be changed which can happen only by way of a finance Act. That has always been the position, which is why we need that flexibility. In answer to Deputy Ó Snodaigh, it would not be possible to make it retrospective because some people would have already paid. It is not possible to make changes to taxation and stamp duty on the basis that people would have already paid. It could possibly be done, but there would be a loss to the Exchequer in that respect. Our intention is to dovetail these pieces of legislation so they become applicable on the one day.
What is the general thrust of the intention of the social welfare provisions?
It is to give the same rights from a taxation and social welfare point of view to same-sex couples that married couples have.
How much money would be lost to the Exchequer on stamp duty between the passing of this legislation tonight and the passing of the finance legislation? Could an arrangement be made for that intervening period? I believe the amount of money would be small to the Exchequer but would mean quite a bit to the couples involved.
I do not have those figures. They would be matters for the Departments of Social Protection, and Finance. When we embarked on this suite of legislation it was always understood that there would be some cost, but I would not expect it to be a significant cost.
Amendments Nos. 18 and 19 are related and may be discussed together.
I move amendment No. 18:
In page 42, between lines 6 and 7, to insert the following:
"50.—(1) The court may, on making a maintenance order undersection 44, order the maintenance debtor in addition, or instead of such an order, to make a lump sum payment or lump sum payments to the maintenance creditor of such amount or amounts and at such time or times as may be specified in the order.
(2) The amount or aggregate amount of a lump sum payment or of lump sum payments to a maintenance creditor under an order under this section shall be—
(a) if the order is instead of an order for the making of periodical payments to the maintenance creditor, such amount as the court considers appropriate having regard to the amount of the periodical payments that would have been made, and the periods during which and the times at which they would have been made, but for this section, and
(b) if the first-mentioned order is in addition to an order for the making of periodical payments to the maintenance creditor, such amount as the court considers appropriate having regard to the amount of the periodical payments and the periods during which and the times at which they will be made.
(3) The amount or aggregate amount of a lump sum payment or of lump sum payments provided for in an order of the District Court under this section shall not exceed €6,350.".
Amendments Nos. 18 and 19 insert additional provisions relating to the maintenance of civil partners, which are relevant to existing provisions for spouses in the family law code. A civil partner may apply under section 44 for maintenance from the other civil partner, while the couple are still legally civil partners of each other. Where a maintenance order has been made under section 44, amendment No. 18 inserts a new section 15 to allow the court to make lump-sum maintenance orders. Amendment No. 19 inserts a new section 51 to allow a court to make secured maintenance orders. These amendments give the maintenance creditor greater assurance that the maintenance will be paid.
Can the Minister confirm these provisions will accord a similar regime to that which exists in respect of spouses under current law?
I can confirm that. We signalled these because they mirror sections 41 and 42 of the Family Law Act 1995, which allows the making of lump-sum orders and secured periodical payment orders for spouses without the requirement for a judicial separation. In particular this provides that the court may make lump-sum orders and secured orders when making a maintenance order under the Family Law (Maintenance of Spouses and Children) Act 1976.
I move amendment No. 19:
In page 42, between lines 6 and 7, to insert the following:
"51.—The court may, on making a maintenance order undersection 44 or at any time after making such an order, on application to it by any person having an interest in the proceedings, order the maintenance debtor concerned to secure it to the maintenance creditor concerned.”.
Amendments Nos. 20 to 24, inclusive, are related and amendment No. 22 is an alternative to amendment No. 21. Amendments Nos. 20 to 24, inclusive, may be discussed together.
I move amendment No. 20:
In page 48, line 28, to delete "subject to subsections (3) to (7),".
We had some debate about this amendment on Committee Stage. It arises from a submission we received from the Law Society, which claimed this amendment is required. It seeks to avoid what the Law Society believes is guaranteed litigation and guaranteed uncertainty. If the amendment is agreed the share of the surviving partner in a civil partnership is clear and certain and there will be less likelihood of visits to the courts. The position would be on a par with the position that obtains under existing law in respect of surviving spouses, which is as it should be. In the absence of the amendment, there would be uncertainty and more than that there would be a positive incentive for people to litigate. As I believe I said on Committee Stage, it speaks volumes that people who make their living from litigation should say this is a bridge too far and request not to bring uncertainty and almost unavoidable visits to courts upon them.
On Committee Stage the Minister indicated that he did not particularly want to accept the amendment because of some constitutional fear that it was too close to marriage and that in terms of the Succession Acts he wanted some differentiation. I am minded to take careful note of what the Law Society recommends in this matter. Certainty should be one of the hallmarks of all legislation we pass. If the professionals in this regard are indicating that we should make this amendment, we should pay careful attention to that. The Minister will have had an opportunity to revisit the case I made at some length on Committee Stage, reading into the official record the stated case of the Law Society. I do not propose to take up the time of the House in doing that yet again. I would have hoped the Minister would have had a chance to reflect on it since Committee. The general reason he gave for not accepting it was that we needed to somehow nod to the Constitution as this would be perceived as mirroring marriage that might undermine the enactment. I do not believe a good case was made in that regard.
The Attorney General has advised that it is essential to provide additional rights for the children of an intestate civil partner in order to vindicate the constitutional protection of the marital family. Thus children of a deceased civil partner may apply to the court for provision out of the estate. This applies regardless of whether the children are the children of a prior marriage, because I do not consider it acceptable to treat children differently under succession law on the basis of whether their parents were married. The effect of subsection (3) in this case may be to reduce the share of the estate taken by the surviving civil partner. This is mitigated by providing in subsection (3) that provision be made for a child only if the court is of the opinion that it would be unjust not to make the order after considering all the circumstances, including those set out in subsection (3)(a) to subsection (3)(d). This is a balance struck on the provisions so that the constitutional position is respected, while ensuring the civil partner is not unjustly deprived of a share in the partner’s estate.
Deputy Howlin highlighted that the effect of the provisions he seeks to delete is to remove certainty on succession on intestacy for a person whose civil partner has children. He is correct in this. Where a deceased civil partner dies intestate with no children, the provisions on intestacy are identical to those for a spouse with no children. Where a deceased civil partner dies intestate and has children, subsections (3) to (7) allow the child of the civil partner to apply for a greater portion of the estate than the intestacy provisions set out, and this may cause greater uncertainty for the surviving civil partner in particular. The share for which that child may apply is for a maximum of the portion of the estate to which he or she would have been entitled had the parent died with no spouse and no civil partner.
These provisions have been carefully construed in close consultation with the Attorney General in order to protect the constitutional rights of the civil partner's child, who may be the child of a marital family. I do not accept that there will be a flood of litigation and the numbers of affected surviving civil partners may very well be small. An application to court may arise under the section only if there is no will and if the deceased civil partner has children, whether from a previous marriage or otherwise.
By rejecting this amendment the Minister will end up discriminating against the children.
He is setting two standards, although I may be incorrect. This section illustrates my argument as to why we should have gone for full civil marriage. In that case there would be full rights across the board. I will not take up time today on the issue but this is one instance where there is a failure to deliver full rights to civil partnership and an approach of civil marriage would have had a better effect in this case and been more equal for all involved.
I will not labour the point as we deliberated on it at some length on Committee Stage. I find it regrettable that the Minister is not for turning, notwithstanding what he said about the legal advice of the Attorney General. In effect we are introducing an element of discrimination by treating the child of a civil partner differently. Later in the legislation we can see that what we are doing does not have the same applicability in respect of cohabitees.
I believed a fairly compelling case was made in the submission from the Law Society but if the Minister is not for turning on the issue, I am unsure as to whether further debate will be of any great benefit. There is an issue which may have to be revisited at some future stage.
I also regret that the Minister has not moved his position since Committee Stage. The Minister was part of the group which spent two years in a committee debating the constitutional amendment relating to children. The objective we had in that committee was to craft an amendment to ensure all children were treated equally. We hope to put that amendment to the people before the end of the year or as soon as is practicable.
We rehearsed and examined the application of all the laws of the State as they affect children and we must correct many anomalies. Two very eminent counsels assisted the committee in its deliberations and we considered the ways in which children were treated in a different fashion.
There would be a case for the Minister to make if he was making improvements for children in general and if his suggestion was one of general application but creating a specific way of dealing with the children of civil partners is not acceptable. I do not accept the logic that it is necessary to create a difference and show there is a constitutional difference between the consequences of determining the succession rights of different categories of children; that is, the children of the surviving partner in a civil partnership and the children of a surviving partner in marriage.
I am tempted to read the submission from the Law Society which deals in some detail with section 117 of the Succession Act and the complications which have arisen but I will not do so. As the society indicated in its submission, as there has been so much litigation relating to succession under that section, the case law is now understood well enough for lawyers to give decent advice to people. The problem with this provision is there is no case law yet and it would be difficult for practitioners to give clear advice to people entering into civil partnerships in this regard.
I am minded to agree with Deputy Flanagan in that there is no point in spending an inordinate amount of time going around the same roundabout if the Minister has not moved. I expect a stronger justification for the Minister not moving in this regard.
To answer Deputies and Deputy Ó Snodaigh in particular, this seeks to protect children in order to allow them——
——to apply under section 117 on intestacy for provision if no provision has been made for them. It is balanced because it relates to only when the court is of the opinion that it would be unjust not to make the order. The court may, on application of one of the children of an intestate who dies leaving a civil partner and children, order that the provision be made for that child out of the intestate's estate only if the court is of the opinion that it would be unjust not to make the order after considering all the circumstances.
It is, in effect, to protect children in these circumstances that this action is being undertaken. It goes back to the point I made at the start of this discussion, on Committee Stage and Second Stage in that we must strike a balance between the constitutional requirements relating to the protection of marriage. It has been defined many times that marriage is between a man and a woman and this was confirmed in a recent Supreme Court case among other cases. That is the reason we must have these distinctions.
This is couched in such a way that the court must satisfy itself that it is making this order in circumstances only where it is just to make that order and not unjust. I strongly suggest that the amendments from the Deputies are trying to replicate what is already there with regard to spouses. With regard to the protection of children, which goes to the core of my proposed amendment, we must ensure children have additional rights in order to apply for provision that would not be made for them in an intestacy position.
I move amendment No. 22:
In page 48, lines 34 to 37, to delete all words from and including "of one" in line 34 down to and including "of" in line 37 and substitute the following:
"by or on behalf of a child of an intestate who dies leaving a civil partner and one or more children, order that provision be made for that child out of".
I move amendment No. 23:
In page 49, line 2, to delete "provision for that issue" and substitute "provision for that child".
I move amendment No. 24:
In page 49, line 5, to delete "requirements of that issue" and substitute "requirements of that child".
Amendments Nos. 25 and 26 are related while amendment No. 27 is an alternative to amendment No. 26. Therefore, amendments Nos. 25 to 27, inclusive, may be discussed together.
I move amendment No. 25:
In page 50, line 14, to delete "Subject to section 117(3A),".
The Minister may have given this matter consideration since we debated it on Committee Stage. The arguments and points in favour of the amendment remain the same. I wonder if the Minister has given further consideration to the matter and if he is prepared to accept any of the points put forward on Committee Stage.
Section 83 was examined in detail on Committee Stage. I indicated at that time that the section as formulated is essential to provide additional rights for the children of a civil partner who dies leaving a will in order to ensure in all cases that the constitutional protection of the marital family is vindicated. This provision is included following strong advice from the Attorney General.
To achieve a balance between the constitutional imperative to protect the marital family and the succession rights of a civil partner on testacy, section 83 ensures that where a child of a civil partner applies under section 117 of the Succession Act for provision from the deceased parent's estate, an order shall not affect the share of the surviving civil partner unless the court considers it would be unjust not to make the order taking account of all of the circumstances, including the testator's financial circumstances and his or her surviving partner. This is a high threshold for making an order which would reduce the surviving partner's share and provide significant protection to the surviving partner.
Amendments Nos. 25 and 26 to delete section 83 of the Bill would be highly significant and would have the effect of leaving the surviving partner's share in the estate of the deceased partner wholly unprotected if a child or children of the deceased were to make an application under section 117 of the Succession Act for the provision from the estate of their parent. The amendment does this by removing any restriction on the court's discretion to reallocate the share of the civil partner.
The effect of amendments Nos. 25 and 27 would leave the surviving civil partner's share in the estate of their deceased partner as strongly protected as that of a spouse if a child or children of the deceased were to make an application under section 177 of the Succession Act for provision from the estate of their parent. This would risk upsetting a fine constitutional balance. The provision in the Bill is carefully constructed to ensure that the rights of children, who may be the children of a marital family, are fully vindicated while affording a high level of protection to civil partners. Spouses are afforded a higher level of protection because of the constitutional protection for the institution of marriage. Following enactment of the Civil Partnership Bill 2010 and, as succession law stands, section 117 applications may be made in any case. Section 83 will not encourage or impede children in making section 117 applications but will allow the court to make an order in their favour to the surviving civil partner's detriment only if it is unjust not to make the order. I believe this achieves a fair balance of the competing rights.
In the provisions before us, the succession rights of a civil partner to another civil partner are less protected and vaguer than are those of a married couple in terms of testacy and intestacy. That is the conclusion one reaches. Obviously, this is by design. I believe that is unfortunate and will lead to difficulty in terms of providing, with absolute certainty or clarity, legal advice to people entering into civil partnerships, which is to be regretted.
I move amendment No. 28:
In page 54, between lines 4 and 5, to insert the following:
"(d) in section 67(1)(b) (substituted by section 22(1) of the Social Welfare (Miscellaneous Provisions) Act 2004) by substituting “civil status” for “marital status” wherever it appears,”.
This is a technical amendment to the principle of equal treatment provisions in the Pensions Act 1990, as amended. Section 97 of the Bill makes a number of changes to the equal treatment provisions of the Pension Act reflecting the introduction of civil partnership. This amendment addresses an omission where the change from marital to civil status was not carried out.
I move amendment No. 29:
In page 63, line 4, to delete "ofsection 127” and substitute “of section 128”.
This amendment corrects a cross reference error in the Bill. Section 115 sets out how property adjustment orders may be made. Subsection (2) specifies that a property adjustment order may restrict or exclude the application of section 127 to such an order. However, section 127 concerns retrospective periodical payment orders. The reference should of course have been to section 128 which governs variation of such orders.
Amendments Nos. 30 and 31 are related and may be discussed together.
I move amendment No. 30:
In page 70, line 40, to delete "of the net estate" and substitute "of the estate".
Both amendments clarify section 124 which deals with the applications for provision from the estate of a deceased civil partner. The reference to "net estate" is not necessary as any provision from the estate of the deceased civil partner is necessarily after the settlement of prior claims. Accordingly, amendment No. 30 removes the term "net".
Amendment No. 31 specifies that the section applies to a civil partner whose civil partnership has been dissolved. Given that the section is in the part of the Bill governing dissolution and ancillary orders that may be made on dissolution this is already implicit. However, it is not clearly stated and accordingly amendment No. 31 rectifies that omission.
I move amendment No. 31:
In page 72, between lines 3 and 4, to insert the following:
"(12) In this section, "civil partner" means a civil partner whose civil partnership has been dissolved.".
I move amendment No. 32:
In page 85, line 22, to delete "adults" and substitute "persons".
Section 169(1) of the Bill as circulated states: "For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship..." It has been pointed out to me that an adult is a person aged 18 years or over. Current law sets the age of consent at 17 years. The Minister will know that during the deliberations of the all-party committee in regard to the children's amendment the majority of the committee, including members of the Minister's party, recommended that the age of consent be set at 16 years. In any event, as the law now stands a 17 year old can engage in an intimate and committed relationship but would be excluded from being a cohabitant under the definition currently enshrined in section 169. I do not want to speculate on the reasons people under the age of 18 years are excluded. Perhaps this is because they are not permitted to marry under the age of 18 years unless they have special exemption. In any event, there is an anomaly here that would be better met by the formulation I am suggesting.
The effect of this amendment by replacing "adults" with "persons" is to allow children to be designated as cohabitants for the purpose of the Bill. There does not appear to be any sound reason for so doing. There is an unintended effect on the Bill as initiated. The domestic violence protections which currently apply to a couple living together as husband and wife would have been removed from persons under the age of 18 years. This has been remedied by deleting on Committee Stage the domestic violence provisions from the Bill and inserting them in the civil law (miscellaneous provisions) Bill which is due to be published shortly. I made this point on Committee Stage. The miscellaneous provisions Bill will provide that it will continue to be possible for an application for a domestic violence order to be made by a person living in a couple, where one of them is over the age of consent but under the age of majority.
I will mention the only remaining provisions in Part 15 which apply to cohabitants. Section 199 extends to cohabitants a provision of the Residential Tenancies Act 2004 so that a cohabitant may take over a lease of a residential property on the death of the other cohabitant. As a child does not have the legal capacity to contract, this provision could not, in any case, apply to a cohabitant under the age of 18. The other instance is under section 200, which extends to cohabitants a provision of the Civil Liability Act 1961 so that a cohabitant may seek damages in the event of the wrongful death of the other cohabitant. This measure is subject to the couple having cohabited for at least three years. Clearly, there are no circumstances in which a child should be encompassed by that provision if the relationship is "intimate and committed", as provided for in section 170(1). In these circumstances, the amendment has no effect.
The Deputy's objective in proposing this amendment may be to ensure that a couple living together since one of them was 17 will be covered by the redress provisions, if the relationship ends while that person is 22. The potentially onerous obligations — or, indeed, potential benefits — under the redress scheme should apply only to cohabitants as adults. This is because a key feature of section 198, in Part 15, is that cohabiting couples must also be able to contract out of the application to them of the redress scheme. A child cannot enter into such a contract. Therefore, cohabitation as a minor should not be included in the time period required to become a qualified cohabitant, as set out in section 169(5) of the Bill. This means that a couple who commenced cohabiting when one of them was under the age of 18 cannot be subject to those obligations until they have been cohabiting for at least five years and each of them has reached the age of 23, or, if there is a child of the relationship, that they have been cohabiting for at least two years and each of them has reached the minimum age of 20.
I do not think I will divide the House on this issue. When a Minister reads a prepared answer that was written before one made one's case, there is always a danger that it will address arguments one did not make, which can be very interesting. I do not think the definition, as it stands, will create difficulties that cannot be overcome. I will withdraw the amendment for that reason.
I move amendment No. 33:
In page 85, line 23, to delete "and committed".
This issue was the subject of considerable debate on Committee Stage. I do not intend to revisit the arguments that were made, other than to suggest there may be a difficulty with the definitions of "cohabitant" and "qualified cohabitant" in the Bill. Section 170(1) provides that "a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship". I suggest that "intimate" does not necessarily mean "sexual". Section 170 creates an implication that the relationship must, at some stage, have been sexual. I am concerned that the use of the word "committed" may cause difficulties and lead to protracted legal argument. I do not have a difficulty with the reference to adults living together as a couple in an "intimate" relationship. However, the requirement that the relationship must be both "intimate" and "committed" could be construed in a manner that is somewhat different from what is intended. Since the Committee Stage debate, the Minister has had an opportunity to assess the points that were made about this provision, which could give rise to a lack of clarity, uncertainty and considerable legal argument. While I will not press the matter, I suggest that this issue could well feature in protracted litigation and give rise to an element of uncertainty which is not intended in the legislation.
I submitted this amendment on foot of a submission I received from Women's Aid. I am sure all the other members of the Joint Committee on Justice, Equality, Defence and Women's Rights received the same document. As I said on Committee Stage, Women's Aid has argued that a woman might have difficulty proving before a court that a relationship was "committed", if that fact is contested by her cohabitee. The fear that has been raised is that the word "committed" might create a new barrier for a woman who seeks a protective order under the Domestic Violence Act 1996. It has been suggested that it may be used by an abuser to prevent such a woman's concerns from being addressed. The Minister gave detailed responses when we raised these matters on Committee Stage. There is a vagueness about the word "committed" that has the potential to cause problems. This issue relates to what used to be called a "conjugal" relationship.
Much of this debate has been muddied by people trying to equate all sorts of other relationships with what is being proposed here. The provisions of both aspects of this Bill — that dealing with cohabitation and that dealing with civil partnerships — relate to two people, of the same sex or of opposite sex, who are in a committed sexual relationship with each other. It is obvious that such people will not have to prove they are currently in a sexual relationship with each other, as long as they have had such a relationship with each other. That is at the heart of this legislation. We have listened to all sorts of extraneous references to various types of couplings or groupings. People have sought to equate relationships with maiden aunts and others with what is at issue here. That approach does an injustice to the objective set out by the Minister and by this House, which is at the heart of what this measure is intended to address. While I fully appreciate the Minister's intent in using the word "committed", I am concerned about how it can be proved that the relationship is a committed one. I do not suggest that it should not be a committed one. I am also worried that the use of the word "committed" could be an impediment to the protection of an individual who is in such a relationship, if that fact is subsequently contested by his or her partner.
I wish to speak about the whole idea of Part 15. We are talking about the availability of the redress scheme to cohabitants. Just in case anyone thinks we are talking about same-sex couples only, I assure the House that this relates not just to same-sex couples but also to heterosexual couples. It is a question of providing a safety net for couples, in terms of financial dependency, in case they split up.
It can be in terms of protection orders or anything else.
Absolutely. The normal designation in any legislation of this nature is the use of the term "living as husband and wife". That is the phrase we normally use. We have had to come up with a similar phrase in this case, obviously, as we cannot use the phrase "husband and wife" in the context of a provision that will apply to same-sex partners. We have come up with the term "intimate and committed" for these purposes. Given that former cohabitants can potentially face onerous court obligations under this redress scheme, it is right and proper that the situation would have to be one of commitment. The behaviour of either party at the time when the relationship was breaking up is not a factor for the court to consider in making its determination. Section 169(2) clearly indicates:
In determining whether or not 2 adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following:
(a) the duration of the relationship;
(b) the basis on which the couple live together;
(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
(e) whether there are one or more dependent children;
(f) whether one of the adults cares for and supports the children of the other; and
(g) the degree to which the adults present themselves to others as a couple.
The seven factors that are listed are not exclusive.
In order to give certainty regarding who complies with this provision, I suggest that the terminology "intimate and committed" is preferable to the one suggested by the Deputies, which is simply "an intimate relationship".
I move amendment No. 34:
In page 86, lines 7 to 12, to delete all words from and including "if — " in line 7 down to and including "Act." in line 12 and substitute the following:
"if sexual activity between them would be an offence having regard to their age or the fact that they are relatives.".
Subsection 169(4) states: "For the purposes of this section, 2 adults are within a prohibited degree of relationship if (a) they would be prohibited from marrying each other in the State.” One of the impediments covered by this section is if couples are in a prohibited degree of relationship. This section does not apply if a couple would be prohibited from marrying each other in the State. Of course, every same-sex couple is prohibited from marrying in the State, under the Constitution. Is it the Minister’s intention to exclude every same-sex couple from the provisions of this section?
There is a drafting problem here that needs to be addressed. Same-sex couples would be prohibited from marrying each other, as would anyone who was still married to a third party. Such a person would be excluded from marrying and, therefore, excluded from the definition of cohabitant in the Bill.
Is it the Minister's intention that opposite-sex couples would be covered by this section but that same-sex couples would not? Would the definition I put forward not better meet the impediment intended, as I understand it, that is, "if sexual activity between them would be an offence having regard to the age or the fact that they are relatives"? It is not that they are debarred from marrying but that they would be under age or there would be issues of consanguinity which would prevent their marriage in law. If that is not specified, the section will not apply to same-sex couples, who obviously cannot marry.
Paragraphs (a) and (b) of subsection (4) are alternatives. Subsection (4) clearly states that two adults are within a prohibited degree of relationship if (a) they would be prohibited from marrying each other in the State, or (b) they are in a relationship referred to in the 2004 Act.
This subsection confines the scope of the Bill to a couple living in an intimate and committed relationship where the couple is not within the prohibited degrees of relationship. The prohibited degrees of relationship as they apply in marriage are long established. The prohibited degrees of relationship for the purpose of the Civil Partnership Bill are set out in section 26. In each case the prohibited degrees of relationship are defined and specific so that persons within these degrees are excluded from cohabitants' provisions.
Deputy Howlin's amendment seeks to replace these clearly defined relationships by a reference to sexual activity which would be an offence having regard to the age of the persons. There is no question of a criminal offence arising out of sexual activity between two adults on the grounds of their age. The reference is, therefore, redundant.
Second, the amendment refers to sexual activity being an offence having regard to the fact that the couple are relatives. This is seriously flawed since the criminal law on incest, the Punishment of Incest Act 1908, defines incest as the carnal knowledge of a male with a female who, to his knowledge, is his granddaughter, daughter, sister or mother or a female aged 17 or over who consensually permits her grandfather, father, brother or son to have carnal knowledge of her, knowing the male is such a relative. This is far less extensive than the list of relatives prohibited from marrying each other on the grounds that they are consanguineous and, notably, does not include sexual relationships between those close relatives of the same sex. This, potentially, allows a large number of other people living together to qualify as cohabitants. This would not only erroneously increase the potential burden on the courts but would undermine the clear recognition by this House, and I am sure by Deputy Howlin, that the intimate and committed conjugal relationship of a couple is qualitatively different from even the closest caring relationship between friends and family.
The Minister has lost me. I am reading plain English here. Section 169 sets out what is a cohabitant. For the purposes of Part 15, which deals with cohabitation, a cohabitant is one of two adults, whether of the same or the opposite sex, who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.
Subsection 169(4) states that "for the purposes of this section, 2 adults are within a prohibited degree of relationship if they would be prohibited from marrying each other in the State". Clearly, same-sex couples are in a prohibited degree of relationship because they cannot marry. Is that not clear to the Minister?
Section 26 lists the prohibited degrees of relationship to which this refers. A person may not enter a civil partnership with someone within the prohibited degrees of relationship.
That refers to paragraph 169(4)(b). Paragraphs (a) and (b) are joined by the word “or” and not by the word “and”.
Section 26 clearly indicates what are the prohibited degrees of relationship. I honestly do not know what the Deputy is getting at.
Let me put it this way. Subsection 169(4) states that for the purposes of this section two adults are within a prohibited degree of relationship if either paragraph (a) or paragraph (b) applies to them. The Minister refers to the connection between paragraph (b) and the new section 26. I am concerned with paragraph (b). To be within the prohibited degree of relationship it is not necessary that paragraphs (a) and (b) both apply. It is only necessary that one of them apply. Clearly, every same-sex couple would be prohibited under paragraph (a). I do not want to hear about section 26. I am talking about paragraph 169(4)(a).
We may, perhaps, look at this before the Bill is debated in the Seanad. However, my advice is that under the Interpretation Act 2005, those who would be prohibited from marrying would not include same-sex couples, given the fact that we are debating civil partnership legislation and that the references in section 26 take care of the prohibited relationships.
That cannot be right. Paragraph (a) precludes same-sex couples from being defined as cohabitees. The notion that this is allowable as marriage is against the Minister’s argument that this cannot be marriage. My advices come from a law professor who has looked at this matter.
My advice is that this has been looked at by the Attorney General and the way in which it is looked at by the courts, under the Interpretation Act, will clearly indicate that two adults are within a proscribed degree of relationship if they are prohibited from marrying each other within the State.
It will indicate clearly that although the two adults who are within a proscribed degree of relationship are prohibited from marrying each other within the State, this does not apply to civil partners.
How can one know that two same sex people cannot marry? The Minister is stating in black and white they are in a prohibited degree of relationship, in other words they are prohibited from availing from this section on cohabitation if, first, they would be prohibited from marrying each other in the State. Clearly, it remains the case that same sex couples cannot marry in this State.
Minister, if we cannot make progress on this it may be necessary to go for recommital.
Perhaps I will take further advice in regard to this but I cannot see the point Deputy Howlin is trying to make. By putting in wording to the effect that sexual activity between them would be an offence having regard to their age or the fact that they are relatives would not in any way advance this.
It would. I understood that what the Minister intended by putting in paragraph (a) was the normal prohibition on marrying, which exists for good reasons. One cannot marry people who are closely related or those under a certain age. “Consanguinity, affinity or other relationships” comprised the marriage ban that used to be read out in church. These are the legal impediments normal to marriage. However, the Minister has used the bald phrase, “would be prohibited from marrying”, to capture all of that and in doing so he has also captured the constitutional prohibition we have in the interpretation of marriage by the Supreme Court as prohibiting the marriage of same sex couples.
Will the amendment be withdrawn?
The Minister should consider this for the other House and I shall withdraw the amendment.
I must be careful in regard to the timing of this. We may not be able to return the Bill to the Dáil. Perhaps we might recommit it before the evening is out.
It could be recommitted now. We would have to move a recommital for a committee-type debate.
This is a very big point if the interpretation I have is right.
It is intended that the Bill will go to the Seanad next week so it would be possible for us to look at it again there, with a view to bringing it back to the Dáil. We are to do Committee and Report Stages in the Seanad and it would be possible to return the Bill to the Dáil on Thursday.
In that event, will the Deputy withdraw the amendment?
I want to facilitate the Minister. We are not at all at odds.
Perhaps we shall leave it until the Bill goes to the Seanad.
I move amendment No. 35:
In page 86, to delete lines 21 to 29.
This concerns the definition of a qualified cohabitant under section 169. We propose that subsection (6) of section 169 be deleted because it is unnecessarily restrictive. I am concerned that the consequences will give rise to difficulty. It is interesting that this subsection was not included in the original heads of the Bill, published in 2007 and I wonder from where the Minister is coming.
We agree that a person cannot be a qualified cohabitant if one or both persons is, or was at any time during the relationship, married to another person when that relationship has ended, or if a party dies and had not lived apart from their spouse within the appropriate period. I gave an example on Committee Stage and was disappointed that the Minister's response was not in any way understanding or favourable. For the purpose of outlining the hardship involved and for the benefit of the House I shall repeat that example, briefly.
Let us take the example of a husband and wife who separate on 1 January 2010. On 1 March 2011, 15 months later, the husband meets a new partner. On 1 September 2011, the husband and new partner commence living together permanently. In February 2013, the husband and his new partner have a child. The couple decide the mother should give up work and look after the baby. In December 2013, the husband leaves his new partner. Although the woman is a qualified cohabitant because she has been living with her partner for two years and has had a child, nevertheless she is not a qualified cohabitant on the basis that the husband has not lived apart from his wife for the requisite period of four years.
There is a clear injustice there to the dependent cohabitant and her child. This injustice would not be perpetrated on the cohabitant and the child if subsection (6) was removed. There is an issue of equality involved which will give rise to a situation where in the event of one of the parties dying the legal person representative in a constitutional challenge will be embroiled in protracted court proceedings. In effect, we are treating two cohabitants in different ways, depending solely on the marital status of one cohabitant, which is a problem. We adverted to it on Committee Stage and I had hoped the Minister would have given the matter some consideration since then.
There is another example, the case of a cohabitant who was living with a cohabitant, now deceased, who had a valid foreign divorce. That cohabitant would be denied qualified cohabitant status if the divorce, though legally valid, was too recent to allow the deceased cohabitant to be in compliance with the time limit under Article 41.3 of the Constitution. This would arise in a situation where two Irish people marry and divorce in England. They process the divorce within a few months of separating but prior to the divorce being finalised the deceased cohabitant moves home to Ireland to live, has a child with the cohabitant and dies three years afterwards. That cohabitant is denied the qualified cohabitant status which again would not be perpetrated in the form of an injustice on the person if subsection (6) were removed.
Again, I ask the Minister why subsection (6) was introduced in this restrictive manner, having regard to the fact that it was not part of the original heads of the Bill that were published in 2007.
I agree with the rationale put forward by Deputy Flanagan on this matter. We are discussing the partial exclusion of people from availing of the provisions of cohabitation based on marriage. In its consultation paper, the Law Reform Commission originally proposed to exclude all cohabiting relationships where one or both cohabitants is married to a third party. I understood the reasoning behind the commission's view was that if the State, by its laws, were to recognise and improve the position of a cohabitee who is already married to somebody else those laws would undermine the constitutional institute of marriage. That was the reasoning the Minister gave on Committee Stage.
The Law Reform Commission changed its view because it was criticised. In its report it changed its attitude and accepted it would not be appropriate to exclude married cohabitants. Although the Minister does not include a general exclusion in this subsection he has made a partial exclusion. The effect of the subsection is to remove from the definition of qualified cohabitant someone who lives with a person who may be long separated but not formally divorced from a former partner.
They could be separated for four years, although not formally divorced. After four years, the Bill as proposed would be prepared to include such couples. It is my view that this will create unfairness and discrimination.
There is also a contradiction between subsections 4(a) and subsection 5, because subsection 5 implies that at least some married persons could be cohabitants, whereas subsection 4(a), taken in conjunction with subsection (1), implies that no married persons are cohabitants. My advice is that this constitutes an arbitrary and an unnecessarily complex set of exclusions. I hope the Minister reflects upon that.
I said on Committee Stage that this was carefully drafted in order to ensure the constitutional protection for marriage was fully vindicated. Subsection (6) was drafted to ensure that the spouse is not disadvantaged in seeking various ancillary orders on separation or divorce, if the other spouse becomes a qualified cohabitant of the third party who seeks redress under the Bill. The provision ensures that the cohabiting spouse cannot become a qualified cohabitant until the spouses have been living apart for at least four out of the previous five years. It was examined again by the Attorney General during the publication of the heads of the Bill and during the drafting in order to ensure that there was additional protection for spouses, given the constitutional imperative of the protection of marriage.
Deputy Flanagan raised the issue of a couple who cohabit, have a child together but who separate before they have been cohabiting for two years. In such a case, maintenance is payable in respect of a child under the Family Law (Maintenance of Spouses and Children) Act 1976, as amended. However, no maintenance is payable by either cohabitant to the other, as they will not have become qualified cohabitants. It is one of these issues where there is a distinction in order to vindicate the rights of the spouse and to coincide with the constitutional protection of marriage. The time period we are envisaging for this is similar to that which pertains to the qualifying period for divorce. This is the type of compromise that must be reached in order to ensure that this Bill is constitutionally sound. That is the advice I have received from the Attorney General.
What is the Deputies' position?
We are not going to win, so we might as well withdraw.
I do have a difficulty with it.
I also have extensive advice that this will prove to be adifficulty.
I move amendment No. 36:
In page 86, between lines 29 and 30, to insert the following:
"170.—It shall be the objective of the court in exercising powers under this Part, insofar as possible, to make such orders as will finally determine the financial arrangements between the parties and avoid further proceedings between them.".
This is an important addition. We had problems with divorce legislation because the balance of support for the entire concept of divorce at the time was so close. We did not have finality on the issue and it has caused some difficulties where, even after a long separation, there is a possibility of people coming back again to revisit things. I am suggesting here that we would state, as a matter of duty on the court, that in making orders and in exercising its powers under this part, in so far as it is possible, financial arrangements between the parties are final, so that there are no further legal proceedings years later.
The particular form or words I am putting forward in this amendment is based on legislation from New South Wales. There are strong and compelling reasons, in so far as the Constitution and natural justice allow, for a clean break approach to be made in financial matters in the context of cohabitation. This is spelled out in other jurisdictions, such as New South Wales. The amendment is a direction that we would give to the courts so that the intention of the Oireachtas is seen to be a clean break decision that would not be an incremental re-visitation of the financial arrangements over time.
I cannot accept this. The courts always have a view that if they can bring finality to arrangements, they will do so. However, there are always cases involving couples where there will be a change of circumstance as time moves on. The court must have the ability to change if new circumstances prevail between the couples. The portent of what the Deputy is proposing would be mandatory. He accepts that it is not possible to do this in every case and that he is trying to avoid further proceedings. We would wish that such would be the case, but the way the amendment is drafted is to ensure that there is an emphasis on dealing with it once and for all. Anybody who has practised family law knows that from time to time, circumstances change and one person has to come back into court and make an application because of that change of circumstances. The Deputy's amendment could cause difficulty in that respect.
Will the Deputy withdraw the amendment?
I would like it to be accepted because many people who have dealt with litigation in divorce proceedings would like us to revisit that and end matters. It is very difficult for people who are in a relationship and when the relationship ends, there are matters to be settled. The notion that in five, six or ten years' time, when people have gone on to live another life, somebody will haul them back for a resettlement, is unjust in and of itself. While we cannot legislate for it to be the final instalment, we can indicate, from statutes in jurisdictions similar to our own, the will of the Oireachtas to the courts that it is an objective, in so far as possible, that there be finality in respect of these orders. I am sorry the Minister is not willing to accept that.
With the best will in the world, I can understand what the Deputy is trying to get at. Section 170(6) states that the court, may, on the application of the qualified cohabitant or the other cohabitant, if it considers it proper to do so, make varying orders. The Deputy's suggestion may well discourage one party from taking an application to vary or suspend. Couples circumstances do change.
The responsibility of the cohabitee surely ends somewhere.
Again, each circumstance will be determined by the court. It is possible that financial circumstances change and that one party is paying maintenance to the other, and there is no necessity for it anymore. Although it is not absolutely mandatory, the Deputy is trying to bring finality once and for all and, with all due respect, I do not think he can do that.
That is not what I intended with this amendment, but I will not labour the point.
It is an aspiration. We are dealing with a statute and we must be clear on it.
We often put the intention of the House into statute. For example, on the simple matter of mandatory sentencing on which the Minister has argued, we do not ever put absolute mandatory sentencing into statute law except in regard to murder. There is always an opt-out clause for the court to make a different determination. Even when we say this is the mandatory sentence, we give flexibility to the courts, because of the separation of powers, to make a different interpretation in the context of the case before them. This is not in any way unique. I will withdraw the amendment.
It is not the same point.
I move amendment No. 37:
In page 100, line 29, to delete "6 months" and substitute "12 months".
This is a straightforward and simple administrative matter on which I will not dwell to any great extent, other than to ask the Minister to facilitate the introduction of an element of conformity. A spouse has 12 months from the grant of representation to assert his or her rights but a cohabitant has only six months to do so. A challenge by a cohabitant to an estate could be under way without the cohabitant knowing the position in regard to the spouse. That would place a legal personal representative in a difficult position.
The amendment merely makes 12 months the standard. It introduces an element of clarity. Why do different time limits apply for different classes of relationship? This is an administrative matter and I will not divide the House on it, but there is an issue in this respect.
It is not the standard because the standard in regard to a divorced spouse is that he or she has to apply within six months of a grant of representation, either under section 18(1) of the Family Law (Divorce) Act or under section 25(1) of the Family Law Act 1995; where a divorce is granted outside this State, a spouse who is separated or whose succession rights were quashed under grant of a decree, a judicial separation must also apply for provision within six months of that grant of representation. There is a six months time limit available to a former civil partner under section 124(1) of this Bill. Introducing a 12 month-period would introduce an inconsistency, even within the Bill, quite apart from an inconsistency in regard to the time period relating to family law generally in terms of reliefs that are laid down in other legislation.
I move amendment No. 38:
In page 102, between lines 21 and 22, to insert the following:
"193.—(1) Subject to the other provisions of this section, the Circuit Court has concurrent jurisdiction with the High Court to hear and determine applications for orders for redress referred to insection 170 and orders for provision from the estates of deceased cohabitants under section 191.
(2) The District Court, and the Circuit Court on appeal from the District Court, have concurrent jurisdiction with the High Court to hear and determine applications for orders for redress referred to insection 170 and orders for provision from the estates of deceased cohabitants under section 191, except that—
(a) they do not have jurisdiction to make such an order for periodical payments at a rate greater than €500 per week,
(b) they do not have jurisdiction to make such an order in a matter in relation to which the High Court has made such an order, and
(c) the District Court does not have jurisdiction to make such an order in a matter in relation to which the Circuit Court has made such an order otherwise than on appeal from the District Court.
(3) The court shall only exercise its jurisdiction to hear and determine an application for an order for redress referred to insection 170 if both of the cohabitants concerned were ordinarily resident in the State throughout the one-year period prior to the end of their relationship, and either of the cohabitants—
(a) is domiciled in the State on the date on which the application is made, or
(b) is ordinarily resident in the State throughout the one-year period that ends on that date.
(4) The court shall only exercise its jurisdiction to hear and determine an application for an order for provision from the estate of a deceased cohabitant undersection 191 if—
(a) in the case where the relationship concerned ended before the death of the deceased, each of the cohabitants concerned was ordinarily resident in the State throughout the one-year period prior to the end of their relationship and—
(i) each of the cohabitants concerned was ordinarily resident in the State throughout the one-year period that ended on the date of the death of the deceased,
(ii) on the date of the death of the deceased, the applicant was in receipt of periodical payments from the deceased, whether under an order made undersection 172 or pursuant to a cohabitants’ agreement or otherwise,
(iii) the applicant had, not later than 2 years after that relationship ended, made an application for an order undersection 171, 172 or 184 and either—
(I) the proceedings were pending at the time of the death, or
(II) any such order made by the court had not yet been executed,
(iv) the applicant had, not later than 2 years after the relationship ended, made an application for an order undersection 171, 172 or 184, the order was made, an application under section 170(6) was subsequently made in respect of that order and either—
(I) the proceedings were pending at the time of the death, or
(II) any such order made by the court undersection 170(6) in favour of the applicant had not yet been executed,
(b) in any other case, each of the cohabitants concerned was ordinarily resident in the State throughout the one-year period that ended on the date of the death of the deceased.
(5) The jurisdiction conferred on the Circuit Court may be exercised by the judge of the circuit in which a party to the application ordinarily resides or carries on a business, profession or occupation.
(6) The Circuit Court shall transfer, to the High Court, proceedings on applications for orders for redress referred to insection 170, on application to it by a party to the application for the order concerned, if land to which the proceedings relate—
(a) has a rateable valuation that exceeds €254, or
(b) has not been given a rateable valuation or is the subject with other land of a rateable valuation, if the Circuit Court determines that the rateable valuation would exceed €254.
(7) An order made or act done in the course of the proceedings before a transfer undersubsection (6) is valid unless discharged or varied by the High Court.”.
This amendment inserts a new section 193 into the Bill. Its purpose is to rectify the omission from the Bill, as initiated, of detailed jurisdictional rules relating to proceedings under Part 15. The jurisdiction rules are similar to those in section 137 for civil partnership proceedings. It varies in a number of details which I will briefly set out.
Subsections (1) and (2) are standard.
Subsection (3) differs in that the jurisdiction conferred on the court is dependent not only on the domicile or ordinary residence of a party to proceedings on the date the proceedings are initiated, but on the couple having been ordinarily resident in the State for at least the year before the relationship ended. This is to ensure that not only does a party to the proceedings have a close connection with the State, but the relationship itself has a close relationship with the State. It may be easiest to understand if I give an example: a couple — their nationality is irrelevant — meet and live together in an intimate and committed relationship for an extended period in, say, Germany. Immediately on the end of the relationship one of them moves to Ireland and lives here for a year. If we do not confine the jurisdiction of the court, the person who has moved to Ireland could, in theory, make an application for redress against the other person. This is although the relationship itself never had any connection with Ireland, neither of the parties has any past connection with the State, and the other person may never have lived here.
Subsection (3) insures against this by providing that the couple themselves must have been ordinarily resident in the State in the year prior to the ending of the relationship, as well as requiring that at least one of them have an ongoing connection with the State, either by their domicile or ordinary residence.
Subsection (4), which deals with applications for provision from the estate of a deceased cohabitant, is complex because full account is taken of the many situations in which such provision may be sought. In the case of cohabitants who are still in a relationship on the date of the death, the couple are required to have been ordinarily resident in the State in the year prior to the death, establishing the connection of the relationship with the State.
Where the relationship ended prior to the death, the couple are required to have been ordinarily resident in the State in the year prior to the end of the relationship, establishing the connection of the relationship with the State. The following requirements also apply: both of the couple should be ordinarily resident in the State for the year prior to the death; or the applicant was, on the date of the death, in receipt of periodical payments from the deceased; or the applicant had applied for an order for redress or a variation of such an order, which had not yet been heard; or the applicant had applied for an order for redress or a variation of such an order, and an order had been made but had not been executed on the date of death.
This is a complex set of provisions, but it ensures that a person can apply for redress only if both the relationship and the person have an ongoing connection with the State. It further safeguards the cohabitant who was dependent on the deceased by ensuring that where the court had previously had jurisdiction in the case under subsection (3), the person remains entitled to apply for provision from the estate of the deceased.
Subsections (5) to (7) are standard. Other jurisdictional provisions relating to civil partnership proceedings are not mirrored as they deal with jurisdiction in the case of actions under Part 4 of the Bill dealing with shared home protection. As protections similar to those under Part 4 are not extended to cohabitants or qualified cohabitants, there is no requirement to add the relevant jurisdictional rules.
I welcome this amendment introduced by the Minister. It confers a certain jurisdiction, particularly the jurisdiction conferred in the Circuit Court, which I welcome. It is important and it is regrettable that it was not included in an earlier stage in the Bill. I thank the Minister for its introduction.
I welcome the amendment. It brings clarity to the process, which is important.
I move amendment No. 39:
In page 104, to delete lines 1 to 5 and substitute the following:
"200.—The definition of "dependant" in section 47(1) (as substituted by section 1 of the Civil Liability (Amendment) Act 1996) of the Civil Liability Act 1961 is amended by substituting the following for paragraph (c):
"(c) a person who was not married to or a civil partner of the deceased but who, until the date of the deceased’s death, had been living with the deceased as the deceased’s cohabitant within the meaning of section 169 of the Civil Partnership Act 2010 for a continuous period of not less than three years,”.”.
Section 200 amends section 47(1) of the Civil Liability Act 1961 so that a cohabitant who meets certain criteria is a defendant for the purposes of wrongful death actions. Under the Civil Liability Act 1961, as amended, a person living with someone as husband and wife may sue in the event of that person's wrongful death.
This section implements the Law Reform Commission's recommendation that a cohabitant should be able to sue for damages irrespective of the sexual orientation of the couple concerned so that same sex cohabitants have the same rights as opposite sex cohabitants.
Amendment No. 39 is a technical amendment to delete an extra word "as", however, the Minister has decided also to replace the full section, to remove any potential that it might be interpreted as applying only to opposite sex couples, whereas the intention is to provide that a cohabitant should be able to sue for damages for wrongful death, irrespective of the sexual orientation of the couple concerned.
I move amendment No. 40:
In page 117, after line 60, to insert the following:
Registration of Deeds and Title Act 2006
Definition of “deed” in section 32(1)
(a) insert “or undersection 36 of the Civil Partnership Act 2010” after “Act 1976” in paragraph (j);
(b) insert “or undersection 28(12) of the Civil Partnership Act 2010” after “Act 1976” in paragraph (k).