The Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D., today published the Civil Partnership Bill 2009.
The Bill provides for a statutory civil partnership registration scheme for same-sex couples together with a range of rights and duties consequent on registration including maintenance obligations, protection of a shared home, pension rights and succession. 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 necessary legislative provisions, to be provided for in Finance and Social Welfare Bills, will be brought into effect at the same time as the civil partnership registration scheme commences.
The Bill provides, 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 cohabitants scheme will put in place a legal safety-net for people living in long-term relationships who may otherwise be very vulnerable financially at the end of a relationship, whether through break-up or through bereavement.
Announcing the publication, Minister Ahern said: "Publication of the Bill implements a commitment in the Agreed Programme for Government to legislate for Civil Partnerships. The Bill provides very significant rights to civil partners which raises complex legal issues in the context of the special protection which the Constitution guarantees to marriage and in relation to the equality rights protected by Article 40.1 of the Constitution. The Bill has been carefully framed to balance any potential conflict between these two constitutionally guaranteed rights. This balance is achieved by maintaining material distinctions between civil partnership and marriage, in particular between the rights attaching to both, while at the same time reflecting the equality rights protected by the Constitution."
The Bill will give legal recognition to cohabitant agreements enabling cohabitants to regulate their joint financial and property affairs. It will provide legal certainty as to the status of cohabitant agreements made by couples who wish to regulate their financial and property affairs but who do not wish to marry or enter a civil partnership and who do not wish the redress scheme to apply to them.
The Bill draws on both the Report of the Law Reform Commission on The Rights and Duties of Cohabitants and the Colley Options Paper on Domestic Partnership.
Concluding, the Minister said: "This Bill will put in place a legal regime that reflects the many forms of relationships in modern Irish society. It provides legal protection for cohabiting couples and is an important step, particularly for same-sex couples, whose relationships have not previously been given legal recognition by the State."
The Press Release will be available to view on the Oireachtas website: www.oireachtas.ie
26 June 2009
Note for Editors
Programme for Government
The Programme for Government commitment states:
"This Government is committed to full equality for all in our society. Taking account of the options paper prepared by the Colley Group and the pending Supreme Court Case, we will legislate for Civil Partnerships at the earliest possible date in the lifetime of the Government."
Colley Options Paper
The Colley Options Paper on Domestic Partnership was published on 28 November 2006. The Paper focuses on three distinct types of cohabiting relationships: opposite-sex couples, same-sex couples and non-conjugal relationships. The Paper presents a range of options according legal recognition and effect to each of these relationships. The options presented are: contractual arrangements, a presumptive scheme to protect a vulnerable dependent partner in the absence of any other formal recognition of the relationship, limited civil partnership (a civil registration scheme extending a limited selection of the rights and duties available on marriage to registered partners), full civil partnership (a civil registration scheme which extends almost all of the rights and duties available on marriage to registered partners) and legislative review and reform.
Law Reform Commission Report on Cohabitants
The Law Reform Commission Report on Rights and Duties of Cohabitants published on 1 December 2006 covers unmarried opposite and same-sex couples living together in an intimate relationship. The Report is a comprehensive examination of the law as regards cohabitants and makes recommendations for change in areas ranging from property law and succession, to taxation, pensions and domestic violence. The recommendations are intended to improve the situation of cohabitants particularly at the end of a relationship when people are potentially vulnerable to legal uncertainty and hardship. The Report also contains a draft legislative scheme to implement its recommendations.
The Report identifies three particular models for policy makers to consider: a status or registration scheme; private contract arrangements; and a redress scheme. The Law Reform Commission considers it appropriate to have a tiered approach which incorporates each of these models. It recommends the use of a contract model and a redress model as the basis for reform in addressing the rights and duties of cohabitants.
Synopsis of Civil Partnership Bill 2009
The Bill will:
• establish a scheme of registration of civil partnerships for same-sex couples together with a range of rights and duties consequent on registration including in relation to maintenance, shared home, succession and pensions. A civil partnership ends only on the death of a partner or on dissolution by the court
• create a cohabitant’s redress scheme for same-sex and opposite-sex couples giving protection to an economically dependent party at the end of a long-term cohabiting relationship where the couple has not chosen to marry or to register in a civil partnership,
• give legal recognition to cohabitant agreements enabling cohabitants to regulate their joint financial affairs.
Civil Partnership Registration for same-sex couples
Part 1 Preliminary and General
Part 1 provides for preliminary and general matters, including the power of the Minister to make orders. It defines "civil partners" for the purposes of the Act.
Part 2 Status of Civil Partnership
Part 2 confers powers on the courts to make declarations that may be required in relation to the status of a civil partnership about which some certainty is required. Part 2 also empowers the Minister for Justice, Equality 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 Registration of Civil Partnership
Part 3 inserts a new Part into the Civil Registration Act 2004 to provide for registration of civil partnerships. The provisions governing civil partnership registration are similar to those for registration of a civil marriage, except that the ceremony is optional, whereas a ceremony is mandatory in the case of marriage. No provision is made for registration by persons other than registrars, whereas marriages may be registered by registered solemnisers from religious bodies. The parties to a proposed civil partnership must not already be in a civil partnership or married, cannot be within the prohibited degrees of relationship (closely related by blood or by adoption) and must be 18 years of age or older. Three months notice of an intended registration is required. Registration will take place at the office of a registrar or at another approved venue and a registration ceremony may be conducted if the couple so choose.
Part 4 Shared Home Protection
Part 4 provides protection for the shared home of registered civil partners. It is analogous to the Family Home Protection Act 1976 and essentially prevents the sale of the shared home by one civil partner without the consent of the other.
Part 5 Maintenance of Civil Partner
Part 5 allows a civil partner to apply to court for maintenance from the other civil partner during the course of the relationship where the other civil partner has failed to maintain the applicant civil partner.
Part 6 Attachment of Earnings
Part 6 allows the court to make an attachment of earnings order to secure payment under the various types of maintenance orders.
Part 7 Miscellaneous Provisions relating to Parts 5 and 6
Part 7 provides that payments under maintenance orders are made without payment of income tax; makes such orders enforceable under the Enforcement of Court Orders Act 1940; provides that certain property is joint property; and makes unenforceable provisions in agreements which preclude the payment of maintenance by either civil partner to the other.
This maintenance provisions in Parts 5, 6 and 7 are based on provisions in the Family Law (Maintenance of Spouses and Children) Act 1976.
Part 8 Succession
Part 8 provides in effect that for succession purposes on testacy, registered civil partners will have the same entitlements as spouses to a legal right share (one half of the estate if the deceased has a civil partner and no children; one third of the estate if the deceased has a civil partner and children). A child of the deceased may apply under section 117 of the Succession Act 1965 for provision from the estate of the deceased if the deceased failed to make proper provision.
For the purposes of succession on 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 whole 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). In addition, where a civil partner dies intestate, a child of that civil partner may apply to court for a greater share of the estate. The court may, if it is satisfied that it would be unjust not to make the order, 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 children of the deceased are entitled.
Part 9 Domestic Violence
Part 9 extends the protections for spouses under the Domestic Violence Acts 1996 and 2002 to registered civil partners.
Part 10 Miscellaneous Consequences of Civil Partnership Registration
Part 10 provides for a wide range of miscellaneous legal consequences of registration including in relation to:
• ethics and conflict of interest. A civil partner will be treated as a "connected person" or "connected relative" in determining matters concerning ethics and conflicts of interest. A declaration of interest required in relation to a spouse must likewise be made in relation to a civil partner.
• civil liability. A civil partner is added to the list of dependents in respect of whom a person may sue for damages for wrongful death.
• pensions. A pension scheme which provides a benefit for a spouse is deemed equally to provide a benefit for a civil partner.
• protection from discrimination. The term "civil status" is substituted for "marital status" throughout the Employment Equality Act 1998 and the Equal Status Act 2000 so that the statutory obligation not to discriminate against a person on the ground that the person is single, married, separated, divorced or widowed is extended to prohibit discrimination against a person based on the person being in a registered civil partnership, or formerly in a registered civil partnership which has been dissolved.
Part 11 Nullity of Civil Partnership
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 Dissolution of Civil Partnership
Part 12 makes provision for 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 dissolution of civil partnership will lie with either the Circuit Court or the High Court and the courts will have powers to make extensive ancillary financial relief, property and pension orders. These provisions are closely modelled on the provisions of the Family Law (Divorce) Act 1996 with these modifications:
• the time period required to obtain a dissolution (separation for two years of the past three) is shorter than that required for a divorce (separation for four years of the past five)
• there is no requirement, as there is in divorce, that the civil partners’ legal advisers discuss the possibility of reconciliation, mediation or other alternatives to dissolution proceedings although the court may adjourn proceedings for such purposes.
Part 13 Jurisdiction and other related matters
Part 13 provides for matters of jurisdiction in civil partnership law proceedings:
• cases will be heard in camera,
• proceedings will be informal,
• the Circuit Court and the High Court have concurrent jurisdiction to hear civil partnership dissolution proceedings and make ancillary relief orders,
• the District Court has jurisdiction in domestic violence cases, in certain property disputes and in maintenance matters.
These jurisdiction provisions are similar to jurisdiction in family law matters.
Part 14 Other consequential amendments
Part 14 provides for consequential amendments to other enactments, especially to 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 to that former spouse under those Acts lapse on registration. This mirrors the position in current family law whereby many of the ancillary relief orders available under those Acts lapse on the remarriage of the spouse for whose benefit the orders were made. A range of other legislation is amended by means of Schedules to confer certain property rights, rights of redress and other miscellaneous rights and responsibilities on civil partners as a consequence of registration.
The consequences of registration of a civil partnership under the tax and social welfare codes will be developed by the Departments of Finance and Social and Family Affairs respectively, in a Finance Bill and a Social Welfare Bill, and the changes brought into effect at the same time as the civil partnership registration scheme commences.
Part 15 Cohabitants
Part 15 establishes a redress scheme for unmarried or unregistered cohabitants to provide protection to an economically dependent party at the end of a long-term opposite-sex or same-sex relationship.
• The redress scheme provides a protective mechanism for a financially dependent partner where the couple have not formally regulated their relationship.
• It is available only to qualified cohabitants and may be activated on termination of the relationship whether by break-up or death.
• A qualified cohabitant is one of a couple who have cohabited for at least three years, or two years where there is a child of the relationship, except that 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 4 years during the previous 5 years (i.e. 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 orders for provision from the estate of a deceased cohabitant, property adjustment orders, compensatory maintenance and pension adjustment orders.
Part 15 also establishes that an agreement between cohabitants regulating their joint financial and property affairs can be enforceable, subject to observation of certain formalities. The court may set aside a provision in an agreement only in exceptional circumstances where its enforceability would cause serious injustice.
Protection for Cohabitants – opposite-sex and same-sex couples
The Domestic Violence Acts, the Residential Tenancies Act 2004 and the Civil Liability Act 1961 are amended so that provisions in those Acts which currently apply only to couples "living together as husband and wife" will apply equally to same-sex couples. A further amendment is made to section 2 of the Domestic Violence Act 1996 so that a cohabitant may apply for a safety order without a minimum period of cohabitation.
Part 16 Miscellaneous
Part 16 provides a general saver requiring that in making any orders under this legislation, the court shall have regard to the rights of any other person with an interest in the matter, including a spouse or former spouse or a civil partner or former civil partner.