The Minister for Justice and Law Reform, Mr Dermot Ahern, T.D., has today signed the Commencement Order bringing the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 into effect from 1 January 2011.
Announcing the commencement of the Act, the Minster said: "I am particularly pleased to bring this Act into operation. The new legal regime reflects the many forms of relationships in modern Irish society. Gay couples, whose relationships have not previously been given legal recognition by the State, may now formalise their relationships in the eyes of the law and society at large. Their relationships will be legally recognised and protected. Persons in committed gay relationships who wish to share duties and responsibilities now have the choice to register their partnership and become part of a legal regime that fully protects them in the course of that partnership and, if necessary, on its termination. The redress scheme, too, is a measured response in law to a growing need for protection of vulnerable cohabitants.
The new law recognises and supports diversity. It affords certainty of status and security for civil partners."
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was enacted on 19 July 2010. The Act establishes a civil partnership registration scheme for same-sex couples together with a range of rights, obligations and protections consequent on registration including maintenance obligations, protection of a shared home, pension rights and succession.
Arrangements have been made by an tArd-Chláraitheoir so that the Civil Registration Service is in a position to conduct civil partnership registrations from January 2011. In view of the 3 month notice requirement on the parties, registrations in Registrars' offices or other approved venues will occur from April 2011 onwards. Registrations in the first 3 months following commencement may only occur in the event of a court order being obtained by the parties to waive the notice period for exceptional reasons (e.g. in the event of serious illness). An information booklet on the registration process is available at www.groireland.ie
On registration of a civil partnership, the civil partners will be treated in the same way as spouses under the tax and social welfare codes. The changes required to introduce civil partnership into the tax and social welfare codes also come into effect from 1 January 2011.
The Minister has also made an Order under the Act prescribing certain categories of registered relationships in other jurisdictions as entitled to be treated as equivalent to civil partnership under Irish law from January 2011.
The Act also establishes, for unmarried opposite-sex couples and unregistered same-sex couples, a redress scheme to give protection to a financially dependent person at the end of a long-term cohabiting relationship. The redress scheme will be a legal safety net for people in long-term relationships who may otherwise be very vulnerable financially at the end of a relationship, whether through break-up or through bereavement. The redress scheme may only be activated at the end of a relationship of at least 5 years duration, whether by break-up or death, and allows a financially dependent cohabitant to apply to court for certain remedies, including maintenance, pension or property adjustment orders, or provision from the estate of a deceased cohabitant. The Act also makes provision for the recognition of cohabitant agreements which regulate the shared financial affairs of cohabiting couples and enable couples to opt out of the application to them of the redress scheme.
23 December 2010
Note to Editors
Outline of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
Part 2 confers power on the courts to make declarations on the status of a civil partnership where the status may be in doubt. It also empowers the Minister for Justice and Law Reform to prescribe certain categories of relationship contracted in other jurisdictions as entitled to be treated as equivalent to civil partnership under Irish law.
Part 3 makes extensive amendments to the Civil Registration Act 2004 to provide for the detailed arrangements for civil partnership registration, including notice requirements, information requirements, declarations to be made, venues and effect of civil partnership. Three months notice of an intended registration is required unless, for example, one of the parties is very ill, in which case a court exemption may be obtained. Registration will take place at the office of a registrar or another venue approved by the HSE and a registration ceremony may be conducted if the couple so choose. The minimum age requirement is 18 years.
Part 4 provides protection for the shared home of registered civil partners. It is analogous to the Family Home Protection Act 1976 and prevents the sale of the shared home by one civil partner without the consent of the other.
Part 5 allows a civil partner to apply to the court for maintenance from the other partner during the course of the relationship where the other civil partner has failed to maintain the applicant civil partner.
Part 6 allows the court to make an attachment of earnings order if it considers it desirable to secure payment under a maintenance order.
Part 7 makes a number of provisions related to Parts 5 and 6, including specifying that payments under maintenance orders are made without deduction of income tax; makes such orders enforceable; provides that certain property is joint property; and makes unenforceable any provision in agreements which precludes the payment of maintenance by either civil partner to the other.
Part 8 provides for succession. On testacy, civil partners will have the same entitlements as spouses to a legal right share under the Succession Act 1965. Where there is a will, the entitlement is to one half of the estate if the deceased has a civil partner and no children, and to one third of the estate if the deceased has a civil partner and children. A child of the deceased may apply, as may a child of a heterosexual couple, under section 117 of the Succession Act 1965 for provision from the estate if the deceased has failed to make proper provision during his or her lifetime. Unlike the existing provision in law for spouses, an order made in favour of a child may reduce the share of the estate available for a civil partner.
Where there is no will — in an intestacy — the rules of distribution will operate in the same way for civil partners as they do for spouses. If the deceased dies leaving a civil partner and no children, the civil partner inherits the entire estate; if the deceased dies leaving a civil partner and children, the civil partner inherits two thirds of the estate and the remainder is divided between the children. These rules are modified to provide greater rights for a child of an intestate civil partner. Where a civil partner dies intestate, a child of that civil partner may apply to the court for a greater share of the estate. If satisfied that it would be unjust not to make such an order, the court may order that a share be provided for that child not exceeding the share to which the child would be entitled if the parent had died with no spouse and no civil partner. Such an order may not reduce the amount to which any other issue of the deceased is entitled and the net effect would be to reduce the share of the surviving civil partner.
Part 9 extends to civil partners the same protections spouses are afforded under the Domestic Violence Act 1996.
Part 10 provides for a wide range of miscellaneous but nevertheless important legal consequences of registration, including in ethics and conflicts of interest. A civil partner will be treated as a "connected person" or "connected relative" in determining matters concerning ethics and conflicts of interest.
In regard to civil liability, a civil partner is added to the list of dependants, in respect of whom a person may sue for damages for wrongful death. A pension scheme which provides a benefit for a spouse is deemed equally to provide a benefit for a civil partner.
In regard to protection from discrimination, the Employment Equality Acts 1998 to 2007 and the Equal Status Act 2000 prohibit discrimination against a person on the grounds that the person is single, married, separated, divorced or widowed. The same prohibition against discrimination under the Acts will apply in favour of those who are in a registered civil partnership, or in a civil partnership which has been dissolved.
Part 11 provides for decrees of nullity of civil partnership and the effect of a decree of nullity. The grounds for nullity are that there was an impediment to the civil partnership at the time of its registration such as one or both of the parties being under age at the time of registration, or one or both of the parties not having given informed consent.
Part 12 makes provision for the dissolution of civil partnerships and the effect of a decree of dissolution. To obtain a decree of dissolution, the partners must have lived apart for a period of at least two years in the previous three years and the court must be satisfied that proper provision is made for both partners. Jurisdiction in the dissolution of a civil partnership will lie with the Circuit Court and the High Court and the courts will have powers to make extensive ancillary financial relief, property and pension orders.
Part 13 provides for matters of jurisdiction in civil partnership proceedings, including that cases will be heard in camera; proceedings will be as informal as possible; the Circuit Court and the High Court have concurrent jurisdiction to hear civil partnership dissolution proceedings and make ancillary relief orders; and the District Court has jurisdiction in domestic violence cases and in certain property disputes and maintenance matters. These provisions are similar to those which apply in jurisdiction in family law proceedings.
Part 14 provides for consequential amendments to other enactments, including the Family Law Act 1995 and the Family Law (Divorce) Act 1996. These amendments ensure that if a former spouse registers in a civil partnership, any ancillary relief orders provided for that former spouse under the Acts lapse on registration. This mirrors the position in current family law, whereby many of the ancillary relief orders available under the Acts lapse on the remarriage of the spouse for whose benefit the orders were made. Other enactments are amended by means of the Schedule to the Act to confer certain property rights, rights of redress and other miscellaneous rights and responsibilities on civil partners as a consequence of registration.
Part 15 establishes the qualified cohabitants redress scheme for unregistered or unmarried cohabiting couples. The redress scheme will provide protection for an economically dependent party at the end of a long-term same-sex or opposite-sex relationship. It is available only to cohabitants defined as "qualified" in the Act and may be activated on termination of the relationship, whether by break-up or death.
Section 172 provides that a qualified cohabitant is one of a couple who have cohabited in an intimate and committed relationship for at least five years, or two years where there is a child of the relationship. However, where one of the cohabitants is still married, neither of the cohabitants may be a qualified cohabitant until the married cohabitant has lived apart from his or her spouse for a period or periods of at least four years during the previous five years, the separation period provided in the Constitution for divorce. The reliefs available on termination of the relationship on application to the courts are at the court’s discretion and include compensatory maintenance and pension adjustment orders, property adjustment orders and provision from the estate of a deceased cohabitant.
Part 15 also establishes that an agreement between cohabitants regulating their joint financial and property affairs can be enforceable, subject to the observation of certain formalities. The court may set aside a provision in any agreement only in exceptional circumstances where its enforceability would cause serious injustice.
In addition, Part 15 extends certain statutory protections to cohabiting, unmarried, opposite-sex and unregistered same-sex couples. The Residential Tenancies Act 2004 and the Civil Liability Act 1961 are amended in order that provisions in these Acts which currently apply only to couples defined as "living together as husband and wife" will also apply to same-sex couples.
Part 16 specifies that in making orders under the Act the courts must have regard to the rights of others, particularly to a spouse or former spouse, or a civil partner or former civil partner.