Civil Partnership Bill – The Cohabitation Provisions

As a supplement to Fiona’s timely post on the Civil Partnership Bill 2009 and its implications for same-sex couples, I wanted to expand on the Bill’s undernourished second child; its cohabitation provisions. These are of relevance both to same-sex and opposite-sex couples.  The most important element of the  Bill is Part 15;  a hybrid redress-contract ancillary relief regime which will apply to the breakdown of relationships between ‘qualified cohabitants’ (those who have been living together for 3 years; 2 where they have a child together).  The legislation takes its cue, by and large, from the Law Reform Commission’s Report The  Rights and Duties of Cohabitees. The contract element concerns the proposed statutory recognition of property agreements between cohabitants. The cohabitation agreement provisions represent an important move towards recognition of ‘private ordering’ in Irish family law. Cohabitation agreements will be enforceable subject to certain limited formalities.  The court may set aside a provision in an agreement only in exceptional circumstances where its enforceability would cause serious injustice. There is, as yet, no comparable provision for a married couple to order their financial and property affairs before or in the course of marriage: The Report of the Study Group on Pre-nuptial Agreements is instructive here. It would be very interesting to see how the courts – which have by and large jealously guarded their wide powers to redistribute assets and income upon divorce or judicial separation  – would respond to cohabitation agreements.  However, the primary aim of the cohabitants’ scheme is to recognise the financial interdependence of partners in a non-marital couple by empowering a court, in the exercise of its discretion, to make any of a range of  orders to provide for a financially vulnerable ex-partner when a relationship ends.  This is the redress element.

The human rights implications are set out in the IHRC’s excellent 2006 Report; The Rights of De Facto Couples and many were also raised in the All Party Oireachtas Committee on the Constitution Hearings on Family Issues in 2005. In short, this legislation represents a significant expansion of the boundaries of  ‘legitimate family forms’ at Irish law beyond that founded on marriage and brings  our law much closer to the hospitable vision of respect for private and family life embodied in the ECtHR Article 8 jurisprudence.  Of course, it falls far short of the constitutional reform – recommended by the IHRC – which would place unmarried couples on firmer ground at the basic level of Irish law. Insofar as it represents a move towards recognition of the non-marital family, the Bill has attracted criticism from the Catholic Church, which sees it as establishing parity between unmarried and married  heterosexual couples.

There are some points of difficulty with the Bill. I blogged on some of the deficiencies from a children’s rights perspective here earlier this year.  Prof. John Mee of the Law School at University College Cork  has criticised the redress aspects of Part 15 for giving an inadequate account of parties’ intentions.  At a Law Society conference in September he said that:

it was possible for a person to become a cohabitee without realising it. The Bill did not state how it would be established when the cohabitation started. Further, to have a valid cohabitation agreement, the couple must each have received independent legal advice…It is very unlikely that many people will make [cohabitation agreements].

A central question here seems to be whether the new legislative scheme is extending recognition to cohabitants in acknowledgment of the private autonomy-based function of relationship formation or  is adopting a more paternalist approach; a protective stance in respect of the distributive function of  de facto relationships. The latter would seem to be the better view.

A key point of interest emerges along the autonomy/protection dichotomy if we approach the regime from a ‘cultural difference’ perspective. What might be the potential interactions between the new legislation and marriages and partnerships between immigrants to Ireland. Parties to customary marriages which are not recognised in Irish law, and people who – for religious or other reasons – undergo a marriage ceremony which does not comply with the requirements of the Civil Registration Act, 2004 will, in many circumstances, fall within the ambit of the new cohabitation regime. On the Second Reading of the UK’s Cohabitation Bill (which, in this respect, is very close in substance to the proposed Irish scheme) in the House of Lords earlier this year, Lord Lester of Herne Hill QC said:

I also greatly welcome the support of the Southall Black Sisters. They believe that the Bill will have particularly important implications for women of ethnic minorities, especially Muslim women. It will address the problem of those women who, having been party to a religious wedding ceremony, believe that they have the civil rights of a married person. It is only when their relationship breaks up that they find that their marriage was never registered and that they have no rights. The Bill would also deter men from having polygamous marriages, which are illegal under English law.

 In related news, I having been finishing off a working paper on the possible interactions between Muslim divorce practices and Irish family law over the weekend, and will post an executive summary here for your information – and comments –  soon.