Civil Partnership Bill Second Stage Debate Highlights
December 3 saw the second stage debate on the Civil Partnership Bill 2009, which will establish new schemes for the legal recognition of co-habiting couples and same-sex civil partnerships. The Bill, in Minister Dermot Ahern’s words:
creates for the first time in Irish law a scheme under which a same sex couple can formally declare their allegiance to each other, register their partnership under new provisions in the Civil Registration Act 2004, commit themselves to a range of duties and responsibilities and at the same time be subject under new law to a series of protections in the course of their partnership in the event of a failure of either party to maintain the other and in the event of disputes between them as to ownership of property.
Such a couple will have additional protections in the event of violence between them in their home and new rights to succeed to the property of each other are also being established. In the event of a dissolution of the partnership, there will be considerable protections in place for a dependent partner, where necessary, by way of power to the court to order maintenance, to order financial relief by way of lump sum payment, to redistribute the ownership of property between them and to provide for transfer of rights between them under any pension scheme of which either is a member. Where a person dies after dissolution of a civil partnership, the court may order provision from the estate of the deceased for his or her surviving former partner…
…The Bill will substantially change the legal landscape for same-sex couples. As well as dealing with many vital and pressing legal difficulties experienced by same-sex couples, including maintenance, pension provision, protection of tenancies, their shared home and succession, it will also address very practical matters for same-sex partners. The Bill ensures they will be always entitled to visit if one is hospitalised, can be treated as next-of-kin and on the death of a partner are entitled to notify the death and arrange the funeral. Gay and lesbian organisations deal daily with problems about which most of us never have to think but which routinely arise for gay couples or a surviving partner. These can range from the inability to access State benefits like the carer’s allowance to care for a seriously ill partner, to a man’s additional grief that his partner is recorded on his death certificate as being single, an official denial of thirty years of life together….
[The Bill will also] provide protection in the law to long-term cohabiting couples and a safety net for an economically dependent cohabitant at the end of the relationship on break-up or on death.
On break-up, a financially dependent cohabitant may apply to court for maintenance from the other cohabitant, possibly for a pension adjustment order or a property adjustment order. If the relationship ends on death, a dependent cohabitant may apply to court for provision from the estate of the deceased if, as often happens, no provision is made for the surviving cohabitant. The courts will have a substantial discretion in considering such applications.
The Bill recognises the right and capacity of couples to freely choose the legal form their personal relationships will take and the legal consequences of this choice. Some couples will prefer to opt out of the redress scheme. We should respect their autonomy to choose not to regulate their relationships. The Bill addresses this by providing for the legal recognition of cohabitants’ agreements made by couples regulating their joint property or financial affairs. At the same time, it is important to achieve a balance between interfering in personal autonomy and protecting vulnerable persons. The Bill strikes that balance by providing that the courts in exceptional circumstances can vary or set aside a cohabitants’ agreement where its enforcement would cause serious injustice.
You can read our previous coverage of the Bill here. Although the Bill will have serious implications for tax and social welfare, these reforms will be part of separate future Bills.
The archive of Maman Poulet’s liveblog, with a wealth of links and press coverage included, is here. The Bill has been welcomed – albeit with some reservations – by a number of equality advocates, including GLEN, the ICCL and the Equality Authority.
Here are some of the outstanding features of Thursday’s debate:
To those who oppose the Bill, of whom there are many for a variety of reasons, and to those who have written to me outlining their objections, I would say that we live in a democracy, not a theocracy. As democrats and Members of Parliament, we must recognise and protect the rights of all citizens, not just some. We cannot have a tyranny of the majority. As legislators, we are charged with the responsibility of looking after our citizens. This Bill is a part of that process…“Secular” is not a dirty word, as some have tried to assert. Secular, democratic measures have given women equal rights and blown the lid off decades of sexual abuse by religious congregations by conducting important investigations, the most recent of which was the Murphy report of this week. We do not inhabit a flat Earth. We exist in a diverse society where minorities make vital, welcome contributions. As Prime Minister Zapatero, speaking in the Spanish Parliament, stated before the final vote introducing gay marriage in 2005, “…a decent society is one which does not humiliate its members”. I agree with those sentiments and I believe they are appropriate to this Bill. I welcome the legislation and look forward to dealing with its technical, detailed aspects on Committee Stage, perhaps in the new year.
‘Deputies will appreciate that a Bill of this kind has had to be carefully prepared with the provisions of our Constitution. Were the Bill to go beyond what is allowed under the Constitution, it would fundamentally undermine the balance it attempts to achieve…The Attorney General has advised in particular that to comply with the Constitution, it is necessary to differentiate the recognition being accorded to same-sex couples who register their partnership with the special recognition accorded under the Constitution to persons of the opposite sex who marry. While there is the need to respect the entitlement to equality that same-sex partners enjoy under Article 40.1 of the Constitution, there is also the need to respect the special protection which Article 41 gives to marriage. The Bill, therefore, has been carefully framed to balance any potential conflict between these two rights.
Marriage is a civil status, created and defined by the law. To it many legal consequences and some benefits attach. Civil partnership is a status, separate but equal, which goes part of the way, but risks leaving neither side very happy. The same-sex partners are then denied true equality which they know is now recognised in other civilised jurisdictions. The conservative traditionalists complain that civil partnership “mimics” marriage and therefore, in a mysterious but unexplained way, damages that institution for heterosexual couples who are now staying away from it in droves.
[The] Bill is largely silent on the rights of children. It does not address in a clear or comprehensive way the rights of children who live with a couple who, in the future, will be civil partners. Of course, a child has full rights in respect of a person who is his or her biological parent. However, the child’s right to the continuing parenting of the civil partner of his or parent is not enshrined in this measure… [A] child in such a relationship will not be able to seek maintenance from the non-biological parent and will have no succession rights if the civil partner of the child’s biological parent dies. The civil partner will not be able to adopt the child jointly…