Update on the Civil Partnership Bill 2009

The progress of the Civil Partnership Bill 2009 through the Oireachtas continues and today’s Irish Times contains two pieces on the cohabitation provisions of the Bill. As we have documented here and here the cohabitation provisions (i.e. for cohabiting couples who are neither married nor in civil partnerships) attempt to establish a kind of safety net. However, they apply only to ‘qualifying cohabitants’ and there is a serious fear—articulated in the Irish Times by Professor John Mee of UCC—that non-qualifying cohabitants will assume themselves protected when in fact no such protection exists.

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

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.

Civil Partnership Bill Second Stage This Evening

The second stage debate on the Civil Partnership Bill takes place this evening starting from 6.45 pm. We have already blogged about the bill here, here and here. Maman Poulet has been providing excellent coverage of the politics around the Bill here. Of particular interest is discussion of the addition of a so-called ‘religious freedom optout‘ to the bill. Padraig has blogged on that issue here. Maman Poulet carries details of a liveblog of the debate, which is hosted here and will kick off at around 6.30 pm. You can join in on twitter, where the hashtag is #cpbill. And, as Suzy says ‘if you just want to watch the debate without the wit, banter and outrage of the viewing masses then you can watch it here.‘

Guest Contribution: Hayward on Cohabitation in England Wales-Learning from Ireland?

We are delighted to feature this guest contribution from Andrew Hayward of Durham University Law School. You can find out more about Andrew on the Guest Contributors page. Unfortunately we do not have a photograph of Andrew but he has supplied us with the photograph on the left of an unhappy–presumably cohabiting–couple.

For family lawyers in England and Wales, cohabitation has long been the hot topic for debate. Various reform proposals have been produced here that, if implemented, could have provided some amelioration to the current legal provision offered to cohabitants on relationship breakdown. Optimists were hoping that the proposals in the Law Commission’s Report Cohabitation: Financial Consequences of Relationship Breakdown in 2007 would have been introduced to remedy the current unsatisfactory position by providing qualifying cohabitants an array of remedies on the breakdown of their relationship. No draft bill was inserted and due to the politically contentious nature of the provisions it was unsurprising that the Government chose to await findings from a similar scheme in Scotland by way of the Family Law (Scotland) Act 2006 (see the ministerial statement here). Since then two Private Members bills have been introduced, both with unlikely chances of success. So after reading the thought provoking posts from Fiona and Mairead on the cohabitation aspects of the Irish Civil Partnership Bill 2009, it appears that, yet again, England and Wales will be lagging behind.

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

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.

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.