The Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009 is among the most progressive legislation to come to this House in its long history. It enjoys the support of all parties — although there are individuals who have issues in respect of it — which is significant in that it shows that the measures it contains have the broad support of the people. The level of support for the Bill also shows that securing the civil rights of gay people is a mainstream goal and that the ignorance and homophobia which gay people and their families — fathers, mothers, brothers, sisters — lived with in the past has no place in modern Ireland. I am deeply proud of this legislation. Members of the Houses and those of all political parties can also be proud of it. The Bill bears the support and the input of all. I hope it will be claimed by all.
From the perspective of my party, our 2007 election manifesto contained a clear commitment to the effect that:
Based on our republican ethos and building on the agenda for equality to which we are committed, we will address the need to provide a legal framework that supports the rights of same sex couples, including by extending State recognition of civil partnership between such persons so that they can live in a supportive and secure legal environment.
There is a perception that the Bill belongs to one party, which is not correct. I am of the view that it belongs to all parties. As stated, my party made a commitment in respect of this matter prior to the most recent general election. The Green Party also made such a commitment. I am not sure whether the Labour Party, Fine Gael or Sinn Féin did so.
During the negotiations on An Agreed Programme for Government in 2007, Fianna Fáil, the Green Party and the Progressive Democrats made a commitment to legislate for civil partnerships at the earliest possible date in the lifetime of this Administration. In government, the Fianna Fáil Party has a long record in bringing forward legislation which has afforded protection to the gay community. I refer here to the Prohibition of Incitement to Racial Religious or National Hatred Act in 1989, legislation to decriminalise the male homosexual act in 1993 and the various equality acts dealing with employment and equal status which were passed in 1998, 2000 and 2004. All of the equal status legislation enacted since the foundation of the State, especially in the period since 1997, has been passed by Fianna Fáil-led Governments.
We have, in advance of many other states, put in place an effective equality infrastructure to ensure people can have redress if they are unfairly discriminated against, whether in employment, or in the provision of goods and services. We have made it clear in our legislation that discrimination against individuals on the grounds of their sexual orientation will be neither condoned nor tolerated. Equality continues to be incorporated in the mainstream of policy making and the planning of service provision at both national and local level, in both the public and the private sectors. In conjunction with these many initiatives, which deal largely with individual rights, the Government is fully committed to addressing the relationship rights of gay and lesbian couples.
We all deserve equal treatment before the law and as we go about our daily lives. The Government is committed to playing a full part in ensuring gays and lesbians can participate fully in society without exclusion or discrimination. This Bill, by providing an important supportive legal framework for gay and lesbian couples, demonstrates our commitment to full equality. The Bill creates for the first time in Irish law a scheme under which gay couples can formally and publicly declare their allegiance to one another, register their partnerships and commit themselves to a range of duties and responsibilities. At the same time, they will be subject under new law to a series of protections in the course of their partnerships in the event of a failure of either party to maintain the other and in the event of disputes between them as to ownership of property. They will have additional protections in their homes, and new rights to succeed to the property of one another are also being established.
In the event of a dissolution of a partnership, there will also be considerable protections in place for a dependent partner, where necessary, by way of power to the court to order maintenance, to order financial relief by way of lump sum payment, to redistribute the ownership of property between them and to provide for transfer of rights between them under any pension scheme of which either is a member. Where a person dies after dissolution of a civil partnership, the court may order provision from the estate of the deceased for his or her surviving former partner. These are very specific measures that are being provided in law for the first time. Until a few short years ago, such measures did not exist in any jurisdiction.
The Bill breaks new ground. For the first time, the State will, in its laws, recognise and support the relationships of gay and lesbian couples who enter civil partnerships. Our laws will explicitly validate and protect the relationships of thousands of couples whose mutual commitment has until now been invisible in the eyes of the State. In conjunction with dealing with many vital and pressing legal difficulties experienced by gay and lesbian couples, the Bill will also try to address practical everyday matters. It will ensure they will always be entitled to visit if their partner is hospitalised, that they can be treated as next of kin and that they will be in a position to notify the death of a partner and arrange his or her funeral.
Gay and lesbian couples routinely face problems most of us are never obliged to contemplate. These can range from an inability to access State benefits, such as carer's allowance when caring for seriously ill partners, to a man's additional grief that his partner is recorded on his death certificate as being single, constituting an official denial of their lives together. These are the real experiences of gay Irish couples and other couples will be exposed to them if we do not reform the law. Enactment of the Bill will mean that the relationships of gay couples will no longer be ignored. They will have the protection and recognition of the State in its laws.
Senators will know that this Bill had to be carefully prepared and that the provisions of the Constitution had to be borne in mind during its drafting. Were the Bill to go beyond what is allowed under the Constitution, it would fundamentally undermine the balance that it attempts to achieve. In this complex exercise of trying to achieve balance, I am grateful to the Attorney General and his staff for their efforts in respect of the Bill and for the advice they provided.
To comply with the constitutional imperative to protect the family, it is necessary to differentiate the recognition being accorded to same-sex couples who register their partnerships with the special recognition that is accorded under the Constitution to persons of the opposite sex who marry. While there is a need to respect the entitlement to equality that same-sex partners enjoy under Article 40.1 of the Constitution, there is also a need to respect the special protection which Article 41 gives to marriage. The Bill has been carefully framed to balance any potential conflict between these two rights.
In formulating the civil registration scheme for same-sex partners the Government was mindful of the implications for children. On the advice of the Attorney General, it concluded that it was not appropriate that the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill should develop principles on children that would have much wider implications than those on same-sex partners. Apart from constitutional difficulties, issues which arise with regard to children and their welfare are so significant that it would not be appropriate to address them on a piecemeal basis without a thorough review of all of the implications such changes might have for children and also for those who might be affected by such changes.
Given the complexity of legal relationships between children and their parents, a comprehensive review of the law in this area is under way by the Law Reform Commission. It will in due course help to inform policy decisions on rights in general with regard to children of non-married parents and others. The commission published a consultation paper on the legal aspects of family relationships in September 2009 and has invited submissions from interested parties on its provisional recommendations which were published some time back. Its final report and recommendations are expected later this year. However, the consultation paper did not make specific recommendations on the position of same-sex couples or civil partners. It is not intended that the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill should deal with what is obviously a very complex issue, one with which other jurisdictions have had difficulties, with or without the constitutional constraints that clearly apply in this respect in our jurisdiction.
Alongside civil partnership, the second essential component of the Bill, the cohabitants provisions, gives recognition to the fact that the legal system needs to offer protection to vulnerable persons in long-term same-sex or opposite-sex relationships when that relationship ends. Many cohabiting couples do not realise that they have few responsibilities to each other under existing law and that they have little protection when things go wrong, whether on the break-up of a long relationship or the sudden and unexpected death of a partner. Many couples are under the misapprehension that the longevity of a relationship is sufficient to provide them with certain rights and protections in all sorts of areas, from common ownership of property to next of kin or inheritance rights. However, there is no entitlement under existing law to financial support and property rights do not accrue to a cohabiting partner, unless he or she is making express financial contributions.
The cohabitants redress scheme provided for in the Bill is largely as recommended by the Law Reform Commission. It will provide protection in law for long-term cohabiting couples by establishing a safety net for a financially dependent cohabitant at the end of the relationship. On break-up, a financially dependent cohabitant may apply to the court for maintenance from the other cohabitant, or possibly for a pension adjustment order or a property adjustment order. If the relationship ends on death, a dependent cohabitant may apply to the court for provision from the estate of the deceased if, as often happens, no provision is made for the surviving cohabitant. The courts will have substantial discretion in considering such applications.
The Bill recognises the right of couples to freely choose the legal form their personal relationships should take and the legal consequences of this choice. Some couples may prefer to opt-out of the redress scheme and the Bill makes provision for this. At the same time, it is important to find a balance between interfering in personal autonomy and protecting vulnerable persons. The Bill strikes that balance by providing that the courts, in exceptional circumstances, can vary or set aside a cohabitants' agreement where its enforcement would cause serious injustice.
I will turn now to the details of the Bill as passed by Dáil Éireann. The largest part of the Bill deals with the civil relationship of gay couples. Part 2 confers power on the courts to make declarations on the status of a civil partnership where the status may be in doubt. It also empowers the Minister for Justice and Law Reform to prescribe certain categories of relationship contracted in other jurisdictions as entitled to be treated as equivalent to civil partnership under Irish law.
Part 3 makes extensive amendments to the Civil Registration Act 2004 to provide for the registration of civil partnerships. Section 16 inserts a new part in the Civil Registration Act 2004 dealing with the detailed arrangements for civil partnership registration, including notice requirements, information requirements, declarations to be made, venues and effect of civil partnership. Three months' notice of an intended registration is required unless, for example, one of the parties is very ill, in which case an exemption may be provided. Registration will take place at the office of a registrar or another venue approved by the HSE and a registration ceremony may be conducted if the couple so choose. The minimum age requirement is 18 years. Section 16 was amended in the Dáil to specify that civil partners must make the required declarations orally. This is to ensure the registrar is satisfied that the parties understand the nature of the commitment they are making.
Part 4 provides protection for the shared home of registered civil partners. It is analogous to the Family Home Protection Act 1976 and prevents the sale of the shared home by one civil partner without the consent of the other. Part 4 was amended in the Dáil to allow civil partners to establish a joint tenancy in a home owned by one or both of them, other than under a joint tenancy, without being liable for the court fees or registration fees which apply to such changes. The next finance Bill will provide that such a transfer is exempt from stamp duty on the transaction.
Part 5 allows a civil partner to apply to the court for maintenance from the other partner during the course of the relationship where the other civil partner has failed to maintain the applicant civil partner. Part 5 was amended in the Dáil to allow the court make a secured periodical payments order or a lump sum order to ensure the maintenance is paid. Part 6 allows the court to make an attachment of earnings order if it considers it desirable to secure payment under a maintenance order, an interim order, a variation order or a maintenance pending suit order.
Part 7 makes a number of provisions related to Parts 5 and 6, including specifying that payments under maintenance orders are made without deduction of income tax; makes such orders enforceable; provides that certain property is joint property; and makes unenforceable any provision in agreements which precludes the payment of maintenance by either civil partner to the other.
Part 8 provides for succession. On testacy, civil partners will have the same entitlements as spouses to a legal right share under the innovative Succession Act 1965. Therefore, where there is a will, the entitlement is to one half of the estate if the deceased has a civil partner and no children, and to one third of the estate if the deceased has a civil partner and children. A child of the deceased may apply, as may a child of a heterosexual couple, under section 117 of the Succession Act 1965 for provision from the estate if the deceased has failed to make proper provision during his or her lifetime. Unlike the existing provision in law for spouses, an order made in favour of a child may reduce the share of the estate available for a civil partner.
Where there is no will — in an intestacy — the rules of distribution will operate in the same way for civil partners as they do for spouses. If the deceased dies leaving a civil partner and no children, the civil partner inherits the entire estate; if the deceased dies leaving a civil partner and children, the civil partner inherits two thirds of the estate and the remainder is divided between the children. These rules are modified to provide greater rights for a child of an intestate civil partner. Where a civil partner dies intestate, a child of that civil partner may apply to the court for a greater share of the estate. If satisfied that it would be unjust not to make such an order, the court may order that a share be provided for that child not exceeding the share to which the child would be entitled if the parent had died with no spouse and no civil partner. Such an order may not reduce the amount to which any other issue of the deceased is entitled and the net effect would be to reduce the share of the surviving civil partner.
Part 9 extends to civil partners the same protections spouses enjoy under the Domestic Violence Act 1996. Part 10 provides for a wide range of miscellaneous but nevertheless important legal consequences of registration, including in ethics and conflicts of interest. A civil partner will be treated as a "connected person" or "connected relative" in determining matters concerning ethics and conflicts of interest. A declaration of interest required in regard to a spouse must likewise be made in regard to a civil partner.
In regard to civil liability, a civil partner is added to the list of dependants, in respect of whom a person may sue for damages for wrongful death. A pension scheme which provides a benefit for a spouse is deemed equally to provide a benefit for a civil partner.
In regard to protection from discrimination, the Employment Equality Acts 1998 to 2007 and the Equal Status Act 2000 prohibit discrimination against a person on the grounds that the person is single, married, separated, divorced or widowed. The same prohibition against discrimination under the Acts will apply in favour of those who are in a registered civil partnership, or in a civil partnership which has been dissolved.
Part 11 provides for decrees of nullity of civil partnership and the effect of a decree of nullity. The grounds for nullity are that there was an impediment to the civil partnership at the time of its registration such as one or both of the parties being under age at the time of registration, or one or both of the parties not having given informed consent.
Part 12 makes provision for the dissolution of civil partnerships and the effect of a decree of dissolution. To obtain a decree of dissolution, the partners must have lived apart for a period of at least two years in the previous three years and the court must be satisfied that proper provision is made for both partners. Jurisdiction in the dissolution of a civil partnership will lie with the Circuit Court and the High Court and the courts will have powers to make extensive ancillary financial relief, property and pension orders.
Part 13 provides for matters of jurisdiction in civil partnership proceedings, including that cases will be heard in camera; proceedings will be as informal as possible; the Circuit Court and the High Court have concurrent jurisdiction to hear civil partnership dissolution proceedings and make ancillary relief orders; and the District Court has jurisdiction in domestic violence cases and in certain property disputes and maintenance matters. These provisions are similar to those which apply in jurisdiction in family law proceedings.
Part 14 provides for consequential amendments to other enactments, including the Family Law Act 1995 and the Family Law (Divorce) Act 1996. These amendments ensure that if a former spouse registers in a civil partnership, any ancillary relief orders provided for that former spouse under the Acts lapse on registration. This mirrors the position in current family law, whereby many of the ancillary relief orders available under the Acts lapse on the remarriage of the spouse for whose benefit the orders were made. Other enactments are amended by means of the Schedule to the Bill to confer certain property rights, rights of redress and other miscellaneous rights and responsibilities on civil partners as a consequence of registration.
Part 15 establishes the qualified cohabitants redress scheme for unregistered or unmarried cohabiting couples. It implements the Law Reform Commission's report on the rights and duties of cohabitants. As I explained, the redress scheme will provide protection for an economically dependent party at the end of a long-term same-sex or opposite-sex relationship. There is much confusion in this regard, some of which is caused unnecessarily. The redress scheme provides a protective mechanism for a financially dependent partner where the couple have not formally regulated their relationship. It is available only to cohabitants defined as "qualified" in the Bill and may be activated on termination of the relationship, whether by break-up or death.
Section 170 provides that a qualified cohabitant is one of a couple who have cohabited in an intimate and committed relationship for at least five years, or two years where there is a child of the relationship. However, where one of the cohabitants is still married, neither of the cohabitants may be a qualified cohabitant until the married cohabitant has lived apart from his or her spouse for a period or periods of at least four years during the previous five years, the separation period provided in the Constitution for divorce. The reliefs available on termination of the relationship on application to the courts are at the court's discretion and include compensatory maintenance and pension adjustment orders, property adjustment orders and provision from the estate of a deceased cohabitant.
Part 15 also establishes that an agreement between cohabitants regulating their joint financial and property affairs can be enforceable, subject to the observation of certain formalities. The court may set aside a provision in any agreement only in exceptional circumstances where its enforceability would cause serious injustice. In addition, Part 15 extends certain statutory protections to cohabiting, unmarried, opposite-sex and unregistered same-sex couples. The Residential Tenancies Act 2004 and the Civil Liability Act 1961 are amended in order that provisions in these Acts which currently apply only to couples defined as "living together as husband and wife" will also apply to same-sex couples. There has been much confusion in this regard. This provision does not confer any statutory legal rights similar to the legal rights laid down in the Succession Act. It is a right to go to court to prove financial dependency. Ultimately, it is up to the court to decide whether orders are to be made in that respect.
Part 16 specifies that in making orders under the Bill the courts must have regard to the rights of others, particularly to a spouse or former spouse, or a civil partner or former civil partner.
On registration of a civil partnership, same-sex civil partners will be treated in the same way as spouses under the tax and social welfare codes. The necessary legislative provisions are being prepared for inclusion in the next finance and social welfare Bills that will, on enactment, come into effect at the same time as the commencement of the registration provisions in this Bill. There is no question of the same tax and social welfare provisions being extended to cohabitants, be they same-sex or opposite-sex couples.
As the law stands, gay couples are prevented from formalising their relationships in the eyes of the law and society at large. Their relationships are legally unrecognised and unprotected. This is addressed by the Bill as comprehensively as possible, consistent with the requirements of the Constitution. The Bill recognises that there are persons in committed gay relationships who wish to share duties and responsibilities. They are afforded the choice to register their partnership and become part of a legal regime that fully protects them in the course of that partnership and, if necessary, on its termination. The redress scheme, too, is a measured response in law to a growing need for protection of vulnerable cohabitants, people who are living together but not married.
I look forward to Members' support for the Bill, the detail of which is complex and technical, but the object of which is to ensure our law is humane, tolerant and protective. The Bill was the subject of considerable and detailed discussion in the Dáil. As I said, I always look forward to the discussion of Bills in the Seanad. I can understand the views expressed on both sides of the House in this respect, but, as the Legislature, we are obliged under the Constitution, whether we like it, to frame legislation within the parameters laid down in the Constitution. There are two significant articles in the Constitution, one of which states every citizen is equal in the eyes of the law; the other which has been confirmed many times by the Supreme Court relates to the special protection afforded to marriage. The Bill has been framed to strike a balance between these two articles.
I appreciate that there are those who believe the Bill does not go far enough and those who believe it goes too far. I represent a political party which made a very significant promise in its election manifesto. Sometimes politicians are accused of not keeping promises. This promise was made by my party and completely endorsed by the Fianna Fáil parliamentary party as it entered government with the Green Party. It was included in the agreed programme for Government and unanimously endorsed by the parliamentary party and again about a year ago when there was a review of the programme when I was one of the negotiators. Another commitment was made to pass the legislation as quickly as possible, a commitment we are fulfilling. The outcome of the review was also unanimously endorsed by the parliamentary party.
I have heard arguments from some people that I would not engage in discussing this legislation outside the House. We are often criticised for ignoring the Houses of the Oireachtas. This is the place to have the discussion. If people want to have discussions on radio programmes, that is fair enough, but this is the primary place where we should have our discussions——