The options paper on domestic partnership prepared by a working group chaired by Ms Anne Colley was published in November 2006. The paper focused on three distinct types of cohabiting relationships: opposite-sex couples, same-sex couples and non-conjugal relationships. The paper examined a range of options to accord legal recognition and effect to each of these types of cohabiting relationships.
The working group reported that there were very few responses to its submissions on non-conjugal relationships and, together with the absence of research material, it found it difficult to analyse properly the options or consequences of according legal recognition to this category. The Law Reform Commission, in its consultations on cohabitants and the law, also received very few responses from the non-conjugal couples.
There has been little quantitative sociological study of the phenomenon of cohabitation in Ireland. While the working group found some research, this mostly related to experience outside the State, with some recent but not comprehensive or long-term research emerging on the situation in Ireland. This was the context in which the group concluded that, rather than proposing options for such a non-homogeneous category, a comprehensive study of cohabitation in Ireland should be commissioned with a view to establishing who cohabiters are as well as their reasons for cohabiting, and informing a review of the relevant legislation to identify where reforms may be required. As Senator Corrigan is aware, the Government in its agreed programme undertook to legislate for civil partnerships. To this end, the Minister for Justice, Equality and Law Reform published the general scheme of the civil partnerships Bill in June 2008. I understand the Minister expects to publish the Bill within the next few days.
The main proposals in the general scheme are for same-sex couples, a scheme of civil partnership registration together with a range of rights and duties consequent on registration; for long-term opposite-sex and same-sex couples, access to a cohabitants' redress scheme giving protection to a financially vulnerable person at the end of a relationship; and, again for opposite-sex and same-sex couples, recognition of cohabitant agreements enabling cohabitants to regulate their joint financial affairs and to opt out of the redress scheme.
The scheme makes no provision for non-conjugal couples such as siblings. It would not be appropriate to apply the civil partnership registration scheme to this category. The issues for sibling or other non-intimate couples are not the same as those facing same-sex couples. The former are neither expected nor required to assume the level of responsibility for each other that same-sex couples registering in a civil partnership will do, and it would be an unwarranted interference in their individual freedoms to require them to do so. Both the Law Reform Commission and the Colley group on domestic partnership concluded that "non-conjugal" relationships comprising diverse familial, caring, platonic and house-sharing cohabitants do not form a homogenous group for which a statutory response is possible. The UK Law Commission came to a similar conclusion about property rights in shared homes.
As matters stand, non-conjugal cohabitants may regulate their financial and property affairs by contract and the tax code already makes provision for capital acquisitions tax relief on shared private residences. Contractual arrangements may be freely made by those in non-conjugal relationships to regulate many aspects of their interdependency including joint ownership of property, joint tenancy, succession and power of attorney. Regarding a person's residence, the tax code provides for acquisitions tax relief for non-marital and other cohabitants with respect to the gift of inheritance of a shared home.
The civil partnership registration scheme and the cohabitants' redress scheme proposed would impose sets of rights and obligations on long-term cohabitants, including on maintenance, pensions and property. It would not be appropriate to extend these obligations to non-conjugal couples. Giving the courts power to make orders on maintenance, pensions and property would constitute an unwarranted intrusion into normal social and familial relationships. It would be inappropriate to require siblings, family members or house sharers to pay maintenance to each other simply because the relationship or friendship had broken down.
The courts' powers to make orders restricting or mandating the sale of property would be an undue interference with constitutional property rights. There is also very little evidence of demand for such arrangements for non-conjugal couples. Both the Law Reform Commission and the Colley group carried out extensive consultations in preparing their reports and, notably, both reported they received very few responses about non-conjugal couples.
Difficulties can arise where siblings or friends, having lived together, are in dispute about their respective interests in a home or other property. However, the courts already have a broad jurisdiction to make determinations on questions of ownership where it is just and equitable to do so. It may be of more importance to affirm that when specific issues arise for persons in close relationships they will be addressed, as in the case of relief of acquisitions taxation, as I mentioned earlier, and will be dealt with by the Government as may be appropriate. The area in general of siblings and friends, however, will continue to be reviewed with a view to determining the need for any legislative or administrative actions by the relevant Departments.