I move recommendation No. 1:
In page 4, to delete lines 4 to 7 and substitute the following:
"(2) A civil partner shall be treated for income tax purposes as living with his or her civil partner unless they are in fact separated and in such circumstances that the separation is likely to be permanent.".
The general intention of this recommendation is the same as the other recommendations I, along with my colleagues, have proposed — to ensure the Bill provides the same tax treatment for civil partners as that of married couples under all tax categories and that the children of civil partners are afforded the same treatment as children of a married couple. On Committee Stage, the Minister of State, Deputy Brian Hayes, said that registered civil partners will receive the same tax treatment as married couples in respect of income tax, stamp duty, capital acquisitions tax, capital gains tax and VAT. The Oireachtas Library and Research Service Bills Digest states this Bill gives civil partners an equal treatment to married couples regarding tax, that the Bill amends tax legislation to provide that civil partners will be treated with equal status to married partners in tax affairs and that a child of civil partners is given equivalent tax treatment to a child of a married couple.
In light of comments by Senators on the Bill, the Minister of State emphatically declared that civil partnership is not marriage because it cannot be marriage, a point with which I am wholeheartedly in agreement. My recommendations do not seek to push the institution of civil partnership any closer to marriage. On Committee Stage, I expressed the view that the institution of civil partnership will never represent equality for same-sex couples; therefore, there is no need to fix it in this regard.
By way of a tangential point to my recommendation, I wish to respond to the declarations by the Minister of State on Committee Stage. He stated three times during the debate that the only way marriage can be changed under our constitutional architecture is by constitutional referendum. In the first instance of declaring this he referred to the case of Zappone and Gilliganv Revenue Commissioners, which is still before the courts. I am that Zappone. An appeal was lodged to the Supreme Court in early 2007 and we are still awaiting a date. In light of the fact that there will ultimately be a Supreme Court judgment on the case, it is too soon to argue that the only way marriage will be extended to same-sex couples is through a constitutional referendum of the people.
I note, too, that on Second Stage a majority of Senators were in agreement with the comments I made and concerns I raised and the need to amend the Bill in certain instances, which is what is behind the recommendations I am putting forward, along with my colleagues. Those recommendations focus solely on the Taxes Consolidation Act to ensure equal protection for registered civil partners and their children when that civil partnership breaks down.
I note also the comments of Senator Mullen on Committee Stage and offer him the same respect he offers me. It is the only way to do our business here. My views are also rooted in an ethical concern for the good of the common and that the common is good when it affirms the diversity of human identity in its entirety.
The more specific intention of the first recommendation is to bring the definition of "civil partners" living together and separated in line with that of married couples. If this recommendation is accepted or if the Minister considers it, it will mean that civil partners, like married couples, may be separated, thereby considered separated for tax purposes, but still living under the same roof. As I outlined on Second Stage, there may be instances whereby, in light of difficult financial circumstances, civil partners whose relationship has broken down cannot maintain two separate dwellings and are effectively forced to live together.
I note that tax law must follow general law — the Minister of State, Deputy Brian Hayes, referred to that in his response to me — and therefore this Bill must not go against the Civil Partnership and Certain Rights and Obligations of Cohabitants Act. It is correct to note that the civil partnership Act does not expressly provide for a judicial separation. It only provides for dissolution and annulment. However, having read the Act again there does not appear to be anything within that Act that prevents a deed of separation or a separation agreement between civil partners. There is an implicit recognition in the Act that civil partners can be separate. Section 127(3) of the Act requires the court to have regard to separation agreements in considering the making of a post-dissolution order. I am arguing, therefore, that there seems to be no impediment in the Act that couples are recognised as separated for taxation purposes. In this recommendation they can be recognised as separated for taxation purposes while still living under the same roof as married couples.