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Seanad Éireann debate -
Thursday, 25 Jun 2009

Vol. 196 No. 6

Family Support Services.

I thank the Cathaoirleach for giving me the opportunity to raise this issue, and I thank the Minister of State for attending in the Chamber. I raise the issue with specific regard to the situation of family members and siblings in particular who spend most of their adult lives together in the same home and the concerns they have for their future. There have been considerable increases in the prices of property in recent years and a number of people have contacted me to inquire what might happen as they approach old age in the event of a sister or brother dying and how it might be possible to retain the family home. Concern has also been expressed about a sibling becoming unwell where a brother or sister would like to be in a position to take care of him or her and receive support for that.

I note that a recommendation was made in the Colley report that a study should be conducted to establish the nature and extent of such situations throughout Ireland and perhaps consider the issues that have arisen. I am not sure whether it is necessary to undertake such a study or if, perhaps, some other mechanism might be employed, but I know there are significant numbers of such families living together throughout Ireland whose members are concerned about the future and their legal entitlements in terms of supports that might be available to them from the State. I would appreciate it if some indication could be given as to when such a study might be undertaken or, alternatively, whether it might be possible for another mechanism to be devised to assess the situation and consider whether any changes to the legislation are needed. Given the proposed civil partnership Bill, I believe some people have been prompted to make contact to see whether their situations might be examined in the light of that legislation with a view to addressing some of the challenges and difficulties they face.

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.

I thank the Minister of State for a very comprehensive reply. I can appreciate the issues the Minister of State has raised and the points addressed, particularly the dilemma posed whereby, despite the call for submissions, a very small number of submissions were received from people in non-conjugal relationships. I can understand that this posed a difficulty for the group in considering its report. Perhaps there was not as much of an awareness, and perhaps the proposed civil partnership Bill has brought about a greater awareness among people. Some of the issues that have arisen for people in such living circumstances have started to occur only in the last number of years with the change in property prices.

I welcome in particular the final paragraph of the Minister of State's response where he said it will be possible and it is important that the specific issues that arise for these people will be addressed and that it will be dealt with by the Government as appropriate. I welcome the commitment that was given that in the general area of siblings and friends, this will continue to be reviewed with a view to determining the need for any legislative or administrative actions by the relevant Departments. Should it be decided to take any action as a result of these reviews, might it be possible to be informed of that action? Can I take it that the study recommended will not go ahead?

I thank the Senator for her very considered and reflective contribution to this debate and I will take on board what she has said about being kept informed. I will also check her other query and come back to her on that.