Home > Families and the Law, Gender, Sexuality and the Law, Legislation and Law Reform > Civil Partnership Bill Second Stage Debate Highlights

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 GLENthe ICCL and the Equality Authority.

Here are some of the outstanding features of Thursday’s debate:

  • Many of the speakers in the debate – especially Fine Gael’s Deputy Flanagan and the Green Party’s Deputy Gogarty – located the Bill within a narrative of progress, from dreary priest-dominated Catholic Ireland to modern democracy marked by a supposedly unwavering commitment to equality (though Deputy Gogarty did well to recognise the difficulties of such progress). The relationship between the state and its majority religious community is a theme which will hang heavily over this debate. At an earlier meeting of the Fianna Fail parliamentary party, the Minister for Justice, Equality and Law Reform, Dermot Ahern, ruled out the possibility of a ‘freedom of conscience amendment’ to the Bill  (you can read the argument for that amendment from Catholic thinktank the Iona Institute’s David Quinn here and there is further coverage here . You can read Mr. Quinn’s views on heterosexuality as an essential component of marriage here). The church-state issue is also influential because of the hangover from the Murphy Commission Report. Although Minister Ahern had little to say about this aspect of the debates around the Bill in Parliament, Fine Gael’s Charles Flanagan said:
  • 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.

  • There is a suggestion in Ciaran Cuffe’s (Green) speech that a future government might return to the possibility of legislating for civil marriage in the aftermath of a Supreme Court decision in Zappone v. Gilligan. Brendan Howlin (Labour) suggested that constitutional amendment to accommodate same-sex civil marriage ought to be a possibility. Minister Ahern however takes the view that the constitutional protection of marriage situates the state’s necessary regard for heterosexual marriage as a necessary limit on its recognition of the long-term commitment of same-sex couples. This is a relation which bears further scrutiny. It is by no means evident from the text of the constitution (as opposed to its longstanding interpretation) that same-sex and opposite-sex relationships are in the kind of constitutional ‘competition’ that this paragraph from the Minister’s speech indicates:
  • ‘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.
  • Some Irish organisations which advocate gay civil marriage, such as  LGBT Noise, the National Lesbian and Gay Federationand Marriage Equality argue that the civil partnership scheme set out in the Bill -insofar as it enshrines in legislation a status which is not exactly equivalent to marriage – does not go far enough. This was a point picked up by the Greens’ Paul Gogarty in his speech, when he said that the Bill must be viewed as a temporary rather than a final measure. Brendan Howlin – who pointed out a number of times that Labour’s ill-fated Civil Unions Bill would have sealed the equivalence gap between civil partnership and marriage – quoted Mr. Justice Michael Kirby of the Australian High Court:
  • 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.
  • Brian Howlin (Lab.) and Catherine Byrne (FG) noted that the Bill does not make any significant provision for children. Brendan Howlin said:
  • [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…
  • The Fine Gael speakers also noted the omission of non-conjugal couples such as friends and siblings from the scope of the Bill.
  • Brendan Howlin raised the issues of retrospective recognition of foreign civil partnerships.
    1. December 7, 2009 at 10:45 pm

      We provide you below with a copy of the press release on the letter sent to the Taoiseach to make good his “Guarantees” that he made to the people in urging them to vote for the 28th Amendment to the Constitution and withdraw the controversial Civil Partnership/Co-habitation Bill. We ask you to also make your voice heard on this vital issue which threatens to undermine the basis of Ireland as a civil society in which people are rewarded for committing themselves to the service and duty of others. Marriage is one such commitment and duty and we call this promoting the Common Good which is the legitimate aim of legislation. Legislation which promotes self-centredness without a call to duty is not for the Common Good and must not be supported.

      The purpose of Marriage and why it has Constitutional protection is because it promotes the procreation of successive generations in an ordered and moral way. To be allowed to partake of the proposed Civil Partnership provisions and the benefits that accrue thereof – which are the very same as those that are legitimately bestowed on those who are prepared to surrender themselves to the scrutiny and regulation of Marriage – applicants must first and foremost be “Qualified Co-habitants”.

      To “qualify” for such an honour a person has to prove that they have had sex outside of Marriage! This is unprovable and the recognition and legitimisation of Co-habitation by this legislation is irrational, immoral and not for the Common Good. This legislation would legitimise sex outside of Marriage and define it as simply recreational. It stands that the Civil Partnership Bill is also flawed by the same process.

      Co-habitants, by definition, are people who have snubbed their noses at the custom and practice of millennia and have opted for selfishness in place of the self-sacrifice and duty required by Marriage. There is no impediment on anyone who wishes to avail of the benefits bestowed on the Family founded on Marriage, yet these people have purposely chosen to ignore the law and have children without submitting themselves to any regulation whatsoever. By so doing they have chosen to put their own children at risk.

      There is not even any suggestion by the government – as shown by the Explanatory Memorandum – that these two pieces of legislation are for the Common Good. The government states that this legislative initiative is solely for political purposes,

      The Bill is a key step in implementing the Government’s commitment in the Agreed Programme for Government to ‘‘legislate for civil partnership at the earliest possible date in the lifetime of the Government’’.

      The Constitution mandates that all legislation must be for the Common Good, not for political expediency.

      The Explanatory Memorandum states that the All-Party Oireachtas Committee on the Constitution, in its
      Tenth Report: The Family [January 2006] recommended legislation to provide for cohabiting heterosexual couples and that civil partnership be provided for same-sex couples.

      This reference is to the Conclusions of the Committee which, despite the contradictory views of the majority of submissions, include the following paragraph,

      “Nevertheless, the committee is of the view that the principal developments here should come at a legislative level. As we have already noted, the balance of the case law appears to suggest that the Oireachtas may legislate to provide ‘marriage-like’ privileges to cohabiting same-sex couples provided they do not exceed in any respect those of the family based on marriage. Since a presumptive scheme would not be appropriate, this provision might be made by way of civil partnership legislation.”

      The whole proposal for such legislation is founded on the claim that “the balance of the case law appears to suggest that the Oireachtas may legislate to provide ‘marriage-like’ privileges to cohabiting same-sex couples provided they do not exceed in any respect those of the family based on marriage” but the committee entirely fail to provide any authority. The reason is that there is no such authority.

      The authority actually shows that any legislation that undermines the institution of the Family founded on Marriage is not only immoral and contrary to the will of the people, it is doomed to be found un-Constitutional by the Supreme Court, if not by reference to it by the President, then by us at the earliest opportunity.

      For the All-Party Oireachtas Committee on the Constitution to ignore the submissions made by the majority, and made up of those who supported the status quo, in favour of those who wish to change the principles of the Constitution is akin to allowing NON-members of a club to change the rules over the the will of the legitimate members of the club who have paid their dues and have abided by the rules.

      We trust you will do the right thing and ensure that no more precious tax-payers money is wasted on this divisive project.

      God bless, Roger Eldridge

      Chairman, National Mens Council of Ireland
      Executive Director, Family Rights and Responsibilities Institute of Ireland
      National Office: Knockvicar, Boyle, Co. Roscommon
      Website: http://www.family-men.com Email: familymen@eircom.net
      Telephones: 00353 (0) 7196-67138


      Press release of letter sent to the Taoiseach on 1 December 2009

      In 2008 the Irish people rejected, by a large majority, the proposed Lisbon Treaty amendment to the Constitution. The Irish Government initiated a consultation process to find out why and discovered it was largely due to concerns that the Charter of Fundamental Rights would negate the Constitutional rights of the Family and Life.

      The Government went to Europe and secured “Guarantees” from the EU Ministers, which the Taoiseach and the opposition parties assured the electorate meant there could be no undermining of the Constitutional protections for the Family founded on Marriage and human life.

      It is acknowledged that these “Guarantees” brought about the huge swing from the original “No” to “Yes”. Therefore, it stands to reason that protection for the Constitutional definition of the Family and Life was a priority for the vast majority of voters, whether they voted “Yes” or “No.”

      Indeed the Commission of the Bishops’ Conferences of the European Community, (COMECE) issued a statement saying, “We expect that, thanks to the guarantees given to Ireland – the right to life, the protection of Family and the right of parents to educate their children – these rights will be made more secure in the whole Union.”

      The proposed controversial Civil Partnership and Co-habitation Bill is clearly repugnant to the Constitution as it stands. Had we not got the “Guarantees”, some such legislation might have been imposed on us under the Charter of Fundamental Rights, but we did get those guarantees and the government assured us they provide serious and meaningful protection for the distinctive Irish laws on Marriage, Family and the inviolability of innocent human life.

      We, the undersigned groups, many of whom have already made their position clear to the All-Party Oireachtas Committee on the Constitution (APOCC) call on the Taoiseach therefore to show the people they were right to trust him and his “Guarantees” by withdrawing this divisive Bill which APOCC confirmed will not stand Constitutional scrutiny by the Supreme Court – and in the process saving a lot of government time and taxpayers’ precious money, which could be better used to alleviate widespread suffering from loss of income and flood damage.

      God bless
      Roger Eldridge
      National Mens Council of Ireland
      Christian Women’s Federation
      Islamic Cultural Centre of Ireland
      Family and Life
      The Truth about Lisbon Group, Donegal
      John Paul II Society
      Sligo for Life
      Christian Democrats, the National Party
      Knights of St. Columbanus

      Roger Eldridge
      Chairman, National Mens Council of Ireland
      Executive Director, Family Rights and Responsibilities Institute of Ireland
      National Office: Knockvicar, Boyle, Co. Roscommon
      Website: http://www.family-men.com Email: familymen@eircom.net
      Telephones: 00353 (0) 7196-67138

    2. December 17, 2009 at 10:46 am

      Certain commentators have pointed to the guarantees provided to Ireland with respect to the Lisbon Treaty before the second referendum and contend that the Civil Partnership Bill contravenes the guarantee on family.

      For clarity, that guarantee states:

      “Nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty in the area of Freedom, Security and Justice affects in any way the scope and applicability of the protection of the right to life in Article 40.3.1, 40.3.2 and 40.3.3, the protection of the family in Article 41 and the protection of the rights in respect of education in Articles 42 and 44.2.4 and 44.2.5 provided by the Constitution of Ireland.”

      It is important to note that the guarantee says that nothing in the Lisbon Treaty, etc., will affect our Constitution as regards the family. It does not say that nothing in any law passed by the Oireachtas will affect those provisions of the Constitution.

      The media do not appear to correct this misunderstanding in relation to the guarantees, but campaigners against the Bill should note that the guarantees are not relevant to domestic legal changes.

    1. January 22, 2010 at 5:42 pm
    2. January 28, 2010 at 3:16 pm

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