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Civil Partnership Bill, Second Stage….Of Tatchell, MacLiammoir, Fathers and Left-Wing Extremist Feminism

January 28, 2010 Comments off

Gilligan and Zappone

On Wednesday the second stage debate on the Civil Partnership Bill continued in the Dail (see an explanation of the Irish legislative process here). The Bill has now passed the second stage and has been referred to the Select Committee on Justice, Equality and Women’s Rights. An archive of the customary liveblog (and very entertaining it is too) is here.

References were made throughout the debate to two Bills which preceded the present government’s efforts; the Norris Civil Partnership Bill of 2004 and the Labour Party’s ill-fated Civil Unions Bill of 2006 (notable for its provision for children’s rights and for adoption).

Some highlights of the debate (I am confining myself to comments which introduced new points or made old points in an important way. We have blogged the second stage already here and here )included:

A Threat to Marriage?

Beverley Flynn (FF) emphasised the special protection afforded to marriage under the Constitution. This was a theme taken up by Brian Hayes (and by many his FG colleagues) who, unusually (perhaps almost uniquely) for this debate, actually discussed and demonstrated some understanding of the applicable law: One of the myths that has been circulated is that the Bill will downgrade the position of marriage. I wish to refute that assertion because I do not believe marriage will be downgraded at all. The clear protection afforded to marriage under Article 40 of the Constitution is absolute. That protection can be changed only on foot of a referendum and it cannot be altered by an Act of Parliament. That was made abundantly clear in the remarks of Ms Justice Dunne in the High Court in the case taken by Dr. Zappone and Dr. Gilligan, in which they attempted to have recognised a marriage of their union in Canada in Irish domestic law. It is worth putting on the record what Ms Justice Dunne said in that case, which, I understand, is still under appeal in the Supreme Court. She said: I think one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple… The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage… Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex. In no way will the passage of this Bill downgrade or undermine marriage because absolute and clear protection is given in Articles 40 and 41 to marriage as an act between persons of opposite sex. I am not saying that in the future that could not change. However, the only way it could change is if there is a referendum. It is the people who will decide whether that definition of marriage as expressed in Bunreacht na hÉireann can change. I reject the notion that in some way the Bill downgrades marriage because absolute and fundamental constitutional protection is given to marriage in Articles 40 and 41.

It is interesting to note that the Minister for Justice in his response referred to two ways in which the Bill bears the marks of the government’s desire to protect the institution of marriage. First, he discussed the balance to be struck between a past spouse and a current co-habitant: I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General’s advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant. Second he distinguished between the relief available on marriage breakdown and that sought to be made available when cohabiting relationships end: The Bill’s redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.

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Should the Civil Partnership Bill 2009 contain a ‘conscience clause’?

January 28, 2010 7 comments

In the continued second stage debate on the Civil Partnership Bill 2009 which took place in Dáil Éireann yesterday the matter of so-called ‘conscience clauses’ arose with a number of Deputies suggesting that the Bill ought to include such a clause to allow people whose ‘conscience’ indicated that homosexuality or civil partnerships were a moral wrong to refuse to engage in the creation of such civil partnerships. This proposal, which did not gain purchase in the Dáil to any great extent, brings a number of questions to my mind that I want to briefly address here. In the main the debate concentrated on the public servants and registrars, but previously noises were made about private service and goods providers as well (marvellously covered by Suzy Byrne here and here) so I will briefly address that matter below.

Should ‘conscience clauses’ exist within equality legislation?

The first question is one of principle. If a piece of legislation is introduced with the purpose of trying to create formal legal equality or in some way to reduce inequalities (and I think the Civil Partnership Bill can be firmly placed in that latter category) then ought such legislation contain any ‘get out’ clauses of this nature? One’s conscience, surely, is a private matter. Directing that registrars may not refuse to conduct a civil partnership ceremony on the basis of their own beliefs does not direct that those beliefs may no longer be held; it simply precludes someone from using those beliefs as a reason to refuse to carry out a state function. The registrar, as a private citizen, may hold and profess whatever moral positions s/he wishes but as a public servant s/he is required to carry out public functions. This separation of the private individual and the professional is a normal requirement of professional life; there seems to me to be no basis for changing that in the context of this Bill. If the Oireachtas has, through legislation, decided to take equalising/decreasing-inequality measures then it seems nonsensical for such a clause to be included as, through such clauses, agents of the state would be enabled to act in a manner squarely in contrast with the policy and legislative objectives of the State. At the very least this sends unwelcome mixed messages from the State to those affected. It also does nothing to minimise the likelihood that same-sex couples would come into contact with behaviours of the state that are perceived as being homophobic. It therefore has the capacity both to undermine the State’s objectives and to give rise to feelings of humiliation and grievance in gay and bisexual people’s interactions with the State.   Read more…

Civil Partnership Bill, 2nd Stage Debate (2): Rhetoric, Religion and the Republic

January 22, 2010 Leave a comment

Narratives of Progress: Who Stands by the Republic Now?

In his speech in yesterday’s Civil Partnership debate, Deputy James Reilly (FG) said:

 I know that some speakers do not feel it goes far enough, but it is useful to remind ourselves from whence we have come. It is well within living memory when homosexuality was a crime in this country. Before that, it was even considered to be an illness. Awareness and enlightenment has slowly come, but it has come nonetheless.

 Yesterday saw the Civil Partnership Bill claimed from both sides of the house as emblematic of Ireland’s move towards not merely progressive but secular politics. Labour’s Ciaran Lynch, for instance said that ‘this Bill is a milestone, as Ireland moves from a theocracy to a democracy’.  The Civil Partnership Bill, it seems, is the mirror in which we look when we no longer want to see the Ireland of the Ryan Report gazing back.

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Civil Partnership Bill, 2nd Stage Debate (1) – Practical Points

January 22, 2010 2 comments

Labour's Ruairi Quinn speaking yesterday in the Dail.

On Thursday, the second stage debate on the Civil Partnership Bill picked up where it left off on December 3rd. The Adoption Bill was debated (see our guest post from Brid Nic Suibhne here) on the same day. 

You can read the liveblog of the Civil Partnership Bill debate, including my contributions to it here. We blogged the beginning of the second stage here

For reasons of space, there will be 2 posts about yesterday’s debate. On will focus on some important arguments made about the operation  of the Bill. The second will flag up a line of rhetoric which developed in the course of the debate about the proper place of religion in the republic.

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Civil Partnership Bill Second Stage Debate Highlights

December 7, 2009 4 comments

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.

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Reading About Same-Sex Civil Partnership

December 3, 2009 2 comments

As the second stage debate on the Civil Partnership Bill 2009 gets under way, I thought it might be useful to point readers to some pieces of open access socio-legal scholarship that I’ve come across in other research which offer interesting perspectives on legal recognition of same-sex partnerships.

On the  Practical Significance of Recognition

On the Special Nature of Legal Recognition

On the Disciplinary Impact of Legal Recognition

On Politics

On Religious Definitions of Marriage and Law

Cohabitation and the Civil Partnership Bill 2009: Concerns as to Scope

November 2, 2009 1 comment

I just wanted to follow up on Máiréad’s excellent post here on the cohabition provisions of the Civil Partnership Bill 2009. As Máiréad notes the inclusion of some (albeit very limited) protections for people within cohabiting relationships that are not either marriage or civil partnerships is symbolically at least an important step forward. Essentially, these protections are applicable at the point at which the relationship breaks down, and they are useful from a property law perspective. In essence, these are rights to apply for various orders such as property adjustment orders to recognise the various contributions of parties within the relationship to the welfare of that relationship. However, I would have some concerns about the scope of these protections.

As Máiréad notes, these protections are available only to “qualifying cohabitants”, i.e. people who have cohabited for 3 years or, where there are children being parented by the cohabitants, for 2 years. Where a couple falls outside of these qualifications then these provisions will not apply to that relationship. This would leave unmarried and un-civilly-partnered couples who want to make some kind of a claim relating to their shared homes in a position of having to rely on the Presumed Resulting Trust (also known as a Purchase Money Resulting Trust). This kind of a trust recognises only financial contributions to the purchase of the property as giving rise to ownership rights in equity. Thus, other forms of contribution (such as, for example, work within the home) would not give rise to these kinds of equitable rights and people who had contributed in that way towards the relationship and the home shared by the couple with have little or no meaningful recourse.

The Bill will also allow for cohabitation agreements to have a legal status and, of course, couples who might not be ‘qualifying’ within the definition of the Bill could have a cohabitation agreement drawn up that would be binding. This is certainly a welcome development and ought to be recommended to parties entering into a cohabiting agreement where the property to be shared is not in their shared ownership. Whether or not people will, realistically, avail themselves of such an opportunity is another question. This is particularly so given the pervasiveness of the myth of ‘common law marriage’, which does not exist in law but appears to have a prominent status in the popular imagination. It will, therefore, be important for people to take legal advice in order to protect themselves where they want to enter into a cohabiting arrangement and do not want to (or can not, for whatever reason) become married or enter into a civil partnership. I must admit that I am not convinced that people are likely to enter into such an agreement in most cases, especially where the individual partners may not have substantial assets to protect. However, we will have to wait and see.