Civil Partnership Bill 2009: Second Stage.

Thursday, 3 December 2009

Dáil Eireann Debate
Vol. 697 No. 1

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Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): Information on Dermot Ahern  Zoom on Dermot Ahern  I move: “That the Bill be now read a Second Time.”

  7 o’clock

The commitment to civil partnership is shared by all parties in this House. It is a core Government commitment and is contained explicitly in the programme for Government negotiated between Fianna Fáil and the Green Party. My own party’s 2007 manifesto contained the clear commitment that, “based on our republican ethos and building on the agenda for equality to which we are committed” Fianna Fáil, if re-elected, would introduce civil partnership legislation in order that same sex couples could live in a supportive and secure legal environment. Today, through the Civil Partnership Bill 2009, the Government responds to these commitments.

Its response, set out in 206 sections and a schedule that contains 119 consequential amendments of existing legislation, is one of the most comprehensive measures to come before the House for debate. The attention to detail required of this Bill has inevitably taken time. However, given the complexity, scope and range of the subject matter, I suggest it has been time well spent in putting the required form and shape on the Bill. For a Bill so large and complex, its Long Title probably comes as a surprise. It simply states:

This Bill takes nothing from anyone but what it gives is profound and is positive.

It 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 [108]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.

These are highly specific measures that are being provided for in the law for the first time. Up to only a few short years ago they are measures that would have been unheard of in any jurisdiction. In many other respects, however, our laws regarding gay and lesbian persons have been the subject of a modern code. The Prohibition of Incitement to Hatred Act 1989 banned incitement to hatred of a person or a group of people on a range of grounds, including sexual orientation. In 1993, the Criminal Law (Sexual Offences) Act finally decriminalised male homosexual acts. The Employment Equality Act 1998 and the Equal Status Act 2004 made it an offence to discriminate against people in employment or in the provision of goods and services, on a range of grounds, again including sexual orientation. Through these legislative measures, the State clearly has shown that people as individuals are entitled to receive fair and equal treatment whether they are gay, lesbian or heterosexual. The State has put in place the legal infrastructure to safeguard this entitlement to equal treatment. It is now time to move forward and to add to the legal protections in place for persons against discrimination and exclusion. The absence of official recognition and affirmation for same-sex relationships only helps to reinforce prejudice and inequality in society.

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.

These are not hypothetical cases. They are the real experiences of gay Irish couples in recent years and ones more couples will have if we do not reform the law. Enactment of the Bill will mean that gay couples will no longer have their relationships ignored. They will have the protection and the recognition of the State in its laws.

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. In this complex exercise of trying to achieve balance, I am grateful to the Attorney General and his office for the advices he has provided. I also thank the Colley group for examining the background, [109]taking on board submissions and presenting options for making new provision in our law for same-sex couples and other cohabitants. The recommendations of the Oireachtas Committee on the Constitution have also informed the policy proposed in the Bill.

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.

Another key feature of the Bill is that it gives recognition to the fact that the law needs to intervene to offer better protection to vulnerable persons in long-term same-sex or opposite-sex relationships when that relationship ends. At present, cohabiting couples have few legal responsibilities to each other. Many cohabiting couples do not realise just how little protection they are entitled to until things go wrong, whether through the acrimonious break-up of a long relationship or the sudden unexpected death of a partner.

When I launched the general scheme of the Bill, I was asked how the provisions relating to cohabitants differed from common law marriage. Many couples are under a misapprehension that the longevity of a relationship is sufficient to provide them with certain rights and protections in all sorts of areas from common ownership of property to next-of-kin or inheritance rights. Under the law, this is not the case. There is no entitlement to financial support and property rights do not accrue to a cohabiting partner unless he or she is making express financial contributions.

The redress scheme provided for in the Bill is largely as recommended by the Law Reform Commission. It will 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.

In the registration of a civil partnership, same-sex civil partners will be treated in the same way as spouses under the tax and social welfare codes. The necessary legislative provisions are being provided for in the finance and social welfare Bills that will, on enactment, come into effect at the same time as commencement of the registration provisions in this Bill. There is no question of the same tax and social welfare provisions being extended to cohabitants, be they same-sex or opposite-sex couples.

[110]The general scheme of the Bill, published in June 2008, outlined the Government’s policy proposals on immigration issues for registered civil partners or people whose relationships would be recognised as civil partnerships for the purposes of Irish law. The scheme included proposals to amend the Immigration, Residence and Protection Bill 2008 to ensure registered civil partners or equivalent relationships would be treated in the same way as spouses. For timing reasons, this has not been provided in the Civil Partnership Bill as the Immigration, Residence and Protection Bill has not yet been enacted but the appropriate amendments will be moved in due course.

A detailed explanatory memorandum, 28 pages, accompanies the Bill. No doubt a good deal of discussion will be had on Committee Stage about the Bill’s various provisions which I will now outline.

The largest Part is concerned with civil partnership for same-sex couples. Part 2 confers power on the courts to make declarations that may be required about the status of a civil partnership where the legal status may be in doubt. It 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 inserts a new Part into the Civil Registration Act 2004 to provide for the registration of civil partnerships. Section 16 makes detailed provision for notification of civil partnership registrations, the registration process and objections. Three months notice of an intended registration is required unless, for example, one of the parties is very ill in which case an exemption may be provided. Registration will take place at the office of a registrar, or another approved venue, 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 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. These provisions are in general analogous to Part II of the Family Law (Maintenance of Spouses and Children) Act 1976. Part 6 allows the court to make an attachment of earnings order if it considers it desirable to secure payment under a maintenance order, an interim order, a variation order or a maintenance pending suit order.

Part 7 provides that payments under maintenance orders are made without deduction 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 any provision in agreements which preclude the payment of maintenance by either civil partner to the other. Part 8 provides that for succession purposes on testacy, registered civil partners will have the same entitlements as spouses to a legal right share. So where there is a will, the entitlement is to one half of the estate if the deceased has a civil partner and no issue, and to one third of the estate if the deceased has a civil partner and issue. A child of the deceased may apply 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 in existing provision in law for spouses, an order made in favour of a child may reduce the share of the estate available to a civil partner.

Where there is no will, 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 issue, the civil partner inherits the whole estate; if the deceased dies leaving a civil partner and issue, the civil partner [111]inherits two thirds of the estate and the remainder is divided between the issue. These rules are modified to provide greater rights to a child of an intestate civil partner. Where a civil partner dies intestate, a child of that civil partner may apply to court for a greater share of the estate. If satisfied that it would be unjust not to make 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 are entitled and the net effect would be to reduce the share of the surviving civil partner.

Part 9 extends to registered civil partners the range of civil protections for spouses provided under the Domestic Violence Acts. Part 10 provides for a wide range of miscellaneous but nevertheless important 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 and declaration of interest required in regard 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 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 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 the Circuit and High Courts who will have powers to make extensive ancillary financial relief, property and pension orders.

Part 13 provides for matters of jurisdiction in civil partnership law proceedings including, that cases will be heard in camera; proceedings will be as informal as possible; the Circuit Court and 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 jurisdiction in family law proceedings.

Part 14 provides for consequential amendments to other enactments, in particular 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. Other enactments are amended by means of Schedules to the Bill 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. As I explained earlier the redress scheme will provide protection to an [112]economically dependent party at the end of a long-term same-sex or opposite-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 cohabitants defined in the Bill as “qualified” and may be activated on termination of the relationship whether by break-up or death.

Section 170 provides that a qualified cohabitant is one of a couple who have cohabited in an intimate and committed relationship for at least three 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, which is 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 the 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. Finally, Part 15 extends certain statutory protections to cohabiting unmarried opposite-sex and unregistered 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 defined as “living together as husband and wife” will apply equally to same-sex couples. A further amendment is made to the Domestic Violence Acts so that a cohabitant may apply for a safety order without a minimum period of cohabitation.

I believe this Bill is as comprehensive as possible consistent with the requirements of the Constitution. The Bill recognises that there are persons who are in committed same-sex relationships who wish to share duties and responsibilities. It affords them an opportunity to register their partnership and to be part of a legal regime that fully protects them in the course of that partnership and, if necessary, on termination of the partnership. The redress scheme is a response in law to a growing need for protection of vulnerable cohabitants. I look forward to debate on the many issues the Bill inevitably raises.

I take this opportunity to again thank the Attorney General and my staff for their intensive work on this Bill. Equally, I thank the groups who have lobbied on this issue in the past number of years. I believe today is a significant milestone for them, some of whom are represented in the Visitors Gallery. I thank them for their understanding in regard to the balance that Government had to achieve in this Bill, in particular in the context of Articles 41 and 40.1 of the Constitution. As far as we on the Government side are concerned, we have fulfilled that balance and this legislation will stand the test of time.

I commend the Bill to the House.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  Is it proposed to adjourn the Second Stage debate on this Bill this evening?

An Ceann Comhairle: Information on Seamus Kirk  Zoom on Seamus Kirk  Yes, at 8.45 p.m.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  On behalf of the Fine Gael party, I am proud to welcome this Bill this evening. We welcome the legislation and will support it. As the Minister stated, the legislation is a milestone and is important. The Bill is long and detailed and includes more than 200 [113]sections, almost 120 pages, and five Schedules. It also amends 130 items of legislation and will require detailed debate on Committee Stage. It is important that certain aspects of the Bill that require amendment or improvement are debated at that Stage.

Essentially, the Bill is a hybrid of two separate schemes. For the purposes of this debate, I wish to address each individually beginning with civil partnership. Legislating for civil partnership is a tangible testament to how far Irish society has come. Until recently, this country was characterised by oppression, patriarchy, dogmatism and a particularly rigid and domineering brand of Roman Catholicism with an inflexible set of social rules that meant one either had to conform to or leave. Church and State were intertwined to an inappropriate degree, and religious dogma dominated discourse not only throughout society but in this Legislature. We are only too well aware of the fate of single mothers, enslaved in laundries and socially ostracised for having a child out of wedlock, a “sin” in the eyes of the church. We now know the harrowing suffering that such girls endured, and these factors must be borne in mind by parliamentarians when we shape legislation.

In the Ireland of the past, homosexuality was not tolerated to such an extent that it was a criminal offence to engage in homosexual activity. It remained a criminal offence until 1993 when the European Court of Human Rights found Ireland in breach of the European Convention on Human Rights. It is to the credit of Members of the Oireachtas, particularly Senator David Norris and others, that they played a key role in having that law removed from the Statute Book. The Ireland of the past was undoubtedly an extraordinarily difficult place for gay and lesbian citizens. There was virtually no understanding of difference. The way the churches treated homosexuality as a “sin” and a “choice” must have led to painful turmoil for gay people in this country. Thankfully, we have made great strides as a nation and we now live in a more tolerant era, characterised more by reason and science than by bigotry, superstition and fear. This Bill will help us move to a place where tolerance, diversity and inclusivity are more than mere buzz-words, but are characteristics that define our corpus of family law.

In the concluding paragraph of the judgment in the case of Zappone and Gilligan v. Revenue Commissioners, Judge Dunne commented:

The plaintiffs in this case, Katherine Zappone and Ann Louise Gilligan, are a same sex couple who sought a judicial review after the Registrar General and the Revenue Commissioners refused to recognise the validity of their 2003 marriage in Canada. Although the High Court found against the plaintiffs, the comments of the presiding judge on the need for us as legislators to “ameliorate” the painful difficulties faced by same sex couples in Ireland highlight once again the need for this Bill.

I have referred to the Ireland of the past being a difficult place for gay and lesbian people but, unfortunately, the Ireland of the today can sometimes reflect an ignorant, bullying prejudice that a majority want to consign to the history books. A comprehensive study by the Gay and Lesbian Equality Network, GLEN, published earlier this year revealed some horrifying statistics. One in four homosexuals has been punched, kicked or beaten in violent homophobic attacks. Almost one-fifth have tried to take their own lives — with many saying this was related to their sexual identity. A total of 58% of respondents said there was homophobic bullying at school, with more than half saying they had been called abusive names and a quarter saying [114]they had been physically threatened by other students. More than a third said they had heard homophobic comments by teachers, while 8% said they had been called names by them. A third of respondents said they self-harmed over the stress of concealing their sexual orientation during their teenage years. Some 80% of those surveyed said they had been verbally insulted, while 40% had been threatened with physical violence.

The survey results paint a very bleak picture of life for young gay men and women in our country. We are all well aware that difference can give rise to bullying, whatever that difference may be. I believe we have an important role to play in addressing homophobia in Irish society. Introducing equality measures such as civil partnership legislation sends out the message that there is nothing wrong with being gay and that all our citizens are entitled to live in a society characterised by equality and tolerance.

The Fine Gael Party has long had a proud tradition of promoting social justice. My party’s seminal equality and social justice policy, The Just Society, which was launched in the 1960s, has guided our social policies in the years since then. I am proud that it was a Fine Gael-led Government that in the 1980s introduced significant legislation to improve the legal position of women as well as introducing remedies for abuses such as domestic violence. It was a Fine Gael-led Government that introduced divorce. In doing so, we were not seeking to undermine marriage but to give a legal remedy to those whose marriages had broken down and who were left stranded in a legal limbo.

The rationale that informed the decision to legislate for divorce is very evident in the Bill before the House today. Civil partnership and the cohabitation scheme are about providing legal remedies and rights rather than undermining marriage. Similar to divorce, the rights and remedies contained in this Bill will be often the most relevant when people are experiencing difficulties or heartache in life, for example, when there has been a death, when a long-term relationship has broken up or when someone is seriously ill. Fine Gael recognised the need to address the legal difficulties faced by same sex couples in 2002 when we committed to removing legal barriers in areas such as property and inheritance rights. In 2004, we published a more comprehensive policy on civil partnerships, seeking to create an atmosphere of acceptance for gay people in Ireland through a range of measures not limited to civil partnership. I take this opportunity to pay tribute to those involved in framing that policy, particularly, former Senator Sheila Terry and Deputy Alan Shatter.

There have been objections to this Bill on the basis of marriage. Some have attempted to portray the Bill as an attack on the institution of marriage. That allegation must be refuted. Marriage is a matter of personal choice and religious conviction and the fact that there are many same-sex couples in Ireland who would like to get married only indicates how popular and desirable marriage is for many people. The process that has led to this Bill being read today in the Dáil has been described by some as a model process due to the raft of significant options papers and reports that preceded it, particularly in the past ten years. The Minister has referred to these, the most significant among them being the Colley report and the report of the Law Reform Commission on cohabitees. Many of the recommendations of the Law Reform Commission report are in this Bill.

We also had the opportunity to examine systems in other countries. Civil partnership for same sex couples is now available in a number of European countries, including Denmark, Iceland, Finland, Germany, Switzerland, the UK and Slovenia. Many countries have gone further and legislated for same sex marriage, including the Netherlands, Belgium, Spain, Sweden, Canada, Norway and South Africa. Ireland is part of a growing trend towards a more rights-driven world that permits and celebrates difference. I am pleased Ireland is moving in that direction.

[115]We will have an opportunity on Committee Stage to deal with the legislation line by line. However, I am very concerned about the glaring omission of children from the civil partnership provisions. Such an omission fails to recognise the de facto situation in which an estimated one third of the approximately 2,000 same sex cohabiting couples registered in the 2006 census have children. Failing to take children into account fails these children in an unacceptable way. This was brought home to me just two years ago when a former constituent, Barbara Gill, was knocked down and killed, leaving behind a devastated partner and child. Barbara and her partner comprised a same sex couple, and they had a baby son to whom Barbara’s partner had given birth. Barbara did not have a biological link to her son, yet he was her son and she was his parent. When Barbara was killed, her partner and her son were left in a legal quagmire with no relief.

I am delighted to welcome Barbara’s parents who are in the Visitors Gallery this evening. They were distraught. Having lost Barbara, her loving partner and son were now faced with further trauma, this time caused by the failure of the Oireachtas to legislate to protect the inheritance rights of children in same sex partnerships. Barbara Gill contributed enormously to Ireland during her all too short life. She lectured in the Church of Ireland College of Education and in St. Patrick’s College, Drumcondra. She espoused human rights and inter-cultural education before such causes became fashionable. She was a good person and a good parent. We owe it to people like Barbara Gill, her partner and her son to address the vulnerable legal position of children of same sex couples and their non-biological parents.

Studies have shown that children who are raised by same sex couples do just as well as those raised by heterosexual couples. Such studies have been carried out by the UK Royal College of Physicians, the American Academy of Pediatrics and the American Psychological Association. My understanding is that it is unusual not to address the matter of children in a scheme for civil partnership. It is not too late to make significant changes to this Bill and I hope the Minister will commit to addressing the gaping lacuna in the proposed legislation. Otherwise our law will remain out of step with reality and fail to protect the vulnerable.

The second major pillar of this Bill relates to rights and responsibilities for cohabiting couples, both same sex and opposite sex. It might have been more appropriate to introduce measures for cohabitants in a separate Bill. However, in recognising how infrequent it is for a significant Bill overhauling family law to come before the Oireachtas, I accept that there may be merit in including a scheme for cohabitants in this Bill. The scheme for cohabitants is a presumptive scheme and I believe this will give rise to challenges in respect of communicating to people that the law has changed significantly. I would be interested to hear the Minister’s comments on how he intends to proceed in that regard. Some legal experts have warned that the presumptive nature of the scheme could give rise to legal challenges and that ambiguities in the Bill regarding the establishment of when cohabitation began may present problems.

I note again that we are following the precedent set elsewhere, in that similar presumptive schemes for qualified cohabitants are in operation in jurisdictions such as Scotland, Austria, France, Hungary, the Netherlands, Portugal, Spain, Sweden, Australia, New Zealand, Canada and the United States. Perhaps the Minister could brief the House on how these schemes operate and whether any significant legal difficulties have arisen.

Notwithstanding these technical issues, we must acknowledge that provisions recognising cohabitants and qualified cohabitants reflect the reality of modern Ireland. The 2006 census registered 121,800 cohabiting couples with 74,500 children. The census further recorded more than 2,000 same sex cohabiting couples, one third of which have children. Therefore, it is important that this Bill introduce a mechanism for cohabiting couples to regulate their financial [116]affairs as well as providing a financially vulnerable cohabitant with access to apply for a number of financial reliefs, such as maintenance or a share in the family home.

Non-conjugal couples are omitted from the Bill. In Fine Gael’s civil partnership policy paper, we included reliefs for cohabiting couples in non-intimate relations. Speaking as a rural Deputy, there are situations in which two elderly brothers or sisters might have lived together all their lives and wish to look after their siblings should one predecease the other. Both the Colley report and the Law Reform Commission, LRC, report referenced non-conjugal couples, but stated that they had received “few submissions”. The Government should examine this issue. If we do not allow for relief in this regard, it would appear as if we do not consider the matter raised in those reports as an issue. Perhaps the Bill is not the most appropriate vehicle to address it, but it should be addressed in the context of further legislation. It is hardly surprising that there were few submissions, as the people that Fine Gael is seeking to protect in its policy document are not plugged into any advocacy group of which I am aware. The making of a submission to a Government report would not be easy for them, particularly given that, more often than not, they live in rural and remote parts of the country.

Both reports referred to “a lack of research in this area”. I assume it is on this basis that non-conjugal couples have been omitted from the Bill or any indicative Government report on further proposals. Difficulties present in terms of inheritance tax, succession rights and family homes. The reports have indicated that there has been insufficient research. Research is required, as some people need greater legal protection. If a lack of research is the primary obstacle to helping them, it is time that it be commissioned.

I welcome the Bill and pledge Fine Gael’s support to it. While many welcome it, others believe it does not go far enough. To those people I would say that change is incremental and I hope that full equality is not far away. Objections have been made and I have received many items of correspondence from people, some of whom may hold a genuine belief that it should be possible to allow for opt-outs in this legislation on the basis of one’s religious beliefs or otherwise. This poses a problem, as I do not know how such an opt-out could be framed, particularly for registrars. They perform a variety of statutory functions, namely, the registration of marriages, births, deaths and still births. They are statutory officers and are required to solemnise and register marriages of, for example, previously divorced people. This did not pose an issue when the divorce legislation was passed, yet people are seeking an opt-out from their responsibilities under the Bill. Were we to allow such an opt-out, we would effectively be dismantling much of our equality and anti-discrimination legislation.

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.

[117]Deputy Brendan Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  This day has been a long time coming. The recent chronology of key events leading up to it has been published in a GLEN document. In recent years, we have quickly come to this conclusion. It is heartening to have a large consensus on what needs to be done on these important social issues.

Tonight’s debate and the Bill comprise an important milestone on the road to equality, but they are not the journey’s end. Article 1 of the Universal Declaration of Human Rights states:

This basic and simple concept has consistently proven to be one of the most difficult principles to put into practice. It was proclaimed by the UN’s General Assembly on 10 December 1948. As various debates in the House this week have indicated, we are still struggling as a republic to make that simple and fundamental declaration a reality.

The Labour Party welcomes the Bill. It is not the end of the journey, but it is a long way down the path. It clearly does not go as far as the Labour Party’s Civil Unions Bill, which I twice had the honour of introducing into the House, once in the previous Dáil and once in this Dáil. The first time, it was cynically kicked to touch, but I believe it formed a basis for a consensus that has led to tonight. I am proud of my party’s role in this regard.

While the Bill before the House does not achieve equality, it gives same sex couples rights that are long overdue. It gives legal protection and recognition to same sex couples, as well as other non-traditional families. I refer to citizens of our Republic whose essence we have ignored and denied for far too long. The Bill does not provide for same sex marriage, as the Minister has said, nor could it under the Constitution, as it is currently interpreted by the courts. We are not legislating for true equality in this important measure. It is worth reflecting on the words of the Honourable Justice Michael Kirby, of the Australian high court, in his foreword to a report on this Bill produced by the Irish Council of Civil Liberties. He stated:

The argument against equality is a strange one. How can the extension of the right to marry, to more of our citizens who want to bond themselves with another human being in a loving relationship that is recognised by law, be said to undermine marriage? I assume those who believe that allowing same sex couples to marry would undermine the institution of marriage would not suggest that homosexual citizens of this nation should reconcile themselves to marriage as we understand it under the Constitution today. That would be absurd. Do such people believe that to offer marriage to same sex couples would somehow lure heterosexual people away from marriage? That would be a ludicrous suggestion. The fundamental debate on taking the final step can wait for another day. It is important to point out that this legislation is a step on that journey, rather than the end of the journey.

Given that there is such agreement across the House, I do not want to sound any note of discordance. This Bill has been produced two and a half years into the coalition between Fianna Fáil and the Green Party. I would like to remind Members of what Deputy Cuffe said on 21 February 2007, during the debate on the Labour Party’s Civil Unions Bill 2006. I agree with [118]his suggestion that “to relegate same-sex couples to some marriage-like institution is to deny them their human rights, dignity and rights as citizens of the State”. It is probable that we could build a consensus to take the final step. I do not think it should be too far away. I am sorry that legislation to provide for the option of taking the final step, even if it meant a constitutional amendment, is not before the House tonight. I do not want to sound discordant, as I have said, because the Bill before the House, which is of profound importance to thousands of our fellow citizens, should be recognised, applauded and celebrated.

The stated purpose of this legislative measure is to establish a statutory civil partnership registration scheme for same-sex couples. It sets out a range of rights, obligations and protections that are consequent on registration. It prescribes the manner in which civil partnerships may be dissolved and the conditions that may apply. The Bill also establishes a redress scheme for opposite-sex and same-sex cohabiting couples who are neither married nor registered in a civil partnership, as the case may be. The proposed redress scheme has far more limited provisions than the civil partnership provisions, or marriage as we know it. The scheme focuses primarily on addressing a number of areas in which cohabiting couples are vulnerable, such as the protection of residential tenancies and maintenance rights. In general terms, the Labour Party supports these provisions, as detailed in the Bill. It is obvious that the Labour Party will table amendments in this respect on Committee Stage. I agree with some of the points Deputy Charles Flanagan made about the lack of clarity with regard to these provisions of the Bill.

  8 o’clock

I would like to signal two particular issues that I will pursue during the Committee Stage debate. There is a need for retrospective recognition of foreign civil partnerships if one partner dies before the provisions of section 5 of this Bill become operable. We can debate and tease out the extent to which it should be retrospective — how far back we should go — on Committee Stage. Many same-sex couples who live in this jurisdiction have obtained civil partnerships in Northern Ireland since 2005, when such a legal provision was first afforded in that jurisdiction. If one party to a relationship that is legally recognised on one part of this island dies before the provisions of this Bill become law, the surviving partner may be disadvantaged for the purposes of inheritance tax, for example, or may be made ineligible for the survivors’ pension. Particular examples have been brought to my attention. I understand that dozens of same-sex couples who live in the Republic have obtained civil partnerships in Northern Ireland. A case in which the older person in a civil partnership has advanced cancer, and could die before the date on which the Minister for Justice, Equality and Law Reform signs this provision into law and thereby makes the partnership legally binding in the Republic, has been brought to the attention of the Human Rights Commission of Ireland and the Northern Ireland Human Rights Commission. If this legislation does not become law before the person in question dies, the partnership will not be recognised and the surviving partner will have no legal rights. That would be a disturbing and unfortunate consequence of our efforts. We should seek to make provision for such cases before we conclude our deliberations.

The second issue to which I would like to alert the House is a potential implication of section 4(2) of this legislation. The Bill as it stands requires at least one of the civil partners hoping to enter into a civil partnership to be domiciled in the State on the date of application. This may exclude some couples from the right to take a court action in this jurisdiction. I am advised that this residency requirement may affect couples who reside in Northern Ireland — they may have moved from this jurisdiction to formally legalise their relationship under the 2005 provisions there. If, after this measure has been enacted, they wish to argue for the recognition of their foreign partnership — the Northern Ireland partnership, in this case — they may wish to [119]have recourse to the courts in this jurisdiction. These are technical matters we can debate in some detail on Committee Stage.

I am advised that section 2 of the Marriage Act 1972 provides retrospective recognition by the State of 33 services of blessing, namely, non-civil marriages performed in the département des Hautes-Pyrenées in France — so-called “Lourdes marriages”— between citizens of Ireland which were solemnised at Lourdes between 1953 and 1960 only.

By the provisions of the 1972 Act, these non-civil marriages were deemed always to have been valid marriages and have been recognised as if they had been performed and solemnised in this State. If we can do that for a blessing at Lourdes I believe we can provide legal measures within our own jurisdiction to recognise legally binding civil partnerships entered into by Irish citizens in other jurisdictions where, up to now, those partnerships have been recognised.

I should mention another possible difficulty with section 5 that, again, was pointed out in the submission from the Irish Council for Civil Liberties. In most equivalent foreign recognition provisions, there is a general provision of recognition. For example, the UK legislation expressly provides that same-sex marriages celebrated elsewhere will be recognised as civil partnerships in the United Kingdom. Section 5 of the measure before the House leaves it to the Minister to make that determination, stating, “The Minister may, by order, declare that a class of legal relationship, entered into by two parties of the same sex, is entitled to be recognised as a civil partnership if under the law of the jurisdiction in which that legal relationship was entered into”. It enumerates a number of conditions. The essential point, however, is the first sentence, namely, the Minister “may” recognise such civil partners. It is important we should have clarity about the exercise of the authority we will divest to the Minister after the enactment of these provisions.

I will seek to address these issues on Committee Stage. I will address one major argument which Deputy Charles Flanagan touched upon that is in circulation concerning the Bill. This is a matter concerning which most of us received more e-mails than any other. They seem to have been generated because many of them were standardised. The argument was that the Civil Partnership Bill, if enacted, will introduce a law by which those whose religious convictions may prohibit them from being involved in a same-sex partnership will somehow be compelled, under duress of law or for fear of being sued, to aid or assist in a ceremony to which they have a genuine conscientious objection.

People may have regard again to the Labour Party’s Bill. In that Bill we sought to create a formal civil union which, in virtually every respect, mirrored marriage. We proposed that a solemniser would perform that union in the same way that a marriage would be solemnised. For that reason, in section 3(2) of our Bill, we included an opt-out clause that stated, “Nothing in this Act requires a registered solemniser who is not registered to solemnise a civil union if the religious body of which he or she is a member has no recognised form of ceremony for the purpose of which he or she has a conscientious objection from so doing”.

The Bill the Minister presented to the House today is quite different in context. It is different in a very significant respect. Under this Bill, a civil partnership can be entered into only in front of a civil registrar. Even if he or she wanted to, a registered solemniser, for example, a priest or minister of religion, would have no competence and no capacity to preside over or register a civil partnership as envisaged in this proposal. Therefore, the question of inserting a conscience clause is moot. It does not arise. That point has been made clear and abundant.

The point was raised by Deputy Charles Flanagan whether those who will be charged with presiding over civil partnerships, namely, officers of the HSE or old officers of the health boards who are registrars should be allowed opt out. My answer is “Certainly not”. We are not going to have a situation where officers of the State can determine they will perform this [120]function but not that one. It would be like saying that nurses and doctors could no longer give blood transfusions if they became Jehovah’s Witnesses. That is not the way a republic operates. Laws are enacted and officers of the State, paid for by the State, carry out the legislation as enacted by this House. I do not see this as being an issue. As Deputy Charles Flanagan rightly pointed out, other issues, for example, the remarriage of divorced persons which is now the civil law of the land, have not been such that people may opt out from them in the future.

There is one other issue in respect of that plethora of odd e-mails we received, namely, whether we should provide a conscience opt-out for florists, bakers or candlestickmakers or anybody else who might be offended. In these challenging financial times I do not feel there will be a conscientious impediment among florists or anybody else who provides their wares or services.

For clarity in this respect, we enacted laws as far back as 2000 to protect against discrimination with regard to orientation. In this Bill, the Minister seeks only to replicate those laws. I see no argument or basis for suggesting that florists, photographers, printers or providers of any service can be allowed to discriminate against any citizen in respect of his or her sexual orientation. I do not see any scope for that point.

I wish to move to one major deficiency, as I see it, in this Bill. Again, Deputy Charles Flanagan properly raised this point, namely, that 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. The very compelling, real and specific human case outlined to the House by Deputy Charles Flanagan underscores the importance of addressing this deficiency. It cannot be that we will allow a Bill to be enacted that is silent on this critical issue, particularly that 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. It seems to me a ludicrous notion that under our current adoption law a single person can apply to adopt but a couple, even legal partners recognised by law, will not be in a position after the enactment of this provision to adopt jointly a child, even a biological child of one of the couple. That is a major deficiency.

The Joint Committee on the Constitutional Amendment on Children has focused on a number of issues concerning the safety, well-being and best interests of children. The Minister has attended many of the meetings. It has been a very important learning process on how the Oireachtas can shape better laws to advance the rights of children. God knows that, in light of the reports published this year and previously in the Ferns diocese in my part of the country, we need far more robust protection of children.

The committee sought all-party consensus on recalibrating rights so the well-being and best interest of the child would be at the core of policy. Nobody has the right to adopt a child but a child has the right to be in the best place for himself or herself. That was the core of the Labour Party’s Bill. We determined we could not bring legislation to this House without addressing the issue of children. The way we did so was simply to recognise that the best interest of the child should be the only criterion, such that one would not give a right to anybody to adopt but give a right to the child to be in the best place for himself or herself, be that with biological parents, grandparents, foster parents of long standing or a same sex couple who would serve as loving parents to the child. The decision should be made without regard to anything other than the best interest of the child. That is what the Labour Party proposed.

[121]With regard to dependent children, our Civil Unions Bill proposed, “the rights and obligations of parties to a civil union with respect to a dependent child are the same, mutatis mutandis, as those of a married couple with respect to such a child”. A dependent child, according to our definition, was a child adopted by both parties or in relation to whom both spouses are in local parentis, or a child of either party or adopted by either party or in relation to whom either party is in loco parentis where the other party has treated the child as a member of the family where the child is under 18. The legislation also included children above that age in full-time education with a mental or physical disability “to such extent that it is not reasonably possible for the child to maintain himself or herself” independently.

A child-centred approach that mirrors the developing conclusions of the all-party committee is the right approach. I will be interested in hearing the response of the Minister to the debate to learn whether he is open to determining whether we can craft, by consensus, a provision for children in this regard.

I have spoken almost exclusively on same-sex couples but now want to discuss the part of the Bill that deals with cohabitants. The duration proposed for the legislative provisions to have effect is three years, or two if a child has resulted from the relationship. I welcome the provisions in section 171 of the Bill. Qualifying cohabitants may apply to court for a range of orders — for example, property adjustments, maintenance and pension adjustments — where the applicant is financially dependent on the other cohabitant and complies with a range of other specified requirements, as set out. This was recommended by the last All-Party Oireachtas Committee on the Constitution in the report it produced in January 2006. There may be some tweaking to be done to ensure we recognise a legal starting point for cohabitation and to ensure there is no confusion in the courts.

In truth, there are many relationships that do not involve standard marriage. We need to provide some form of support when they break down or when one of the cohabitees dies. The provisions are, by and large, good in respect of this issue. One wonders whether it is proper to enshrine them in this legislation rather than address them in conjunction with the issue Deputy Charles Flanagan raised.

Conjugal relationships are unique. It upsets and annoys me when people blur the distinction between a loving conjugal relationship and that of any pair of people living together for convenience or mutual support. It denies the essence of the relationship, which is fundamental. We should be very clear and not obfuscate on that absolute point.

We have come to an important point in the legislative process. As speedily as we can, we should enact this measure. We will crawl ever slowly to be faithful to the first article of the Universal Declaration of Human Rights which recognises the essence of the equality of every individual. We should move to Committee Stage speedily. I hope we will address consensually the issues that have been addressed on this side of the House and provide a basis for acknowledging the fundamental worth of every citizen of this Republic.

Deputy Ciarán Cuffe: Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  I wish to share my time with Deputy Gogarty.

We do not often talk about love in this House. In a week dominated by floods, pay talks and the Murphy report, it is good to turn our attention to love for a change. I am pleased we are providing real recognition of the love between adults in a committed relationship. It is enshrined in the Civil Partnership Bill.

One would be forgiven for believing this Bill is unwelcome in some quarters and that its introduction to the House, after a lengthy period of gestation and public debate, is somehow a letdown. There are those in society for whom any formal legal recognition of same-same partnership offends. They perceive civil partnerships as an affront to religious marriage, a challenge [122]to the traditional family unit of man and woman and as representative of unwise legislating. However, there are members of the gay and lesbian community for whom this Bill is a disappointment in terms of what it does not do, that is, establish full civil marriage for all, regardless of sexual orientation.

I agree with Deputy Howlin that the Bill does not go as far as he or I would like, but neither Fine Gael nor Fianna Fáil has made that commitment. Deputy Flanagan spoke eloquently but I am not aware his thoughts are shared by his party or his leader, Deputy Kenny, in the form of a policy commitment. In that regard, politics is the art of the possible and this Bill heads in the right direction to an end point on which I agree with many Deputies.

Before this Bill is labelled as an unnecessary intrusion into traditional marriage or legislative discrimination, let us take a step back and analyse the practical benefits of civil partnerships for gay and lesbian couples. Currently, same-sex partners living together in a committed loving relationship have precious little recognition and few rights and obligations. There is little more recognition in law for such arrangements than there is for flatmates living together.

The Civil Partnership Bill will recognise rights, responsibilities, safeguards and obligations for same-sex couples in a loving relationship where there were none before. These are significant, substantial changes which will make a real difference. The Bill amends more than 130 pieces of legislation and stitches the recognition of the unit of civil partnerships into the corpus of our legislation. It creates maintenance rights, so that when one civil partner is financially dependent, the other must provide for him or her. It strengthens our equality legislation and prevents discrimination against civil partners in employment as well as in the provision of goods and services.

When a civil partner presents at a hospital seeking access to see a loved one who has fallen ill, he or she will have the same rights and powers of decision as a husband or wife in such difficult circumstances. When an employer chooses to give special marital leave to newlywed employees, the same arrangements will, by law, have to be given to civil partners. When a pension scheme provides that a benefit accrues to a spouse, the same benefit will extend to a civil partner. This Bill will create legal protection and recognition where there was nothing before.

Civil partnerships will make a significant difference to the law in the area of inheritance. Currently, when a person in a same-sex relationship dies without a will, the non-marital partner has no right of claim on his or her estate. No matter how long they have been together, he or she has no claim on the inheritance of a loved one when he or she dies intestate. Civil partnerships will dramatically improve this situation. Under this Bill, a civil partner will have the same rights to an estate as a widow or widower. They will have an entitlement under law to claim a portion of the estate. This will provide a real and tangible benefit and legal protection and recognition where there was nothing before.

Civil partnerships will transform the treatment of same-sex couples for taxation and social welfare purposes, so that a couple in a civil partnership may share tax credits or a widow’s pension can be extended to a civil partner. A civil partnership will cast a legal safety net for couples who break up. It will provide surety and security during the difficult times of an illness of a loved one, when legal protection should be furthest from the mind. It will provide protection for the shared family home and give relief in cases of domestic violence and provide security of tenure in rented accommodation in succession situations. All of this will be in place where there was nothing before.

Many of the rights, obligations and responsibilities spouses enjoy will now be shared by same-sex partners. Some may characterise this Bill as an attack on traditional values or an [123]inadequate solution. Therefore, we must ask if this is a positive development. Do we not become a little more enlightened as a country which has chosen to open the door to recognition of same-sex relationships? This Bill marks substantial, purposeful progress on our equality agenda. It will be of significant practical benefit to gay and lesbian couples across this country

In addition to the rights it confers, however, the creation of civil partnerships sends important messages to those couples seeking to formalise their relationship, that is, recognition and acceptance. If a couple wishes, their partnership may be brought under the wing of the State, allowing the couple concerned to benefit from its safeguards and grow into the responsibilities it creates. In extending our body of equality legislation like this, we progress our understanding and we mature a little bit as a society.

I have received many letters and telephone calls from those not in favour of civil partnership and who do not wish to grant formal recognition to same-sex civil partnerships. Many people have a religious objection to the recognition of wholly State recognised civil partnerships. Putting aside the lack of religious linkages, I am struck by the distance some of these people put between gay couples and themselves. Are our brothers, sisters, cousins and friends in loving same-sex relationships not deserving of State recognition? Are these people not as much a part of the fabric of our society as heterosexual married couples?

Civil partnership asks for no religious blessing. It does not seek to intrude into that space nor offend its proponents. It is a matter of the State’s legal and administrative support of loving same-sex couples. Civil partnerships are not an endpoint but, rather, a significant achievement on the journey toward full marriage equality. I still believe in that end goal and the words I spoke some three years ago, but I see this Bill as progress.

We await the decision of the Supreme Court in the Zappone and Gilligan case to see in what framework the Oireachtas can proceed to legislate for civil marriage, but separate from this there are political challenges to be overcome in getting support from all sectors of society and from all parties in this House for civil marriage irrespective of gender, a position I and my party fully support and have enshrined in our party’s policy document, Valuing Families: A Policy on Marriage and Partnership Rights.

As many of those campaigning for gay marriage will acknowledge, this is not a process that happens overnight. Civil partnerships can be a significant political building block in the move toward full gay marriage; we are not engaged in zero sum game. The Civil Partnership Bill is long and complex, but ultimately it boils down something very simple, that is, the State recognising, protecting and cherishing the love between two adults, be they men or women, and this can only be a good thing.

As a Green Party member, I applaud the work my colleagues, in particular Roderic O’Gorman, put into pushing the party’s policies forward. As a campaigner I applaud the many organisations, including the Gay and Lesbian Equality Network and the Irish Council for Civil Liberties, for the work they have done to advance the cause of equality. As a legislator, I thank the Minister, Deputy Dermot Ahern, and his Department for the hard work which has brought us here. As a father, I am proud of the recognition we are giving to loving relationships, regardless of sexual orientation.

I would like to say I was a florist but Deputy Howlin got there first. All florists, if they were here this evening, would be pleased with the Bill before the House. As a liberal I am proud of the staging post we have reached on the journey towards full equality. I commend the Bill to the House.

Deputy Paul Gogarty: Information on Paul Nicholas Gogarty  Zoom on Paul Nicholas Gogarty  I will not admonish Deputy Cuffe, given the integral role he played in the party. I will not repeat what he said about the Civil Partnership Bill. I agree with his [124]comments wholeheartedly and acknowledge the progress that has been made to date and his role as justice spokesperson for the Green Party in pushing this process forward for many years. I also welcome the Minister’s key role in bringing this Bill before the House.

The Bill is, as Deputy Cuffe said, a significant milestone. As he outlined, it will provide new legal protection and recognition for same-sex couples. However, as the Green Party acknowledges, the legislation, while welcomed by many, does not go far enough.The Bill is not solely concerned with same-sex rights. It also establishes a redress scheme for opposite-sex and same-sex cohabiting couples, which was alluded to by the Minister, and makes provision for the recognition of various financial agreements.

In the eyes of the media, the Civil Partnership Bill is a key step in implementing the Government’s commitment in the programme for Government to legislate for civil partnership at the earliest possible opportunity. It is about lesbian, gay, bisexual and transgender rights and I welcome the Bill from that perspective. However, I am realistic enough to acknowledge for that tonight, this year and perhaps several years to come, the process of equal rights for same-sex couples has reached a plateau.

Even allowing for the progress made, I know and acknowledge that this causes frustration, hurt and bitter disappointment for some who would have liked the Bill to go further. I empathise with the hurt and sense of dismay at what is after all only a partial validation of people and their humanity. How long we stay at this point depends on the will of those with the power to effect legal change or to at least give people the power to effect such legal change. While there are obstacles to full marriage, these obstacles are far more political than they are legal or social. These obstacles can and should be overcome and Ireland should and will take its place as a country that cherishes all of its citizens equally regardless of sexual orientation to join progressive countries that have already done so such as The Netherlands, Belgium, Spain, Canada and South Africa.

I am disappointed that some in Government and some in Opposition would prefer that this legislation should be as far as it goes. However, same sex marriage is still very much on the agenda. I am sure this is a view shared by other colleagues in the Green Party, Fianna Fáil and across the House.

The case taken by Dr. Katherine Zappone and Dr. Ann Louise Gilligan is still before the Supreme Court, so it is still too early to tell what constitutional barriers exist terms of how marriage and family are defined under articles 40 and 41 of Bunreacht na hÉireann. However, these articles are not set in stone. It is up to those who cherish civil rights and equality to push the boundaries, to propose sensible amendments to the Constitution as required after careful deliberations and to persuade the people that such constitutional change should be supported in a referendum. This cannot happen overnight as I stated, but it would be helpful if a public commitment was given by all parties and individuals in these Houses to work together in a non-partisan way to bring about full marriage rights on an equality basis.

Progress has been painful and slow, but in today’s enlightened society it should not be. In 1983 the Supreme Court upheld the constitutionality of Ireland’s sodomy laws citing Article 41.3.1°, which states: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” Homosexuality was a criminal offence until 1993 when it was decriminalised thanks to pressure from Europe and action by the then Minister for Justice, Ms Máire Geoghegan-Quinn. The Equality Act 1998 included gay men and lesbians in its groups to be protected against discrimination. In 2001 the Law Reform Commission recommended equal taxation and inheritance rights for same-sex couples. Now, a long and lonely eight years later, we have this Bill.

[125]As this is a Second Stage debate I want to refer to conscientious objection clause that others have mentioned. I am glad that no solace has been given to those who want to discriminate against same-sex couples on the grounds of their differing moral or religious beliefs. Any beliefs expressed in such a public way would be in breach of the Equal Status Act in any event. While Christianity, Islam or other religions can refuse to marry a couple in the eyes of God, no one should or can refuse to provide registration functions in a civil capacity or any services at a civil ceremony. Deputy Howlin dealt with that matter in some detail. Some Members in these Houses may table amendments and I hope they are given short shrift.

Speaking of religion, we could have come much further were it not for the views of religious organisations. For example, the Catholic church has long opposed homosexuality and lesbian, gay, bisexual and transgender rights. Cardinal Seán Brady of the Archdiocese of Armagh has gone so far as to threaten the State with legal action if it proceeded with the Civil Partnership Bill. He has stated that “those who are committed to the probity of the Constitution, to the moral integrity of the Word of God and to the precious human value of marriage between a man and a woman as the foundation of society may have to pursue all avenues of legal and democratic challenge to the published legislation”. It is a pity that at this time the same moral integrity, probity and tenaciousness was not put into tackling the systematic abuse by those in the institution of the Catholic church.

However, let us give credit where it is due. I was not in a position to contribute to statements on the Murphy report, but I welcome Archbishop Martin’s unequivocal statements regarding those who have questions to answer. I was also happy that Cardinal Brady this week said that he was shocked and ashamed by details of what happened in the Dublin Archdiocese. He apologised to all those who were hurt and extended the apology to all the people of Ireland that the abuse was covered up to protect the reputation of the Church. He said:

This obligation to the civil law by Catholics should also apply to any civil laws passed in this House and no obstruction should be put in the way of bringing civil marriage into Ireland. The same empathy and concern for shown for sexual abuse victims this week should also extend to the other victims in society. Deputy Cuffe spoke of our brothers and sisters and other family members who were born with homosexuality, bisexuality or transgender. I believe that is the way they are born and that should be respected. Everyone should be equal under the eyes of the State. If a person is born with a certain inclination, that should be respected. Unfortunately it has not been respected under the eyes of the church and has put pressure on those who are Catholic legislators to be obstructionist. In that context the bible quotes Jesus as saying “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s”. If people believe that same-sex marriage is wrong in the eyes of God, let not the church marry people under the eyes of God. However, the State is different and people should have the right to be equal under the eyes of the State if we value our brethren. Therefore it is not hypocritical for the church to take a more Christian view. I believe it is a truly Christian thing to do.

As I stated earlier I welcome the Bill, but it should be a short-term sticking plaster. How quick it is improved upon depends on the level of basic respect and charity shown by those whose religious convictions lead them to believe that homosexuality — the way people are born — is somehow wrong. The question also remains as to whether our society is mature enough to amend our Constitution to allow for same-sex couples to marry in the eyes of the State. We have come a long way on this matter and much more needs to be done. At this stage the people are sufficiently mature and human to allow for same-sex marriage. Whether people are given such a choice in a referendum very much depends on political will. Whatever consti[126]tutional issues exist can be overcome if there is the political will. I urge all elected representatives in the Dáil and Seanad to press for further progress to introduce same-sex marriage as quickly as possible.

Deputy Catherine Byrne: Information on Catherine Byrne  Zoom on Catherine Byrne  I welcome the Bill, which has been a long time coming. The road to equality for cohabiting couples, and for the gay and lesbian community in Ireland has been a long one, and this is another important step in the right direction. Getting to this stage has been a tough battle and, for me, it represents a watershed in Irish society.

There has been considerable debate and protest about this Bill, and we need to clarify that this legislation is about giving legal recognition to cohabiting couples of same sex and of opposite sex, and allowing for the registration of civil partnerships as well as home protection, succession and pension rights.

When we look at the current system, and the lack of real recognition given to cohabiting couples by the State, we have to admit that elements of this Bill are ground-breaking. It makes great advances as regards protections for cohabiting couples, which are long overdue. Modern Ireland is a very different place and cohabitation has become the norm. There are currently more than 120,000 cohabiting couples in Ireland but legally, they have very few rights. These men and women have little or no legal protection when it comes to the break-up of a relationship or death of a partner. That is why it is so important to legislate for civil partnerships. It will help to resolve complex legal issues which face many cohabitants, whether they are same-sex or opposite sex. It will help them to regulate their financial affairs and benefit from pension schemes in respect of their civil partners, which was only ever available to a spouse in the past. The Bill also gives civil partners protection under domestic violence legislation, which is a very welcome addition.

While I commend this Bill for what it sets out to achieve, I believe it also neglects some very important aspects of civil partnership. Although the Bill will give a surviving civil partner the same succession or inheritance rights as a spouse, it does not address the issue of friends or siblings living together and does not give them any legal protections. This is a lost opportunity to help many family members to sort out complicated financial affairs. To give one example, there are many elderly siblings sharing a family home in this country without any proper legal claim over the property. This is especially relevant in rural areas, where farms are passed down through generations and the names on the deeds may never have been changed. There have been cases in which the death of one sibling has left major uncertainty about inheritance and ownership. This needs to be regulated in order to avoid bitter legal battles between relatives over property.

The UN Commission on Human Rights has voiced its concern about the lack of detail concerning the tax and social welfare implications of this Bill. I understand the Bill will allow cohabiting couples to avail of the same legal rights and entitlements as married couples in the areas of taxation and social welfare. However, this is not a money bill, and therefore separate legislation is needed in the form of new finance and social welfare Bills to give a legal basis to the new tax and social welfare entitlements for couples in civil partnerships. There can be no delay in implementing this legislation. These people have waited long enough.

The Bill does not refer in any real way to the custody and guardianship of children of cohabiting couples. There is no legal certainty regarding where these children stand if their parents split up and maintenance is to be paid, or if a parent dies. The majority of these children are in loving homes and their happiness and welfare must be a priority. This is a complex area which needs to be dealt with and which will throw up a wide variety of problems for children and parents in years to come if their status is not addressed in a legal context now.

[127]Although this Bill is not about marriage, I can understand the argument made by many different interest groups for same-sex marriage. Many people feel the provision of civil partnership does not go far enough, and this is frustrating for many couples who love each other and feel this Bill does not grant them full equality through marriage. However, the Bill is a legal text. Sadly, it does not concern itself with feelings, love or the commitment made by one person to another. When it comes to love and commitment, who am I, and who are we in this House, to judge how people live their private lives or what is deemed to be acceptable? We are all entitled to our privacy and cohabiting couples in committed same-sex relationships deserve as much respect as heterosexual couples.

It is important to realise that the Bill is a major step forward in recognising the increasing number of same-sex couples in Ireland. I do not agree with the claim that this Bill only goes halfway towards equality for gay couples. Given the fact that this country that has traditionally been very conservative about homosexuality, we must take one step at a time while ensuring that equal rights are always at the top of our agenda. Countries such as Sweden, Norway, Belgium and the Netherlands introduced civil partnerships a number of years before civil marriage. This happened gradually, and has been very successful.

Some people feel strongly that the failure to introduce same-sex marriage in the Bill is discrimination. I wish to make it clear that I and the Fine Gael Party do not support discrimination in any form, nor do we support any measures which would allow discrimination and marginalisation to exist in our society. Furthermore, I do not agree with people who say the Bill undermines the institution of the family and the values surrounding having children. They need to realise that it is not who we love but how we love that is important.

I recently met a man who had lost his life partner. They had been together for more than 30 years. Sadly, the man’s partner had a massive heart attack and was rushed to hospital. At his bedside, the man asked whether he had the legal right to switch off his partner’s life support machine and was told he did not. A long-lost relative had to be found in Australia and brought home to make the decision that this man’s partner, a man with whom he had shared his life, his business and a loving relationship, had no right to make.

If the Bill is passed without amendments and without including the missing aspects I have just outlined, it will deny cohabiting couples many of the basic human and civil rights that I as a married woman enjoy. Therein lies the real inequality.

Debate adjourned.


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