Civil Partnership Bill 2009: Committee Stage.

This meeting has been convened for the select committee to consider the Civil Partnership Bill 2009. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials. Deputy Brendan Howlin is here in substitution for Deputy Rabbitte. A grouping list has been circulated. Several submissions have been received on this Bill and three lists were circulated to members previously. Hard copies may be obtained from the secretariat.

There have been requests to meet the committee regarding the Civil Partnership Bill from the National Men's Council of Ireland, Family Rights and Responsibilities Institute of Ireland, and Women in the Home. Unfortunately, we do not have time to meet these groups before proceeding with our deliberation of the Bill, but I indicate these requests for members' information.

I am a visitor at this meeting.

I am sorry but Senator Norris cannot attend this select committee meeting.

That lets me off the hook. I note that I would have been delighted had members met those people.

Not entirely. Some of the people one meets are completely unrepresentative.

I have just written to the Archbishop of Dublin as the alleged Church of Ireland group had no mandate whatever, despite having presented itself as so having. I will make that point when I get the opportunity. I thank the Chairman for letting me know as I have another committee meeting to attend.

No problem. Does the committee agree to note submissions Nos. 10, 22, 32, 27, 28, 41, 47, 49 and 61 on list 1, Nos. 55 to 138, inclusive, on list 2 and Nos. 139 to 162 on list 3? Agreed. As the committee is in public session, I request that all mobile telephones be switched off.

SECTION 1.

I move amendment No. 1:

In page 13, subsection (1), line 13, after "Partnership" to insert "and Cohabitants".

This amendment relates to the Title, which I believe should be changed to incorporate the entire scope of the Bill and to be entitled The Civil Partnership and Cohabitants Bill. There has been much media attention regarding the civil partnership and same sex aspect of the Bill. This has been the focus of much of the commentary. In its entirety, however, the Bill has the capacity to affect a far greater number of people as it covers both same-sex couples and cohabitant heterosexual couples. In its report of December 2006, the Law Reform Commission specifically identified the need for an information campaign to inform people, particularly those who may have been cohabiting for a number of years and who may not be aware of or familiar with the terms of the Bill. The commission recommended that the Family Support Agency should have a role in this regard. Information is highly important and one can engage in the process of providing it to people by amending the Title, which is akin to the cover of the book. In an effort to alert people as to what is being done by way of a pre-information campaign, the Title should be changed and accordingly, I propose that the Title should be The Civil Partnership and Cohabitants Bill 2009.

I was not aware the Minister intended to make an opening statement. Does he still wish to do so?

It is important that I do so to put the present position in context. A Second Stage debate took place on this legislation and members have had the opportunity to make their points. They have been able to point out what they considered to be the Bill's positive aspects and to raise those issues which they considered to be necessary. I wish to emphasise that one is obliged to adhere to the constitutional imperative that marriage continues to attract a special protection. Moreover, it is clearly understood as a matter of constitutional jurisprudence that marriage is between a man and a woman. That said, the Bill makes significant rights in respect of same-sex couples. As I stated during the previous Oireachtas debate on this Bill, it raises the need to strike a balance between the special protection for marriage, as has been determined——

I apologise for interrupting the Minister but I am not aware of any procedure for making opening statements during a Committee Stage debate. In essence, this would be a Second Stage speech and presumably, all members would then be obliged to restate the positions they took on Second Stage. I welcome the Minister's——

It has been my practice——

It has been the practice here to allow the Minister to so do.

It has been the practice at these committees for the Minister to make an opening statement in this regard.

I presume therefore——

It does not matter if the Deputy feels——

In respect of the meat of the issue, it is important that the Minister should make his opening statement. However, I presume the Opposition members will make their opening statements thereafter and a Second Stage debate will ensue. If that is what is wanted——

If the Deputy wishes to make an opening statement, I have no problem with it.

With respect, I have a problem with it. This is a lengthy Bill, in excess of 115 pages. My understanding was the committee was dealing with this Bill on Committee Stage. I already have moved an amendment.

In that event, members should leave it be.

It was my fault as I did not realise the Minister wished to make an opening statement. I apologise for that.

I wish to put on record that such opening statements have been made previously and it would have been fine.

Had I not made an opening statement, someone probably would have found fault with that. However, leave it be.

That being the case, the Minister might deal with the first amendment.

For the record, I did not have a problem with the Minister making an opening statement. My problem was with everyone making opening statements because I am unsure how long the committee intends to debate this legislation today. The Chairman might advise the committee as to the expected length of this meeting.

I have been appearing before this committee since I became Minister for Justice, Equality and Law Reform and it has been the practice——

When I was not present.

——that on introducing a Bill, the Minister would make a short opening statement on it, after which the committee would move on immediately without any response from the Opposition spokespersons. While that has been the practice, if Deputy Flanagan has a problem with it, I do not have a problem and the committee should proceed.

It is possible to query such matters without having rancour.

I want to get on with it.

Members should get on with it as we are arguing over nothing.

The Minister should respond in respect of amendment No. 1.

I have no problem in principle with this amendment. On the point raised, even though the issue has been well-targeted in the Long Title, which describes fully the purpose of the Bill, it probably would help public discourse on the rights and duties of both civil partners and cohabitants. I ask the Deputy not to press the amendment and I will revert to it on Report Stage.

I am grateful for the point made by the Minister and will withdraw the amendment in the hope that he will revert on Report Stage with a similar engagement. However, if the Minister accepts in principle the wording of the amendment and does not have a problem with it, I fail to discern how he can improve the Title without using the phrase "Partnership and Cohabitants", as I have done. I must take it that the Minister merely wishes to have his own stamp on the amendment, rather than do as he should and accept the amendment. Nevertheless, I will withdraw it.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 13, lines 14 to 22, to delete subsections (2) and (3) and substitute the following:

"(2) This Act shall come into operation on the day that is 3 months after the passing of this Act.".

The amendment, which proposes that the Act shall come into operation on a day that is three months after its passage, will introduce an element of certainty and clarity. There may be much confusion if certain parts of this Bill are to be triggered after a certain date or in a piecemeal fashion. In recent years, a practice has arisen whereby portions of legislation have become operative while other portions have not. Given the nature of this legislation and the changes inherent therein, certainty and clarity are important. In addition, having a date that is some months after the passage of the Act will provide a sufficient lead-in time for preparation. I refer to the importance of engaging with people and of an information campaign, particularly for heterosexual cohabitant couples who may not be aware of their new duties and obligations to each other under this legislation. I have tabled this amendment to introduce certainty. Clarity and certainty are important. I do not have a real difficulty with three months, nor would I have an immediate difficulty were the Minister to say six or 12 months provided there was an element of clarity and certainty and we do not trigger this legislation incrementally. We will give it sufficiently detailed debated to allow it to become law in its entirety. I am urging that an element of clarity and certainty be included that would not otherwise be present.

An open capacity for a Minister to commence sections is a standard part of any Bill. By and large, there are good reasons for this, as the technical drafting of secondary legislation and negotiations on, for example, financial elements might need to occur before sections can be commenced. However, some degree of certainty is required, for which reason I support the amendment. The Minister may indicate a different timeframe, but it should be specified. The Statute Book contains enactments that have never been commenced. Sometimes for good reasons and sometimes for bad reasons, the will of the Oireachtas has not been implemented by the Executive. It is not a good practice.

The committee and the Minister could not only indicate that these are serious and important legislative measures, but that there is determination for them to become law within a practical timeframe that gives a degree of optimism to people who are desperately looking for the legal certainty this Bill would provide to their relationships.

The commencement provisions in section 1 are standard for a multi-part and complex Bill of this nature. They enable the staged commencement of the provisions to be made by order of the Minister for Justice, Equality and Law Reform. In addition, Part 3, which deals with the civil registration provisions, is to be commenced in consultation with the Minister for Social and Family Affairs, whose remit includes civil registration matters.

Flexibility in the commencement of the provisions of the Bill is essential. For example, the commencement of the civil partnership provisions must be co-ordinated with the Finance and Social Welfare Bills, which will implement a range of changes to the tax and social welfare codes for civil partners. It is also important to ensure that the necessary administrative arrangements relating to civil partnership registrations are made before commencement.

The commencement provisions allow for the commencement of parts of the Bill at different times. The proposed amendment would allow no such flexibility, so I cannot accept it.

I am reluctant to press the amendment in light of the Minister's statement. Will he indicate the Department's timeframe? Presumably, the committee will reach agreement on the form of the Bill and it will revert to the House. There is every reason for it to become law in its entirety by June 2010. Will the Minister indicate his plan as to which parts of the Bill will become operative and when? It is essential that people have clarity and know the exact timeframe for the legislation's introduction. If we engage in an uncertain and unclear process, we will do the entire operation a disservice.

I could be convinced by the Minister's comments to the effect that the input of other Ministers is required as far as commencement orders are concerned. I could also accept that this amendment, if passed, would not allow the Minister the type of flexibility he wishes, but flexibility should not be confused with a lack of will or direction. We need certainty and clarity, so we must proceed. If I withdraw the amendment, it will be on the basis of the Minister convincing me by way of his direction on this issue.

I have already publicly and privately told members of the committee that I want to get on with this Bill and have it passed by the Oireachtas before the summer. Obviously, it all depends on Dáil time, but I do not anticipate any major problem. The subsequent commencement of the Bill depends on the work done by the other two Ministers involved and their Departments. My information is that they are working on the basis of the Bill as published and will finalise the arrangements on taxation, social welfare and civil registration issues in their respective Bills. When those will be introduced is a matter for the Ministers, but I understand they will operate as quickly as possible. I assure the Deputy that there is no effort on our part to delay the commencement of this legislation once it is passed by the Oireachtas.

On the basis of certainty and clarity, does the Minister accept the need for a national information campaign? If so, how does he envisage it taking shape? The Law Reform Commission, LRC, suggested that the Family Support Agency, FSA, should have a role in leading the campaign on informing people as to the nature, import and consequences of the legislation. This is part and parcel of the coming into operation on a particular day of the legislation or parts thereof. We are discussing commencement orders and the Act coming into operation. It is timely in the context of this amendment that we deal with the nuts and bolts of a public campaign to inform people of their obligations as well as their rights under this legislation.

Yes, we anticipate there will need to be a publicity campaign on all of these issues. The Deputy mentioned the FSA. Given that I oversaw the rapid increase in the remit of the FSA during my time as the Minister for Social, Community and Family Affairs, I expect it to be involved in the publicity campaign.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 and 3 agreed to.
SECTION 4.

I move amendment No. 3:

In page 14, subsection (2)(c), lines 31 to 33, to delete subparagraph (ii) and substitute the following:

"(ii) prior to the death had ever been ordinarily resident in the State for a period of one year.".

We are moving into the meat of the Bill. Part 2 deals with the status of civil partnerships and section 4 is on the declaration of civil partnership status. Section 4(2) deals with the conditions of declarations and sets out that the court may make an order under subsection (1), the declaration of a civil partnership status, if one of the civil partners meets one of the conditions laid out in subsections (2)(a) to (2)(c), which state:

The court may only make an order undersubsection (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

(ii) had been ordinarily resident in the State throughout the period of one year immediately preceding the date of death.

Subparagraph (ii) is the one I wish to amend. My amendment comes from those directly involved who have personal experience of how this provision would impact on their lives. The notion that there is a timeframe of one year immediately prior to the death which must be satisfied before somebody would have recourse to the courts of the land to seek a declaration of a civil partnership is unduly restrictive and unacceptable. I can think of myriad cases in which it could not be complied with and it would be an injustice not to allow access to the courts for them to be able to make a determination in such cases.

I am advised also that such a restriction of access to the courts on a matter of such fundamental importance might well be in breach of our commitments under the European Convention on Human Rights as it was transposed in the 2003 Act in this State. Will the Minister reflect on the undue restriction of the requirement of being ordinarily resident in the State throughout the period of one year immediately preceding the death? One can imagine somebody might go abroad for treatment for a prolonged illness prior to death. We know colleagues in this House who required such treatment. The formulation I propose would give more flexibility and provide a greater level of justice in this matter.

Section 4 confers power on the court to make declarations as to the status of a civil partnership. This is necessary to ensure that any question as to the validity of a civil partnership or the validity of a dissolution or a decree of nullity may be examined and ruled upon by the court.

A person who is domiciled or ordinarily resident in the State may apply to court for a declaration of civil partnership status in certain circumstances, including on the death of his or her partner. In such a case, there may be implications for the estate of the deceased, for example, in determining the legal share to which the survivor may be entitled or the tax regime applicable to an inheritance or in determining the proper distribution on intestacy. To make an application, a person or his or her civil partner must be connected to the State either by being domiciled here or having ordinarily resided here for at least one year immediately preceding the death.

These are the rules which also apply to declarations of marital status. The amendment deviates from this settled policy so that a person may apply for a declaration of status where his or her civil partner has died, if either of the partners had ever been ordinarily resident in Ireland for more than a year. It moves away from the principle of being domicile or being ordinarily resident in the State. Where a person is entitled to be treated as a civil partner under the law of the State at the time of the death of his or her partner, he or she will be so treated for succession and all other purposes without the need for a declaration of civil partnership status.

It is against public policy to widen the court's jurisdiction to such an extent that persons with only a loose or distant connection to the State might seek a status declaration here with the consequences that may bring. That would be the consequence of the type of amendment tabled by Deputy Howlin. In declaring that such a civil partnership is valid, the surviving partner may gain significant inheritance benefits to the detriment of others involved in or connected with that unit. Equally, the surviving partner may unfairly benefit from more favourable inheritance tax treatment. Deputy Howlin gave the example of somebody losing rights by moving away for medical intervention. This would not be the case because it would be determined by the person's domicile, which cannot be lost easily under our existing law.

The Minister makes the case that there are big issues at play with regard to the access of a surviving partner in these circumstances to rights of succession and rights to property. The criteria laid down by the Minister in the Bill is that in order to get access to the courts for a declaration of civil partnership status where one partner has died, that partner must have been ordinarily resident in the State throughout the period of one year immediately preceding the date of death. I am at a loss as to understand why the one year leading up to the date of death is not a loose or distant connection to the State but a different year is such a connection. It strikes me as an odd take on connection to the State. Why would one set of 12 months define a connection that is important and proper and a different set of 12 months be loose and distant? What is at play is the allowance of the court to make a determination of what is proper. All we are asking for here is access to the court and not any conclusion in and of itself.

There is merit and justice in the case I am making that somebody would be debarred from access to the courts for making a determination. Obviously, matters of residence are clear cut. However, making a determination on the basis of what set of 12 months grants or denies one access to the courts is splitting hairs. It is not a reasonable construction to put that the 12 month period I suggest is loose and distant and the 12 month period suggested by the Minister is altogether a different connection to the State simply because happening to die in the period one is here gives one a much stronger or more secure connection to the State.

There are time honoured rules of domicile which determine a person's entitlement or otherwise to be treated in a State. The proposal made by Deputy Howlin would bring very great uncertainty into that. It would drive a coach and four through the rules on domicile which are internationally recognised. I understand what Deputy Howlin is saying about giving people access to court. Sometimes there are issues to be determined by the courts on where a person's domicile is, but they are few and far between because it is normally recognised and understood where a person is correctly domiciled. Deputy Howlin is endeavouring to provide an opportunity to virtually anybody from outside the State who has been in the State for a year to apply to the court and claim benefits that perhaps in the normal course of events he or she would not be entitled, to the disadvantage of people who would be regarded as entitled to those entitlements. I would hazard a guess that this would lead to far more legal action because of the uncertainty that the proposal would bring into the situation which is reasonably well understood and set down not only in this jurisdiction, but throughout the international jurisdictions with which we normally have connection.

Prior to Report Stage, I will certainly research further what are the international patterns. It still strikes me as odd that somehow there is this extraordinary gulf between the 12 month period prior to death that gives this connection that is proper and right and that the 12 months bar a month would not give that connection. The general thrust of the development of justice in recent decades has been in so far as possible to provide access to the courts, to determine matters of rights in particular. The normal flow of new legislation, both domestic and European, has been as far as possible to give access for the courts to determine matters of justice rather than to deny that. It is my contention that to allow greater access for people to make their case and for the merits of the case to be determined by an Irish court of law is a better construction on advancing the legislation than being restrictive on what is an odd basis. There is a prescribed 12-month period. If a person leaves the jurisdiction having been here for a couple of years but wants to have treatment elsewhere, the person would be denied access to the courts under this definition and would have to make a separate domicile case.

I do not want to take up too much time but I have been given cases by activists and legal advisers working for groups who want to avail of partnership law. Cases will be denied access to the Irish courts because of this provision and as far as is possible and practicable, we should afford those people such access.

I put it to the Minister that both he and I could reflect further between now and Report Stage and neither of us would have a closed mind on the issue. Perhaps there could be a formulation that broadens access in a way that would suit both our purposes.

I have some sympathy with the point raised by Deputy Howlin in the context of a greater level of social and economic mobility nowadays than may have been the case in the past. I understand from the concept of being ordinarily resident in the State for a period of 12 months prior to an event that some location in the State would be the place of a person's principal private dwelling. We can all consider cases where, for example, given the nature of employment and careers, a couple may well be overseas in an apartment in Spain or Portugal for a period up to a year before a death. An application could be made to the court by a third party that could, in effect, frustrate the issuing of a declaration of civil partnership status.

I accept the Minister's comments on the domicile issue and internationally recognised conventions and definitions but I would not like to see a case where the court would be restricted or applicants to the court may be minded to use this section to argue that a person, for one reason or another, was not ordinarily resident in the State for a period.

I support the amendment being put forward. The Minister's officials are aware of cases involving immigration status where a period of time prior to applications is calculated. Many of those have been thrown up because people had extended holidays or returned home. In the current economic climate, many people are forced into a position where they must leave this jurisdiction and a level of flexibility must be provided in the legislation as outlined by the previous speakers. This would ensure we fulfil our objective. The wording as it stands is far too restrictive and Deputy Howlin's proposal is far more balanced in its approach.

I will reflect on it and I suggest that Deputy Howlin consider his amendment again in the context of international practice. The problem with the Deputy's amendment is that prior to death, somebody could be ordinarily resident in the State for one year at any stage. It could have been 20 years ago, which would potentially give the person an opportunity to apply for an order. I do not think it would be successful.

What is being introduced by the amendment is uncertainty in the area of entitlement to succession, in particular, and taxation. Deputy Flanagan referred to a couple which may have used an apartment for a couple of months or a year or two in Malaga before the death. They do not lose their domicile status and are obliged to pay tax primarily in Ireland, as Deputy Flanagan knows. It is extremely difficult to lose domicile of origin. By using the term "prior to the death had ever been ordinarily resident in the State for a period of one year.", the amendment affordscarte blanche to frustrate the whole idea of this Bill, which is to provide certainty for people in these types of partnerships. That certainty allows them to know the norm for succession and taxation.

I am aware of at least one case that is the genesis of this arrangement. We cannot determine legislation based on one case, although there may be others we are not aware of. The Department is not aware of any other case. To ensure the type of certainty we have in heterosexual arrangements with taxation and succession, we should hasten slowly in this regard. We can return to the matter on Report Stage.

I take the Minister's point. On reflection, the amendment I suggest is perhaps too broad. I am certain the Minister's suggestion is too restrictive and that is why I hoped that instead of focusing on the words I suggest, the Minister might consider looking for a form of words that would improve what exists.

The Minister will agree that the notion of residence and domicile is very complicated. His proposition is that a person could be born, reared and lived all his or her life in Timbuktu but as long as he or she spent the last 12 months of life here, there is a connection. There was a programme on RTE last week featuring somebody who was resident for 40 years in Scotland but is as Irish as anybody. We have met such people, who consider themselves part of this State, everywhere in the world. The Ministers travelling the world every St. Patrick's Day recognise that.

That person's domicile would be Scottish and he would pay tax in Scotland.

Not at all. People and their families may be domiciled and well established in other jurisdictions but they might decide to return.

Where do they pay tax?

They would pay it wherever they live.

It is their domicile.

Are such people part of the Irish nation? I thought the Irish nation had embraced all these people for years but maybe there is a new policy.

It is the extended nation.

I do not want to go on a tangent because this is a very narrowly focused point. I will consider the issue again. It is not my intention for somebody to contrive a relationship to this State for the sake of some advantage but there are people who have a real connection with the State who will be at a disadvantage by being denied access. I ask that the matter be tested by the courts.

Suggestions can be conjured that might qualify to state a case but they would not have a snowball's chance in hell of having it supported by the courts. The courts are meant to make determinations of right and justice. The issue will in the coming years be a very important matter for people in loving relationships and who want a declaration of their status to be determined by the Irish courts, but who will be denied access to the courts on this technical matter. That is the basis of my amendment. I seek to tighten it on Report Stage, but I ask the Minister not to approach it with a fixed view so that we can attempt to find a better formulation than the one that is currently presented in the Bill.

Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."

Do the civil partnership and cohabitation elements of this Bill have implications for the Immigration, Residence and Protection Bill? Perhaps the Minister will introduce amendments in this regard to this Bill on Report Stage or, at a later stage, to the immigration Bill. There are declarations with regard to the status of civil partnership, and later we will be dealing with the issue of cohabitees. These have implications for the immigration Bill that is currently before the House. How does the Minister intend to deal with this from the point of view of both civil partnership and cohabitation? Does he intend to deal with both aspects and, if so, will it be in this Bill or in the immigration Bill?

I am somewhat at a loss to understand the point. There is nothing in this Bill about immigrationvis-à-vis civil partnerships.

Is it the Minister's intention to deal with the issues raised here in the immigration Bill?

In what respect?

With regard to the recognition of relationships from the point of view of immigration status.

The matter has not been drawn to my attention.

In the immigration Bill, recognition is provided for spouses of applicants. In certain circumstances, the spouses of people who are residing in this country and who have residency permits from the Department of Justice, Equality and Law Reform are also entitled to residency; some are entitled to work here under certain circumstances. This legislation brings a completely new aspect to the existing definitions of "spouse" and so on under the immigration Bill. Will provision be made in the immigration Bill for the new categories of person we are now establishing in law — that is, civil partners and cohabitees?

I do not think it is necessary. Section 4(2) of the Civil Partnership Bill states: "The court may only make an order undersubsection (1) if one of the civil partners [who may be applying for immigration status] ... has been ordinarily resident in the State throughout the period of one year immediately preceding the date of the application”. I do not see the necessity of changing another Bill.

Indications were given that this issue would be considered, either in this Bill or in the immigration Bill. In any event the answer to my question is that it is not being dealt with in this legislation.

No, but the intention is that, as a result of the passing of this legislation, spouses in heterosexual couples and civil partners will receive the same treatment with regard to their entitlements to apply. That applies to anyone in the State provided he or she fulfils the criteria laid down in this Bill, whether he or she is an applicant for immigration status or an ordinary citizen.

What about the position of cohabitees as defined in this Bill?

In what sense?

The Minister has made the point that couples that have been given recognition under the Civil Partnership Bill will be considered in the same manner as spouses. Will a similar test be applied for cohabitees?

This Bill gives certain recognition to cohabitees. When applying for immigration status, will cohabitees be considered on the same basis, as is outlined in this legislation?

I would have thought each case would be determined on its merits.

Is the Minister saying a civil partnership will be considered on the same basis as a marriage, but cohabitees will be considered on a case-by-case basis?

If the partnership complies with this legislation, yes; and if a de facto civil partnership is proven.

So we are dealing with cohabitees differently from spouses in immigration cases?

If they comply with the conditions laid down under the legislation.

Which legislation?

This legislation. As I said, it depends on the circumstances of the case. It is not intended, because of the way the legislation is drafted, to make any difference between a spouse and a cohabitee.

It is not intended to make any difference between a spouse and a cohabitee.

It depends on the circumstances of each applicant.

Question put and agreed to.
SECTION 5.

Amendments Nos. 4, 5 and 8 are related and may be discussed together by agreement.

I move amendment No. 4:

In page 15, subsection (1), line 24, to delete "may" and substitute "shall, on the commencement of this Act".

This gives the power to the Minister to declare a class of legal relationship entered into abroad as being entitled to be recognised as a civil partnership in this jurisdiction. It gives the Minister a certain flexibility to make such declarations in the future as other countries change their legislation to facilitate civil partnerships or same-sex marriage.

It is important that the Minister immediately declare the class of relationships that are currently entitled to recognition. He should perhaps lay an order before the Houses of the Oireachtas at the same time as this Bill is going through the Houses. It is indicated that there are certain classes of legal relationship entered into by two parties of the same sex that will be entitled to be recognised under Irish law. However, many Irish gay couples have registered or married abroad and they will need immediate clarity on the recognition of their status in this jurisdiction.

I am a little concerned at the statement in section 5 that 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 [in this jurisdiction]". Facilitating the Minister to do something is not the same as mandating him to do it. Rather than allowing for flexibility, it is important that we ensure the Minister introduces clarity to the status of registered foreign relationships. The word used should not be "may", which implies "may not", but "shall". I would like to hear the Minister's views on this.

My amendments, Nos. 5 and 8, are being taken as part of this group. I support Deputy Flanagan's view that the word "may" at the beginning of section 5 should be changed to "shall".

What I wish to achieve through my own amendments is rather different. In amendment No. 5, I propose that the phrase "(including a relationship entered into prior to the commencement of this section)" be inserted into section 5(1), which 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 then sets out a number of criteria that must be fulfilled. I suggest we insert this subsection which states: "(including a relationship entered into prior to the commencement of this section)". It is important.

I shall deal with amendment No. 5 first. There is clarity in respect of relationships that have been solemnised in other jurisdictions prior to the commencement of this section. We should state that so that there is no doubt or ambiguity in its regard. The insertion of the sub-clause in my amendment would achieve that.

Amendment No. 8, in my name, is related. It proposes to add two new subsections, (3) and (4), to subsection 5. The amendment states:

In page 15, line 47, to insert the following subsections:

"(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 relationship to which the section applies shall be and shall be deemed always to have been valid as to form if it would have been so valid if it had been registered in this State.

(4) An t-Ard Cláraitheoir 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-Cláraitheoir.

The two net issues in amendments Nos. 5 and 8 are first, that relationships entered into prior to the commencement of this section would be recognised clearly and unambiguously and second, in the subsection of amendment No. 8 as outlined, where one of the spouses has died, there would be a provision for such recognition.

It is important for the members opposite on Report Stage, and for other persons outside the House, that I should read into the record the note I have and then we can have a further discussion.

Perhaps the Minister might circulate the note afterwards.

It will be available on the Dáil record as is the case for most of the other amendments. Otherwise I would have to circulate all the notes.

Section 5 provides that classes of foreign relationship made subject to certain criteria be recognised by ministerial order as entitled to be treated as civil partnerships under Irish law. Amendment No. 4 would require the Minister, on commencement of the Act, to make such an order but would not provide for the making of further such orders at a later time. This would make it impossible to recognise categories of foreign relationship which come into being after the commencement and enactment of the legislation. In other words, we would have to pass subsequent primary pieces of legislation to give effect to certain categories of foreign relationship and, therefore, the amendment would not be acceptable. Given that the law is evolving in many other jurisdictions regarding the recognition of same sex relationships it is essential that we retain the flexibility to make orders on an ongoing basis in order to reflect these changes. This would allow us to take account of the changed legal environment internationally.

Amendment No. 5, proposed by Deputy Howlin, explicitly states that a relationship entered into prior to the making of an order under section 5 is also recognised by that order. However, section 5 is not limited to the recognition of foreign relationships entered into after commencement. Subsection(1) allows the recognition of a class of foreign registered relationship without restriction as to when the relationship was entered into. For example, civil partnerships entered into in Northern Ireland since the commencement of the scheme in that jurisdiction in December 2005 but before the Bill is enacted would be recognised here once a ministerial order is made under section 5 within the period of 21 days as laid down.

Deputy Howlin has proposed a further amendment to section 5. Amendment No. 8 allows for the recognition of a foreign civil partnership where one of the partners dies before the section is commenced and, possibly, prior to the enactment of the Bill. It would not be acceptable to provide for retrospective recognition of foreign civil partnerships, particularly where there is potential detriment to third parties, for example, by improving the share of a surviving partner in the deceased partner's estate. Retrospective recognition would introduce uncertainty into taxation and succession codes.

The amendment would also have a discriminatory effect on the basis of nationality as drafted at present. Some of the categories 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 of the partners was Irish or was resident in Ireland at the time the relationship was registered. The proposed subsection (4) would create a new function for the Ard Cláraitheoir in enabling him to register relationships entered into in other jurisdictions as civil partnerships. The making of a ministerial order under subsection (5)(i) is itself sufficient to entitle the parties to foreign registered relationships to be treated as civil partners of each other under the law of the State. There is no requirement or necessity for re-registration. By way of comparison, opposite sex couples who marry in other jurisdictions are neither required nor permitted to re-register their marriages under Irish law. There is no reason that couples entitled to be treated as civil partners should do so either.

I cannot accept amendment No. 4 for the reasons I outlined to Deputy Flanagan. Amendment No. 5 is unnecessary and I cannot accept amendment No. 8 for the reasons stated, namely, that it would provide retrospective recognition of foreign civil partnerships which, for the reasons we discussed regarding the earlier amendment, potentially would give benefits unduly to certain parties to the detriment of others.

I refer to the point the Minister began with regarding amendment No. 4. I am not sure that I agree with him on this. He said that if my amendment mandating the Minister to make an order were enshrined in the legislation that would, in some way, tie his hands. However, under the current wording, a person may opt in or out, or may do nothing. It is important that we know, and that the persons for whom this legislation is intended to facilitate know where they stand. It is essential that the Minister make a declaration as to the class of relationships that are currently entitled to recognition here. Under this section the Minister may or may not make such a declaration if he or she is so disposed.

If my amendment facilitating the Minister to be more restrictive is not accepted I believe the opposite will be achieved. It is essential, as legislation similar to this evolves in other jurisdictions, that we know precisely what will be recognised in this State. Already there are situations where civil partnerships have been registered in other jurisdictions and where gay marriages have been registered in other jurisdictions. We must have immediate clarity as to their status under Irish law and whether they will be recognised. I am not sure it is sufficient for the Minister to say he may make an order declaring a class of legal relationship entered into to be recognised under Irish law. It is essential that we know that.

I do not wish by my amendment to facilitate a scheme of arrangement such as the Minister stated would occur if the amendment were carried. Will the Minister reconsider it? It may not arise during the Minister's tenure of office but a future Minister for justice may not be disposed towards making any orders on the matter of a class of legal relationship and whether it would be recognised here. That would introduce a level of uncertainty that could give rise to difficulties.

It is important to respond to that issue because it is somewhat separate from the other two issues. If the Deputy reads which he is strictly proposing, he will note that it would completely tie the hands of the Minister in that he or she would only be able to make a once-off order. The Deputy proposes the wording that the Minister "shall, on the commencement of the Act, by order ...."

That is not my intention——

I accept that.

——but I ask the Minister to accept my point and come back to me on it.

The wording as it stands gives the Minister flexibility.

The Minister might clarify the dialogue on this.

Deputy Flanagan proposes that the Minister "shall, on the commencement of this Act, by order, declare ... a class of legal relationship ..."

That is the point I am making. The proposed term "shall" is open as is the term "may". The wording of the section is that "The Minister may, by order, ...". Deputy Flanagan has proposed the wording "shall ... by order", but neither wording implies a once-off event.

No, the Deputy proposes the wording "shall, on the commencement of this Act".

Where is that stated?

That is the wording in the amendment before me.

The Minister is right. The word proposed is "shall".

From a strictly grammatical point of view, the proposal would restrict the hands of the Minister. I appreciate the point Deputy Flanagan is making. It would be the intention to make an order in regard to thede facto situation after the enactment of the legislation to declare classes by order, but it may well be that because of evolving situations in other jurisdictions the Minister may have to come back to the Oireachtas. If we were to accept the Deputy’s specific amendment, it would mean we would have to come back to the Oireachtas at a later stage and pass the primary legislation.

I ask the Minister to consider the point I am making in terms of evolving legislation.

Yes, but I make the point that we believe we have already catered for that in the section 5(1).

On the two amendments in my name, I welcome the Minister's comments on amendment No. 5 but he described it as unnecessary because what is proposes is already captured. He might point out specifically where the law will ensure that section 5 includes a relationship entered into prior to the commencement of the section in order that I can be clear on that. If it is implicit or explicit in the section, would it be a burden to declare it in a way that is transparent in plain English for everybody who will read it?

I draw the attention of the Deputy to the third line of subsection (1) which states "... if under the law of the jurisdiction in which the legal relationship was entered into—— (a) the relationship is exclusive in nature ....” It is not time limited and it is clarified later in subsection (2) where it states “... obliges the parties to the legal relationship to be treated as civil partners under the law of the State from the later of ...” the dates in question.

It would provide greater clarity if the subsection I have proposed was inserted. The Minister might reflect upon that. If that is his intention, which he is indicating to the committee that it is, then the inclusion of my proposal would not do any mischief to the section and it would provide clarity and security for those who were already in relationships prior to the commencement of the legislation. The Minister might reflect upon that.

Amendment No. 8 is an important amendment relating to the death of a person prior the commencement of the Act. The Minister might consider these matters theoretical or fanciful but they will affect real people. His concern about my formulation is that it would be open-ended and would perhaps undo settled legal provisions in regard to people who were in relationships where one partner died and the matter has already been determined.

There is legal precedent for the retrospective recognition of marriages in regard to the Marriages Act 1972. I made this point during the debate on Second Stage in that, under the 1972 Act, marriages solemnised in the Haute Pyrénées area of France, the so-called Lourdes marriages, were retrospectively recognised in terms of a period of decades. Therefore, there is legal precedent for retrospective recognition of what in this case was a ceremony to be deemed to have been a marriage under Irish law because it suited the case. I do not know but I suspect that in 1972 some of those who were involved in those procedures from 1953 may well have died and have settled issues of succession and so on. There is established precedent for these matters upon which the Minister might reflect. If he considers my formulation too broad in scope, I advise that there will be individuals who will be significantly adversely affected if we do not provide some mechanism for recognition of partnerships for people who have died prior to commencement of the section.

On amendment No. 5, I have made my views on that known and I do not have anything further to add.

Am I to understand that the Minister says he accepts the intent of amendment No. 5 but that it is unnecessary because it is captured in the section?

Then why will he not accept the amendment if it would provide greater clarity?

What is proposed is already captured in subsection (1) where it clearly states "... to be recognised as a civil partnership if under the law of the jurisdiction in which the legal relationship was entered into—— ..." and it then complies with certain criteria.

That does not state prior to commencement of the Act.

It is time-based and there is the later of the two alternatives in subsection (2), which, in effect, would probably be the date on which the relationship was entered into under the law of the jurisdiction in which it was entered into.

Very good. I will reflect on that further.

On amendment No. 8, I make the general point that I made in the discussion on an amendment to section 1. The issue of retrospection with regard to recognition of foreign civil partnerships would upset the fine balance in regard to rights and entitlements under succession, particularly succession law but also the obligations under taxation law. I would hasten extremely slowly in passing legislation that would potentially be to the detriment of people associated with a civil partnership relationship, which would be dissimilar to what is normally recognised in regard to normal spousal-hetrosexual relationships. While clearly not recognising marriage, the portent of what we are trying to do is deliver the same entitlement and the same level of entitlements in that they would not be higher or lower, to same sex couples as pertain to heterosexual couples. Specifically on the amendment, the proposed subsection (3)(b) is somewhat arbitrary. The Deputy picked 1 January 2004 but why did he pick that date? He could have picked any other date. As I said earlier, subsection (c) is potentially discriminatory from a nationality viewpoint, in that it refers to citizens or residents of Ireland. One is making it fairly clear that these shall be deemed always to have been valid as being recognised in the State. The general point is the one that would upset the fine balance concerning rights and entitlements under succession and taxation laws.

How stands amendment No. 4?

In view of what the Minister has said, I will probably come back on Report Stage with a more refined version of that amendment.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 15, subsection (1), line 25, after "into" to insert the following:

"(including a relationship entered into prior to the commencement of this section)".

We have already discussed this amendment. I am minded to press it because if the Minister accepts it, it does no damage. It certainly provides clarity for the normal person reading it. I do not want to divide this committee over it, however.

Rather than have him press the amendment, I will come back to the Deputy on it. However, my advice is that it is redundant.

If it does no damage to the Bill and provides clarity, there is no harm in having it. On that basis, however, I will withdraw it and come back to it on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 6 and 7 are related and may be discussed together by agreement.

I move amendment No. 6:

In page 15, subsection (1), lines 31 to 34, to delete paragraph (c).

This amendment deletes paragraph (c) of section 5(1) to ensure that a class of foreign relationships can be recognised by ministerial order, where persons within the prohibited degrees of relationship can register as civil partners. Amendment No. 7 ensures that while a class of foreign relationship may be recognised, a relationship will not be recognised between persons within the prohibited degrees of relationship provided in section 26 of the Bill. For example, under the Bill, all UK civil partnerships would be excluded from recognition here because the UK Civil Partnership Act allows persons formally related by adoption to enter into a civil partnership. The amendments will allow for the recognition in this jurisdiction of UK civil partnerships generally but not a UK civil partnership of two persons within the prohibited degrees of relationship.

I accept what the Minister has done.

Amendment agreed to.

I move amendment No. 7:

In page 15, after line 47, to insert the following subsection:

"(3) Notwithstandingsubsections (1) and (2), an order made under subsection (1) shall not be construed as entitling parties to a legal relationship otherwise recognised by that order to be treated as civil partners under the law of the State if those parties are within the prohibited degrees of relationship set out in the Third Schedule to the Civil Registration Act 2004 (inserted by section 26).”.

Amendment agreed to.

I move amendment No. 8:

In page 15, after line 47, to insert the following subsections:

"(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 1st 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 have already discussed this amendment. The Minister has made some compelling and convincing arguments concerning the way it is now stated. However, there is an issue about the recognition of the status of persons dying before the commencement of the Act. I will reflect on the matter and see if I can find a tighter formulation for Report Stage. On that basis, I will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
Section 6 agreed to.
SECTION 7.

Amendments Nos. 9 and 18 are related and may be discussed together.

I move amendment No. 9:

In page 17, lines 31 to 41, to delete all words from and including "Courts" in line 31 down to and including "Schedule."." in line 41 and substitute the following: "Courts Service,".".

Section 7(1)(f) and Part 5A of the Schedule in section 25 provide the detailed information to be maintained in the register of civil partnerships. The amendment is brought forward on the advice of an tArd-Chláraitheoir, the General Registrar, who has indicated that it will provide greater flexibility if the required particulars are simply taken from the civil partnership registration form, as prescribed by ministerial order in section 59C, inserted by section 16 of the Bill. This is consistent with the manner of registration of civil marriages. It ensures that if details maintained concerning civil marriages change, the details can also be changed, if appropriate, for civil partnership without the requirement of primary legislation.

Amendment agreed to.
Section 7, as amended, agreed to.
Sections 8 to 12, inclusive, agreed to.
NEW SECTION.

I move amendment No. 10:

In page 19, before section 13, to insert the following new section:

13.—Section 37 of the Act of 2004 is amended by inserting "or civil partner" after "relative" wherever it occurs.".

This amendment concerns the notification of a death. The intention of the section is to ensure that a person is obliged to notify a registrar of his or her civil partner's death. The General Registrar has advised that, as published, the amendment to the Civil Registration Act 2004 may be open to an interpretation that where a person is a civil partner, then only that person's civil partner is required to notify the death. It is not intended to preclude any other person from making the notification if the civil partner is, for some reason, unable to do so. The above amendment clarifies this position.

Amendment agreed to.
Section 13 deleted.
Sections 14 and 15 agreed to.
SECTION 16.

I move amendment No. 11:

In page 22, line 7, to delete "or over and" and substitute the following:

"or over. The declarations shall be made and the signature of the civil partnership registration form shall be".

Section 59D(1) of the Civil Registration Act, to be inserted by section 16 of this Bill, prescribes that the intending civil partners must make their declarations in the presence of each other, the registrar and two witnesses in a place open to the public. If one of the civil partners is certified as being too ill to attend at a place open to the public, they may be exempted from this particular aspect of the requirement by an tArd-Chláraitheoir or a superintendent registrar. As drafted, there is potential ambiguity in section 59D(1). It may be interpreted as meaning that they might be exempted from the requirement as to who must be present. This amendment clarifies that the exemption applies only to the public nature of the venue so that declarations and signings of the registration form in the presence of the registrar and witnesses all occur at the same time and place in all cases.

This will be the same as marriage.

Amendment agreed to.

I move amendment No. 12:

In page 22, line 48, to delete "in any other manner" and substitute "in a manner".

Section 59D(6) provides that a registrar is obliged to enter the particulars of a civil partnership in the register in accordance with the instructions of an tArd-Chláraitheoir. The amendment is technical. The registration takes place only once and may only be done in a manner directed by an tArd-Chláraitheoir. Therefore, the question of registering it in any other manner does not arise.

Amendment agreed to.

Amendments Nos. 13 to 15, inclusive, are related and may be discussed together.

I move amendment No. 13:

In page 22, after line 49, to insert the following:

"(7) Where an tArd-Chláraitheoir is satisfied that a duly signed civil partnership registration form has been lost, destroyed or damaged, he or she may direct the appropriate registrar—

(a) to complete another civil partnership registration form and arrange, insofar as it is practicable to do so, for its signature by the persons referred to in subsection (1), and

(b) when it has been so signed, to enter the particulars in relation to the civil partnership specified in the form in the register and to register the civil partnership in a manner as an tArd-Chláraitheoir may direct.”.

This amendment creates a new subsection allowing the reconstitution of a civil partnership registration form and registration of a civil partnership if the original form is lost, destroyed or damaged. This ensures that once a couple has completed the civil partnership registration formality, the status of the relationship will not be prejudiced by such events, which are outside their control. Similar provision is also made concerning the reconstitution of a marriage registration form in section 49(5) of the Civil Registration Act 2004.

Amendment agreed to.

I move amendment No. 14:

In page 23, line 1, to delete "(7) The Minister" and substitute the following:

"(8) The Minister".—

Amendment agreed to.

I move amendment No. 15:

In page 23, line 6, to delete "(8) Where an" and substitute the following:

"(9) Where an".

Amendment agreed to.

I move amendment No. 16:

In page 23, line 21, after "registrar" to insert the following:

"or a place referred to in section 59D(1)(b)”.

Section 59E(1) of the Civil Registration Act, to be inserted by section 16 of the Bill, prescribes that a civil partnership may only be registered at a place and time chosen by the parties to the civil partnership with the agreement of the registrar and, where the registration is to take place at a location other than the office of a registrar, subject also to the approval of the HSE. Amendment No. 16 will ensure that where the civil partners have obtained an exemption from the requirement that a registration take place in a place that is open to the public on the grounds of ill health, the approval of the HSE to the venue agreed with the registrar is not required. In view of the exceptional nature of the exemption, and the probability of some urgency in view of the illness of one of the parties, it is considered that the approval of the venue by the HSE is not warranted.

I wish to inform the committee that, at the request of an tArd-Chlaraitheoir, my Department, in conjunction with the Office of the Attorney General, is examining section 16 with a view to specifying that the declarations referred to in section 59D be made orally.

Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 to 21, inclusive, agreed to.
SECTION 22.

I move amendment No. 17:

In page 29, lines 30 and 31, to delete "registration form.", "and substitute "registration form,".".

This amendment involves a minor typographical correction. Many of these amendments were suggested by the registrar's office.

Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 and 24 agreed to.
SECTION 25.

I move amendment No. 18:

In page 30, lines 16 to 33, to delete paragraph (c).

Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 to 37, inclusive, agreed to.
NEW SECTION.

I move amendment No. 19:

In page 37, before section 38, to insert the following new section:

38.—No stamp duty, 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.".

This amendment relates to the part of the Bill which deals with shared homes. It proposes that a shared home be treated in the same way that the family home is treated under the Family Home Protection Act 1976. As members are aware, that Act encourages the creation of joint tenancies in respect of the family home. It would be important, as a matter of public policy, that the law should encourage the creation of such tenancies in shared homes. This would be done by exempting such transfers from stamp duty and fees payable to the Registry of Deeds and the Land Registry. At the very least, such fees should be set at a nominal level.

I would have thought it entirely appropriate that shared homes should be treated in precisely the same way that family homes are treated under the Family Home Protection Act. It is apt, therefore, that a provision similar to that in the aforementioned Act should be included in the Bill.

Members will be aware that stamp duty is not payable between spouses. It would, therefore, be entirely appropriate that it should not be payable between civil partners. The exemption from stamp duty was introduced subsequent to July 1976. The amendment in my name broadly reflects the provision contained in section 14 of the 1976 Act. I ask the Minister to accept the amendment in the context that it represents an important statement of public policy.

While I can accept the principle behind it, I cannot, for a number of reasons, accept the amendment, as drafted. In the first instance, it refers to the Registry of Deeds, which is now the Property Registration Authority. The amendment reflects the provision in the Family Home Protection Act 1976. It also refers to the family home and, in that context, we must ensure that the terminology used in the Bill is correct.

I agree with the amendment, in principle. It proposes that no fees shall accrue in respect of joint tenancies. I do not believe the intention is to declare that joint tenancies are in place. The same property law would apply.

My Department is examining this matter in consultation with the Office of the Attorney General in order that we might bring forward an suitable amendment on Report Stage. That amendment will reflect, in principle, the fact that fees shall apply on the creation of joint tenancies.

Amendment, by leave, withdrawn.
Sections 38 to 43, inclusive, agreed to.
SECTION 44.
Question proposed: "That section 44 stand part of the Bill."

I am considering introducing an amendment on Report Stage that will provide for a mechanism to allow payment of maintenance ordered under section 44 by means of a lump sum or secured orders.

Question put and agreed to.
Sections 45 to 69, inclusive, agreed to.
SECTION 70.

Amendment No. 21 is consequential on amendment No. 20 and the two may be discussed together by agreement.

I move amendment No. 20:

In page 49, line 12, to delete "subject to subsections (3) to (7),".

This amendment relates to a recommendation which the Incorporated Law Society, in its submission, put to the committee. In essence, what is proposed is designed to avoid what the Incorporated Law Society states is guaranteed uncertainty and litigation. If the amendment is agreed, the share of a surviving partner in a civil partnership will become clear and certain. The position would, therefore, be on a par with that which obtains under existing law in respect of surviving spouses. In the absence of the amendment, there will be uncertainty and, more than that, there will be a positive incentive for people to litigate. The people who are directly involved in litigation in these matters should be aware of that fact.

I accept that it might not be in the interests of the Incorporated Law Society to highlight this aspect of the Bill, as proposed. However, it is clear that under current law a surviving spouse has a right to two thirds of the estate of his or her deceased partner. That is a matter of established and settled law and principle and is, therefore, inviolate. What is captured in the proposals currently contained in the Civil Partnership Bill in respect of partners is, in the words of the Incorporated Law Society, an extraordinary vagueness that will almost invite litigation. This will lead to the courts making law in respect of what should happen regarding the dispersal of the estate of a deceased civil partner. That is not a good way to proceed. The Legislature should be clear in its intent in respect of matters of this nature. To capture the arguments the Minister made on earlier amendments, we should not open up areas of litigation and clog the courts unnecessarily. If he intends to have a parallel system for civil partnership analogous to marriage, the legal conditions on succession should be analogous to marriage and where a deceased spouse without issue has an automatic entitlement, should that not follow as a normal and clear consequence when civil partnership is established on a parallel basis? The argument for amendment No. 21 is the same. Deputy Flanagan and I propose to delete lines 18 to 44 on page 49 and 1 to 9 on page 50. As the Law Society of Ireland indicated, this section will cause uncertainty if it is not amended.

I agree on the basis that the import of the legislation is to provide for civil partnership rights and obligations along the lines of those accorded to marriage. That will involve amending the Succession Act 1965. The section proposes the insertion of a new section in that Act to recognise the civil partnership changes. On intestacy where there is not precise direction, the law should be reflective to civil partners in the same way as it is to married couples. Will the Minister reflect seriously on this issue?

Under the 1965 Act an order will not affect the legal right of the surviving spouse or, if he or she is the mother or father of a child, any devise or request by way of will to the spouse or any share to which he or she may be entitled where there is no will. What Deputy Howlin and I propose is not the same but the import is. I ask the Minister to accept the argument that we need certainty in this regard and the same regime that applies to married couples, including the guarantee of the legal rights shared with the spouse. There is not in civil partnership a guarantee of the minimum one third legal share to the civil partner and that will give rise to a scenario where the courts will be asked to decide. They will do so in a way that may not lead to the certainty that we seek. This is an important matter and I am anxious to hear the Minister's views on the amendments and the Law Society of Ireland's submission, a copy of which I am sure was forwarded to him.

We have taken into account what the Law Society of Ireland had to say. We have examined this carefully in conjunction with the Attorney General's office and we have to keep a close eye on the constitutionality of what we are about here.

It is important to give a brief synopsis of the Bill's provisions regarding succession so that everyone understands what we are trying to do. These provisions have been carefully drafted in consultation with the Attorney General to address concerns on the position of children.

With regard to succession under a will, a surviving civil partner of a testator is given a legal right in his or her estate equivalent to that of a spouse in most circumstances. On testacy — in other words, where there is a will — registered civil partners will have the same entitlement as spouses to a legal right share, that is, one half of the estate if the deceased has a civil partner and no issue and one third of the estate if the deceased has a civil partner and issue.

A child of any deceased may apply under section 117 of the Succession Act 1965 for provision from the estate of the deceased if the deceased has failed to make proper provision during his or her lifetime. The section provides that an order made under that section may not affect the legal right of a surviving spouse. The provisions made where the deceased is a civil partner differ from existing provision for spouses, in that an order made in favour of a child may affect the legal right of a civil partner, but only if the court considers it would be unjust not to make the order.

With regard to intestate succession, a civil partner is entitled to inherit the estate or a share of the estate of an intestate deceased civil partner by the application of rules of intestate distribution in the same way as they apply to spouses, subject to modification for the benefit of issue of the deceased. On 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 issue, the civil partner inherits the entire estate while if the deceased dies leaving a civil partner and issue, the civil partner inherits two thirds of the estate and the remainder is divided between the issue.

On the advice of the Attorney General these rules are modified to provide greater rights to a child of an intestate civil partner. Where a civil partner dies intestate, a child of that civil partner may apply to court for a greater share of the estate. The court may, if it is satisfied that it would be unjust not to make the order, 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 are entitled and the net effect would be to reduce the share of the surviving civil partner.

The proposed amendments would have the effect of making the rules for distribution on intestacy for civil partners precisely the same as those for spouses. To vindicate the constitutional protection of the marital family, the Attorney General has advised that it is essential to provide additional rights for the children of an intestate civil partner. The right of a child of a deceased civil partner to apply to the court for provision out of the estate has been extended to children of a civil partner, whether they are the children of a prior marriage, because it is not considered acceptable to treat children differently under succession law on the basis of whether their parents were married. I cannot accept the amendments for this reason. However, I am considering limiting the scope of the section by amendment on Report Stage in order that the right to apply from the estate of a deceased civil partner who was a parent is confined to their children rather than to their issue and that right would not extend to grandchildren or great grandchildren.

I thank the Minister for addressing the matters but I am not minded to withdraw my amendment. I am anxious to study in detail the comments made by the Minister, with particular reference to the advice given by the Attorney General.

The Minister said he is anxious not to interfere adversely in any way with the constitutional protection of marital families. Similarly, we want to avoid a situation that gives rise not only to uncertainty but to unfairness. In that respect, the situation regarding the step parent's legal share is an important consideration. Under current law, a step parent's legal share is immune from challenge. A similar regime should obtain in respect of a surviving civil partner. I welcome the fact the Minister sees a problem and accepts that what he is doing in the Bill as drafted is not ideal. Therefore, I will not press the amendment. However, I am anxious to engage further on this on Report Stage. I urge the Minister to circulate the note immediately following this meeting, because I am anxious to consider the legal aspects.

The Law Society made a strong submission on these matters which relates to some of the points made by the Minister. With regard to the overarching statement that in order to nod to the Constitution, the conditions laid down with regard to the survivors of a civil partnership — whether the partner or the children — must be of a different order than those of marriage, I do not understand how this would be a constitutional imperative or what advance it would make. The Minister could make a case that he is improving things for children and there might be an argument in favour of that, but one of general application rather than one of application for the children of civil partnerships alone. 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 both the children and the surviving partner of a civil partnership and those of a marriage under the Constitution.

I do not want to read into the record the clear submissions of the Law Society. Section 117 of the Succession Act 1965 has resulted in much case law. The point made in the submission is the same point referred to by Deputy Flanagan. Instead of putting a surviving civil partner in the same position as a step parentvis-à-vis the children of a deceased partner — the Bill is drafted now — the Minister should amend section 117 of the 1965 Act and provide for children to make a claim against a parent’s estate where the parent has failed in his or her moral duty to provide for them. The Law Society states clearly and succinctly in its submission that in the Bill as drafted the succession rights of one civil partner from the other civil partner are less protected and vaguer than those of married couples, both on testacy and intestacy. It goes on to state that this will make it difficult for legal practitioners to advise clients who are civil partners or about to involve themselves in a civil partnership of their respective entitlements from one another on death with any degree of certainty. Uncertainty in legal practice is unlikely to be the intention of the legislature. Additionally, it is well recognised that uncertainty in succession rights breeds litigation. The litigation taken under the existing section 117 of the 1965 Act is evidence of this. However, in that regard a body of case law has been built up and practitioners are well placed now to advise clients.

I welcome the Minister's indication that he will restrict the implications of this section and, therefore, restrict the avenues of litigation that would flow from it. However, he needs to go a step further and bring it into an analogous situation with survival spouses. I do not see it does any constitutional damage to do that. It would give clarity to those who will involve themselves in civil partnerships, would unclog the courts and save much hardship and cost in the future from litigation.

I am not saying that what we have provided for in this Bill will be certain. I cannot say there will not be additional litigation in this regard. With due respect to that august body, the Law Society, if we were able to provide certainty in every piece of legislation we provide, the society and its members would be redundant. I have no doubt the society and its members will always find ways, on the basis of looking after their clients, to pick holes in legislation. What we are about here is, as a matter of policy, to endeavour to give as many rights as possible to civil partners and people connected with civil partners, without at any stage crossing the line on the constitutional imperative.

There is a danger that children of a marital family could be disadvantaged by the passing of this Bill and this is something of which we must be careful. That is the reason we have done it on this basis. We are trying to keep a balance and provide additional rights. It is open for those children, it is not imperative. It is a matter of applying. They may decide not to apply. My experience during my time of practice is that the number of times children of ordinary heterosexual married couples have made applications under section 117 for proper provision has been relatively small. What we are talking about here is a further subset — a very small subset I would guess — given the nature of the issue with which this deals. It will be a small number of cases. Therefore, I cannot agree there will be a massive increase in litigation. At the same time, I cannot say there will not be an increase in litigation in this respect as a result of the passing of the Bill. As a matter of public policy, we have tried to address the balance between the constitutional imperative and providing as many rights as possible for people in same sex relationships. It is understood and agreed by political parties in the House that we should move on this issue. The way we have done it, having considered the issue further following publication of the legislation, is to restrict it to the children of a parent, which will make it even less likely that there will be litigation in this respect.

I accept the point made by the Minister and there is some merit in what he says. However, we should provide as much clarity as possible. We talk about devolving rights or providing rights, not that they would be given out as benefits. People have rights. If we recognise that people in same sex unions have a parallel relationship to that which we traditionally understand to be a marriage, we should ensure as much certainty with regard to the fundamentals of that with regard to succession after death and where children stand in that regard. If we enact the section unamended, we will not be doing our best in that regard. We will be putting uncertainty into the Statute Book. It will be a field day for lawyers. People will enter into relationships in an uncertain manner. I will take on board what the Minister has said about the need to protect the children of a previous marriage. I had probably not given enough consideration to the consequences of this legislation on such people. I will reflect further on it. In general, we can do better than the section that is currently proposed. I will withdraw amendment No. 20 and submit another version of it on Report Stage. I hope the Minister will reflect further on the need to narrow the grounds on which uncertainty will prevail in this section and grounds for litigation will continue.

Deputy Charles Flanagan asked if we would circulate the note. I will endeavour to write to the two Deputies to outline, as much as we can, a little bit of an extended basis for this. We have to be careful to ensure this Bill stands up constitutionally. If we venture too far towards placing the children of a prior marital arrangement at a disadvantage, there is a danger that the disadvantage would be such that it would potentially lead to a constitutional challenge.

Amendment, by leave, withdrawn.

I move amendment No. 21:

In page 49, to delete lines 18 to 44 and in page 50, to delete lines 1 to 9.

On a procedural matter, I cannot stay here after 12.45 p.m. Can we set that as a finishing time?

I thought we would finish after two hours.

I am in your hands.

If we set ourselves an objective of concluding by 12.45 p.m., we might achieve it.

I am not sure.

We will proceed for the moment.

I was due to take Question Time in the House today, but it has been postponed until tomorrow.

Amendment, by leave, withdrawn.
Section 70 agreed to.
Sections 71 to 77, inclusive, agreed to.
SECTION 78.

As amendments Nos. 22 and 23 are related, they may be discussed together by agreement.

I move amendment No. 22:

In page 50, line 37, to delete "Subject to section 117(3A),".

The Law Society recommended in the submission it made to all of us that this amendment be made to avoid the litigation and uncertainty that it sees as almost guaranteed. My understanding is that if the amendment is made, the share of which the surviving civil partner can be certain will be on a par with that given to a surviving spouse.

The argument in favour of these amendments is broadly similar to that made in support of earlier amendments. It is important that we do not introduce legislation that invites a mountain of litigation. We need a further element of clarity on the legal right share of the civil partner. That is not currently in the Bill, as drafted. I am not sure if the Minister has anything new or fresh to say on these amendments. Has he anything to add to his comments on earlier amendments on similar lines?

The Attorney General has advised that it is essential to provide additional rights to the children of a civil partner who dies leaving a will, in order to ensure that in such cases the constitutional protection of the marital family is vindicated. Accordingly, in order to achieve a balance between this constitutional imperative and the succession rights of a civil partner, section 83 of the Bill is framed to ensure that where a child of a civil partner applies under section 117 of the Succession Act 1965 for provision from the deceased parent's estate, any order made "shall not affect the legal right of a surviving civil partner unless the court, after consideration of all the circumstances, including the testator's financial circumstances and his or her obligations to the surviving civil partner, is of the opinion that it would be unjust not to make the order". This is a high threshold for making an order that would reduce the surviving partner's share and provide significant protection to the surviving partner.

The effect of amendment No. 22 — we think the decision to oppose section 83 of the Bill might be a mistake — would be highly significant. It would leave wholly unprotected the surviving partner's share in the estate of their deceased partner, if a child or children of the deceased were to make an application under section 117 of the 1965 Act for provision from the estate of his or her parent. The amendment would do so by removing any restriction on the court's discretion to allocate or reallocate the share of the civil partner. The effect of amendments Nos. 22 and 23, taken together, would leave the surviving civil partner's share in the estate of their deceased partner as strongly protected as that of a spouse if the child or children of the deceased were to make an application for provision under section 117. This would risk upsetting the fine constitutional balance of the Bill. The provision in the Bill is carefully constructed to ensure the rights of children who may be children of a prior 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.

The Law Society stated in its submission that section 117 of the Succession Act 1965 allows a child to seek a portion of the estate of a deceased parent in certain circumstances, but not at the expense of the legal right share of the child's own surviving parent, where there is a surviving parent. In essence, a section 117 claim cannot overturn any bequest or devise in favour of the surviving parent's own legal entitlement. Why can the same pattern not be afforded to the survivor of a civil partnership? Is it the case that advice has been received from the Attorney General? I understand the point that there might be a constitutional issue with regard to children, which was made in the context of amendments Nos. 20 and 21. I think we can devise a form of words that protects those children while giving parallel rights to surviving civil partners. This area should not be subject to the messiness of lack of clarity, endless legal wrangling and high costs. It is often the case that at the end of succession disputes, nothing is left once the lawyers have had their several days in court.

The strong advice of the Attorney General is that this measure is required. Section 117(3) of the Succession Act 1965 states:

An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.

That is what I just read.

Yes, what we are endeavouring to do is replicate that in relation to a civil partner. The effect of removing the discretion of the court would be to leave the surviving civil partner's estate less protected. For this reason, I do not see the logic of the amendment. Removing the discretion of the court would disadvantage civil partners and create a difference between a civil partner and spouse.

The Minister is not replicating section 117 in section 83(3)(a).

That is correct. While it is not fully replicated, the same principle applies.

The Minister is leaving the matter to the courts by including the provision that the court, after consideration of all the circumstances, including the testator's financial circumstances and his or her obligations to the surviving civil partners, is of the opinion that it would be unjust to make an order. This amounts to an invitation to civil partners to take a case to court.

As I stated, we are setting a high threshold by providing that the court may decide that it would be unjust not to make the order.

Is that a high threshold?

It is when one takes into account the various circumstances listed.

Amendment, by leave, withdrawn.
Section 78 agreed to.
Sections 79 to 82, inclusive, agreed to.
Amendment No. 23 not moved.
Question, "That section 83 stand part of the Bill", put and declared carried.
Sections 84 to 96, inclusive, agreed to.
SECTION 97.
Question proposed: "That section 97 be deleted."

I propose to delete the section and make a number of amendments to tidy up a number of sections.

Will the Minister outline his reasons for doing so?

Amendment No. 30 proposes to insert a new section which will replace section 97. The purpose is to apply the rules of the Pensions Act 1990 to pension adjustment orders made under the Bill. Minor citation errors in the Bill are also corrected. The revised section 146 applies to pension adjustment orders for civil partners and cohabitants. Subsection (1) applies any regulations made under section 5(4) of the Pensions Act 1990, which specifies guidelines for the purpose of pension adjustment orders under the Family Law Acts, to pension adjustment orders made under the Civil Partnership Bill.

Subsection (2) gives the Pensions Board the same responsibility to issue guidelines to pension fund trustees relating to pension adjustment orders under the Bill as it currently has in relation to pension adjustment orders made under Family Law Acts. The deletion of the section and amendments Nos. 24 and 30 will consolidate a number of sections into a new section.

We will have to trust the Minister on this matter.

Question put and agreed to.
SECTION 98.

Amendments Nos. 24 and 30 are related and will be discussed together.

I move amendment No. 24:

In page 54, lines 37 to 46 and in page 55, lines 1 and 2, to delete paragraph (a).

As I indicated when proposing to delete section 97, the purpose of these measures is to consolidate the provisions of section 97, section 98 paragraph (a) and section 146.

Amendment agreed to.
Section 98, as amended, agreed to.
Sections 99 to 107, inclusive, agreed to.
SECTION 108.

Amendments Nos. 25 and 26 are related and will be discussed together.

I move amendment No. 25:

In page 61, paragraph (a), line 30, to delete “and” and to substitute the following:

"(b) there is no reasonable prospect of reconciliation between the civil partners,”.

In contrast with the legislation on divorce, the Bill does not require that the court must be satisfied that there is not a reasonable prospect of reconciliation between the partners. In the context of earlier deliberation and discussion, we are anxious by way of public policy to ensure the status of civil partnership. If one examines the content of the Judicial Separation and Family Law Reform Act 1989 and subsequent legislation on divorce, these Acts include specific sections providing safeguards to ensure alternatives are available to judicial separation or divorce. There are requirements on legal practitioners to place certain options before the parties prior to embarking on legal proceedings. What we have done in the judicial separation and divorce legislation should be mirrored or replicated in the Bill before us.

It is important that where there is a possibility of a reconciliation, certain measures should be taken without recourse to court proceedings or without embarking on a process that will ultimately lead to an order of dissolution. Included in the amendments are proposals that legal practitioners or advisers be mandated to provide information as to alternatives and names and addresses of suitably qualified persons. They create a possibility of engaging in mediation of a type that will perhaps give rise to a more harmonious dissolution than the current adversarial option. In the context of public policy formulation, we should reflect options that the law has given in the cases of heterosexual couples.

Section 108 establishes the grounds for a court to grant a decree of dissolution to civil partners. The grounds are that they have been living apart for at least two of the last three years and that proper provision will be made for each of them.

Amendment No. 25 would insert an additional factor, identical to one of the grounds for divorce set out in the Constitution and section 5 of the Family Law (Divorce) Act 1996 which followed the constitutional referendum. Amendment No. 26 would require the civil partners' legal advisers to discuss the possibility of reconciliation or mediation with them, similar to the provisions in section 6(2)(a) and (b) of the divorce Act. The amendments would bring civil partnership closer to marriage and risk upsetting the constitutional balance. The Attorney General has advised specifically in this regard. His advice is that, in considering a decree of dissolution, unlike the position on marriage and divorce, the courts should not be required to consider the prospect of reconciliation. There is no constitutional imperative to require the courts to do this. Equally, there is no imperative to obligate the civil partners’ legal advisers to discuss reconciliation or mediation.

Given the strong advice provided on maintaining key distinctions between marriage and civil partnership, I cannot accept the amendments. I accept that it is right and proper for legal advisers to advise clients to discuss the possibility of reconciliation or mediation but including it in a Bill potentially might run the risk of attracting a constitutional challenge which would be counterproductive to the purposes of the Bill. We are dealing with the Bill having regard to the constraint of the constitutional imperative to recognise the special protection given to marriage.

Not only do I find this surprising on the part of the Attorney General, I find it disappointing. In an attempt to introduce safeguards in a Bill to ensure awareness on the part of a civil partner at times of weakness, difficulty and trauma, it should be incumbent on us, as legislators, to ensure a certain level of awareness of alternatives to a decree of dissolution in the form of advices. I am, therefore, very surprised at the advice of the Attorney General. I would like the Minister to write to me and let me know as much as he can about the disposition of the Attorney General in this regard. The Bill will facilitate certain rights and corresponding obligations of civil partners. To my mind, it is appropriate that when there are difficulties prior to a decree of dissolution, we should make every effort to ensure there is advice available on the alternatives available or courses of action open to the partners that might not be immediately recognisable by them. This should be by way of assistance in the form of a safeguard, rather than anything else.

We are not disagreeing on the necessity for legal advisers to advise clients on the possibility of reconciliation and mediation. We are talking about specifically mandating under statute. It is constitutionally mandated in the case of the dissolution of marriage under Article 41.3.2.ii where there is no reasonable prospect of reconciliation between the spouses. It goes as far as to refer to the irretrievable breakdown of marriage. The requirement to investigate and inquire into the prospects for reconciliation is not made for the courts when dealing with judicial separation.

I think they are.

They are not mandated from a constitutional point of view——

They are from a legal point of view.

——in the context of the dissolution of marriage. The advice is that we are to maintain a distinction between marriage and civil partnership; this is one of the areas in which we need that distinction. We are erring on the side of caution to ensure the Bill will ultimately be constitutional.

I do not think I will be able to convince the Minister who is trenchant in his view, which is regrettable.

Amendment, by leave, withdrawn.
Section 108 agreed to.
Amendment No. 26 not moved.
Sections 109 to 126, inclusive, agreed to.
SECTION 127.

I move amendment No. 27:

In page 74, subsection (2)(d), lines 38 and 39, to delete “after registration of their civil partnership”.

We are dealing in this amendment with maintenance orders. Section 127 sets out the various options and the statutory factors that a court must take into account when deciding on the financial share-out. The factors indicated are in line with the terms of our divorce legislation. Section 16(2)(d) of the Family Law Act 1995 makes specific reference to the length of time civil partners must have lived with each other after the registration of the civil partnership. It is the period after registration that perhaps gives rise to the difficulty. We are contrasting a different set of circumstances in this instance than that which obtains under the divorce legislation.

There will be cases in which gay couples will have lived together for long periods prior to registration, yet there are provisions relating to the granting of certain orders. The court will be required to look at the period after the registration of the civil partnership, which seems unduly restrictive. Why is it necessary to cite specifically the period after the registration of the partnership as though, by implication, time spent together prior to the registration of a civil partnership is not deemed admissible? If that is the case, we have a problem and I ask the Minister to review it.

I support Deputy Flanagan on this issue. Since we are instituting civil partnership for the first time, a legal status for which groups have fought and campaigned for decades, it seems odd that we should stipulate that for people who cannot currently legally register their partnership but have been in a loving and caring relationship for a protracted period, the clock will only start in terms of recognition of their relationship from the date that we make legal provision for such recognition. Regardless of how long such couples are together, if they were unfortunate enough not to seek an order, the longevity of the relationship would not be taken into account. While I expect it will be taken into account in practice, why should that not be clearly stated in the legislation?

Section 127 sets out factors the court must consider in deciding whether to make a range of orders on dissolution of a civil partnership, including maintenance orders, property or pension adjustment orders, and various ancillary relief orders. Among those factors are the duration of the civil partnership and the length of time during which the civil partners lived together after registration of the partnership. The amendment would change the second factor to the length of time during which the civil partners lived together pre and post-registration.

The purpose of subsection 127(2)(d) is to require the court to have particular regard to the length of cohabitation after registration, but it does not entirely preclude the court from looking at the entire circumstances. Whether this period is a relatively short time or a relatively long time should clearly be a matter to be taken into account by the court when deciding on financial and property orders on the dissolution of a civil partnership. In other words, every case should determine its own merits. The court is not required by the Bill to take particular account of pre-registration cohabitation in making the orders on civil partnership dissolution, but nor is it prevented from considering it if it deems it appropriate to do so. There is a clear difference between a couple who cohabit even for a long time and a couple who expressly make formal, public and legal commitments to each other through marriage and civil partnership. The remedies provided in law on dissolution should particularly reflect that commitment.

I understand the point the Deputies make and I will undertake to review it on Report Stage, but I am confident that the existing provisions do not preclude the court from looking at all the circumstances, including pre-registration factors.

On balance, I am inclined to accept what the Minister has said provided that he can be absolutely certain that subsection (2)(d) does not limit or restrict the court to addressing cohabitation after registration. The Minister seems to accept that if that were the case it would be unduly restrictive, unnecessary and even dangerous. I appreciate the Minister’s indication that the subsection as drafted is not unduly restrictive in that manner, but I would be grateful if he would review the issue before Report Stage. I withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

Amendments Nos. 28 and 29 are related and may be discussed together by agreement.

I move amendment No. 28:

In page 74, subsection (2)(f), line 47, after “home” to insert the following:

"or caring for any child whom either of the civil partners owes an obligation of support".

One of the most striking and disappointing aspects of this legislation is that it does not refer to any satisfactory extent to the position of children. While I accept this is landmark and ground-breaking legislation, it is nevertheless disappointing that no attempt is made to address situations that will give rise to hardship and legal difficulties into the future. Amendments Nos. 28 and 29 are designed to address some of those difficulties. I stress the word "some" because I accept that we are not in a position to deal satisfactorily in this legislation with all of these matters as some of us would wish.

Subsection 127(2)(l) contains one of the few references to children, stipulating that the court will be in a position to take into account the rights of “any child to whom either of the civil partners owes an obligation of support”. This means the court will take into account the rights of, for example, the natural child of a lesbian mother when deciding what provision should be made for that mother’s civil partner in the context of a dissolution. I referred on Second Stage to a particular case in my constituency of which the Minister is aware and which could well be only one of many. That situation has given rise to great hardship and suffering for of the family concerned. I hoped we would be in a position to address it in this legislation.

Paragraphs (2)(f) and (2)(g) are in contrast to the wording used in the Judicial Separation and Family Law Reform Act 1989 and the divorce legislation where there is reference not only to the work done in looking after the home but also in caring for the family. It is regrettable that this phraseology is not included in the Bill. My amendments seek to address the issue of children to whom either of the civil partners owes an obligation of support and assistance. I hope the Minister will accept the spirit of these proposals. If there is a difficulty with the letter, that is something we can thrash out.

I am in sympathy with the case outlined by Deputy Flanagan. The amplification of the criteria to be determined by a court in these orders should certainly include the welfare of children, but this is a very narrow debating area for those rights. I thought long and hard about how to achieve my objectives and those of the Labour Party in regard to extending full rights to new civil partnership couples of the same sex in regard to adoption and every other right. That work must be achieved but probably by another legislative vehicle.

We will be presented before the end of the year with a referendum on children's rights. The cross-party agreement in regard to children's rights has altered in that we are moving away from the notion that we mediate children's rights through others, whether that be the family — under Article 41 — or through the State or any agency. We do not do so because children have rights inherent to themselves and this certainly is the basis of thinking. I hope there will be legislation in consequence of the constitutional amendment. This certainly will be the case in respect of updating adoption law because clear changes to adoption law will be consequent on the amendment, should it be passed by the people, which, for the first time, will allow the children of married couples to be adopted. The best way to approach this issue will be through a child-centred examination of the rights of the child and of where the child has the right to be, which is the best interests of the child being paramount. While I am in sympathy with the narrow insertion of this principle in a highly restricted fashion, in so far as it represents the presentation of these matters, this issue must be revisited in a much more comprehensive way when the right of same-sex couples to have civil partnerships has been established. We then will need to go further and ensure that children's rights to belong to such families as is appropriate and right for their best interests, also is addressed in due course.

I thank the Deputies for their references and comments. The Department looked hard and seriously as this issue when preparing this Bill and the view as expressed by Deputy Howlin was somewhat similar to mine. I refer in particular to his reference to the effect that the acquisition of rights through other citizens is not something with which we should continue. The right way to adopt changes regarding the protection of children is to give them additional rights in their own right. This is as has been indicated through constitutional change, which I hope will be brought forward sooner rather than later.

I have to hand a long note that should be put on record for the sake of further deliberation at another time on this aspect and the reason this Bill deals with it in this fashion. Obviously, it is clearly established in our Constitution that the family is based on a marriage between a man and a woman. This has been determined on many occasions by the Supreme Court. The European Convention on Human Rights makes provision for family rights of people who are not married but the convention is not generally part of our domestic law and is not directly applicable in this case. In any event, the European Court of Human Rights has not determined that same-sex partners fall under the definition of family life under Article 8. This also appears to be the conclusion reached by English courts.

The Supreme Court made clear in the famous case of the State (Nicolaou)v. An Bord Uchtála that:

For the State to award equal constitutional protection to the family founded on marriage and the ‘family' founded on extra marital union would in effect be a disregard of the pledge which the State gives in Article 41.3.1 to guard with special care the institution of marriage.

There already are extensive provisions in the law in respect of, for example, the position of the unmarried father. Under the law as it stands, namely, section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, an unmarried father may apply to the court to be appointed a guardian of his child. Alternatively, where there is agreement between the parents, they can make a statutory declaration under section 2(4) of the Guardianship of Infants Act, as inserted by section 4 of the Children Act 1997, conferring on the father the status of guardian. Under section 11 of the 1964 Act, a guardian may apply to the court for its direction on any question affecting the welfare of the child, including directions as to custody and access. In addition, the section provides that the unmarried father of a child, even if he is not a guardian, may apply to the court for orders on custody and access. Section 3 of the Act provides that, in deciding on an application relating to the custody, guardianship or upbringing of a child, the court shall regard the welfare of the child as the first and paramount consideration.

Where appropriate and practicable, the court may also take into account the child's wishes in the matter, having regard to the age and understanding of the child. In addition, the law now places an emphasis in terms of recognising the rights of the child to the society of both his or her father and mother. Section 11D of the 1964 Act, as inserted by the Children Act 1997, obliges the court in proceedings relating to the welfare of a child to consider whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.

These legislative provisions are complex. They permit the court in cases of disagreement to decide on arrangements for the child's care and upbringing, having regard to the child's best interests. 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, the Government concluded it would not be appropriate that the Civil Partnership Bill should develop principles regarding children that would have implications wider than those in respect of same-sex partners. Apart from constitutional difficulties, issues which arise pertaining 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 the implications such changes might have for children and for those who might be affected by such changes.

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 partnership with the special recognition that is accorded under the Constitution to persons of the opposite sex who marry. While we need to respect the entitlement to equality that same-sex partners enjoy under Article 40.1 of the Constitution, we also need to respect the special protection that Article 41 gives to marriage. As I have stated many times, the Bill has been carefully drafted to balance any potential conflict between these rights. In particular, the Attorney General has advised that constitutional difficulties arise in respect of children in civil partnerships. His advice is that giving a family unit that is not based on marriage a constitution, that is, two adults who are co-parents of children, and authority, that is, full parental powers, rights and duties to adopt, which are substantially identical to that of the family would probably be viewed as reneging on the guarantee to protect the family.

There is already an extensive body of law regarding the welfare of children in areas such as guardianship, maintenance, access and custody and many of these issues are faced by couples whether married or not. The suggestion has been made that the Bill should make express provision for the rights of same-sex partners in respect of children. In the recent case of J.McD.v. P.L. and B.M. of 10 December 2009, the Supreme Court makes it clear that in the context of any debate about rights regarding children that it is the welfare of the child as the first and paramount consideration which is central to the determination of issues, as section 3 of the Guardianship of Infants Act 1964 provides. The judgment went on to state:

the mere fact that the law could be said to be silent as regards a specific situation does not necessarily mean that the situation is unaffected by the law or the Constitution. Silence of the law may speak volumes for the legal status to be accorded or not to be accorded to a particular subject matter or situation.

It was in this case that the Supreme Court reconfirmed that the family is defined as the family based on the marriage of a man and a woman and that there is no institution of a de facto family deriving family rights or protection under the Constitution or the law. Equally the court found that any such rights, where they may exist under Article 8 of the European Convention on Human Rights, have at present no direct effect under our law. This case also highlighted the difficulties involved in situations of a party other than a natural parent. The judgment stated as follows:

That the situation of a party other than a natural parent, and in particular such a person's relationship with the child, should be a material factor in determining the custody and associated rights of the child is not unique to the situation which has arisen in this case. It may also arise in a variety of other situations such as a household consisting of a mother and child and one, or both, parents or where a child has been raised for a number of years by grandparents or foster parents. In the end these often so difficult situations have to be determined by the best interests of the child being considered paramount and, subject to that, with due regard to constitutional and other rights in law vested in other parties.

Given the complexity of legal relationships between children and their parents, a comprehensive review of the law in this area has been under way by the Law Reform Commission, LRC. In due course, this will also help to inform policy decisions on the rights in general of 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. The commission's final report and recommendations are expected later this year. However, I might add that the paper did not make specific recommendations on the position of same-sex couples or civil partners. In any event, it is not intended that the Civil Partnership Bill should deal with what is obviously a complex situation and one with which other jurisdictions have experienced difficulties with or without the types of constraint posed by our Constitution.

Putting all of this on record is important, as it indicates the Government's approach to the protection of children. It would be wrong to suggest that the Bill is silent on this matter. Section 117(2)(l) expressly mandates the court in making financial and property orders to consider the rights of people other than either of the civil partners, specifically including any child to whom either of the civil partners owes an obligation of support. This is an important provision on the protection of children. The rights of the child to financial support by and the care of his or her parent must be considered before any financial or property order is made in favour of a civil partner under this Bill.

While we must always maintain the fine balance between the constitutional imperatives of equality on one side and the special recognition of marriage on the other, it is important to point out that aspects of taking care of children, specifically the children of same-sex partners and depending on those children's circumstances, would be better dealt with in the context of amending existing legislation, particularly the proposed constitutional referendum.

I thank the Minister for his reply. The amendment is narrow and not for one moment would I underestimate the complexity of what we are dealing with, but this discussion reflects a gap in the legislation. We would not have had the benefit of the Minister's opinions in this regard if not for the fact that the amendments were tabled.

This is a question of the welfare of children. Before we can deal with it, we must recognise and acknowledge their status, which is not done to a sufficient extent under the legislation. The Minister referred to a thorough review and we hope that the constitutional referendum on children's rights will be held later this year. I have no difficulty in waiting until after the referendum, but the Minister knows that no date has been set for it. The Government has not even guaranteed that it will be this year. I hope it will, as do the majority of people.

I will not press the amendment, as I accept that this provision is part of a larger complex issue. However, waiting for courts to advance laws in this regard is less than sufficient. Waiting for them to direct or advise us to do certain acts does not make for good, sound law. However, it has often been the case where the matter of children is concerned.

I will withdraw the amendment and I thank the Minister for his detailed response. I ask him to provide me with a copy of it at an early date. I was merely seeking to acknowledge in the legislation that we should place the welfare of children to the fore. However, we must recognise and acknowledge them in the first instance and facilitate a maintenance order that could be favourably granted in difficult cases where there is a lack of legal certainty. The earlier we deal with the overall issues, the better. I acknowledge the LRC's report and I hope the Minister will provide us with a date for the referendum.

I would not want it to go out that we are waiting for the courts to make decisions. We are not. The imperative is for us to change the law if required.

It would be wrong to suggest there is no existing protection for the children of same-sex partners. The Bill provides for their protection in terms of financial orders. There is agreement on all sides of the House that it would be preferable to deal with this matter in a more comprehensive way flowing from the proposed amendment.

The matter is complex and the committee has been considering the three relevant major aspects for a long time. I assure the Deputy that there is no lack of speed on the Government's part in holding the referendum and introducing any legislation flowing from that, but this is a particularly complex area.

Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
Section 127 agreed to.

I thank the committee members, the Minister and his staff for their co-operation.

Progress reported; Committee to sit again.
The select committee adjourned at 1 p.m. until 10 a.m. on Tuesday, 27 May 2010.