Wednesday, 13 July 2011
Seanad Éireann Debate
Minister of State at the Department of Finance (Deputy Brian Hayes): As Senators will be aware, this is a single issue Bill which is designed to provide for the necessary changes to tax legislation and follows on from the enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2010, more commonly referred to as the civil partnership Act which received overwhelming support in both Houses when passed last year. It was milestone legislation——
Deputy Brian Hayes: ——in that it received not only the support of both Houses but also the collective support of apolitical opinion far and wide across the Houses. The manner in which the legislation was progressed through the Houses marked a good day for the Oireachtas in dealing with an outstanding issue that had been left to one side for many years.
It is a convention which I support that tax law follows general law in the social sphere. In this case, the Bill simply transposes into tax law the provisions of the civil partnership Act. It sets out the various rights, entitlements and obligations that will apply to the taxation treatment of civil partners and cohabitants.
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was historic because it facilitated the recognition of same sex relationships for the first time though a scheme that allowed the parties to declare their allegiance to each other formally and to register their partnership which would be recognised by the State. This official registration brought with it a number of duties and responsibilities for the people involved. While many have dwelt on the changes brought about by the recognition of same sex relationships, the Act also introduced provisions to address the position of cohabiting couples, both same sex and opposite sex couples, where the relationships ended. The redress scheme established in the Act provided a safety net for an economically dependent cohabitant at the end of the relationship, whether by separation or death.
We committed ourselves in the programme for Government to enact any necessary follow-on legislation from the civil partnership Act. The Bill deals with the tax changes necessary to align tax law with general law. It is complex, in so far as it makes necessary amendments to a large number of areas of the tax code. Registered civil partners will receive the same tax treatment as married couples in respect of income tax, stamp duty, capital acquisitions tax, capital gains tax and VAT.
They will be able to avail of the tax bands and tax credits available to married couples. The Bill also provides for similar tax treatment where there is a transfer of property by gift or inheritance for capital taxes and stamp duty purposes.
As I mentioned, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 also legislated for a redress scheme for cohabiting couples who chose not to marry or register a civil partnership. The redress scheme provides protection in law for long-term cohabiting couples and provides safeguards for an economically dependent cohabitant where a relationship ended by separation or on death. The Bill provides for the tax changes arising from this. For example, in the case of a transfer of property on foot of a court decision under the redress scheme, the transfer will not now be liable to stamp duty. It will also mean the donor of the property will not have a capital gains tax liability on the transfer of the property and that the beneficiary will not be liable to capital acquisitions tax. Without this change, the former cohabiting couple would have been deemed as “unconnected” and subject to full stamp duty, capital gains tax and capital acquisitions tax on transfers of property arising from a separation. A clear anomaly arose in that case which is dealt with in the legislation before Senators today. In addition, if court ordered maintenance payments are made to a former cohabitant who was financially dependent, these will be subject to income tax relief for the person making the payments.
The changes under the Bill will be effective for the year of assessment 2011 and subsequent years. Inheritance tax, gift tax and stamp duty reliefs will apply as and from 1 January 2011. For example, as indicated previously, if a civil partnership was registered in April 2011, the couple will be considered for civil partnership income tax treatment from the date of registration of civil partnership, not from the date of enactment of the Bill. This is in line with the treatment of persons getting married in the usual manner.
The Bill is short and the detail of the tax changes are set out in the Schedules. There are five sections and four Schedules. Sections 1 to 4, inclusive, have related Schedules which deal with the various aspects of the tax code applicable. Section 1 deals with income tax and capital gains tax; section 2 deals with stamp duty; section 3 deals with capital acquisitions tax; section 4 deals with VAT; and section 5 deals with the Short Title, construction and commencement of the Bill.
Section 1 and the related Schedule 1 deal with the income tax treatment of civil partners and the various assessment options available to them. These options are joint assessment, separate assessment or separate treatment. I will outline for Senators what this means in more detail. A couple who are in a registered civil partnership will be deemed to have elected for joint assessment in the absence of an election to the contrary. Under joint assessment, one partner is chargeable to tax, not alone on his or her own total income but also on the total income of the other civil partner. The civil partner who is chargeable to tax on the income of both individuals is known as the “nominated civil partner”.
Under separate assessment, each civil partner is assessed on his or her own income with allowances and reliefs divided between the civil partners. Separate assessment is also known as “separate assessment within joint assessment” as one civil partner’s unused allowances, reliefs and rate bands may be transferred to the other civil partner. It is the exact same position for married couples in tax law treatment. All this does is extend to civil partners, where their relationship has been registered in law, the same application as in other areas. Under separate treatment, each civil partner is treated for tax purposes as if he or she continued to be single.
The section also deals with maintenance payments for civil partners living apart, and the adaptation of certain provisions to allow for the joint assessment of civil partners living apart or whose partnership has been dissolved or annulled. It also deals with the assessment of civil partners for capital gains tax purposes. It sets out the method of joint assessment, makes provision for applications for separate assessment and provides rules for the transfer between civil partners of unutilised capital losses. As I stated, all of the above provisions follow the practices applicable to and entitlements of married couples.
The section deals with the income tax treatment of a cohabitant in respect of maintenance payments from a former partner where the relationship has ended. As I said, in such cases the person paying the maintenance will have income tax relief in respect of the payment and the person receiving the payment will be liable to income tax on the payment.
Section 2 and the related Schedule 2 give effect to the changes necessary to the Stamp Duties Consolidation Act 1999. In future transfers of property between civil partners will be free from stamp duty in the same way as a transfer between a married couple. The new section to be inserted in the Stamp Duties Consolidation Act 1999 will provide that stamp duty shall not be chargeable on an instrument executed after 1 January 2011 where property is being transferred on foot of a property adjustment order made following the breakdown of a cohabiting relationship under section 174 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
Section 3 and the related Schedule 3 give effect to the changes necessary to the Capital Acquisitions Tax Consolidation Act 2003 which will mean that the same CAT reliefs and thresholds available to married couples will now also be available to civil partners. Likewise, children of a civil partner, including children of the other civil partner, will be entitled to the same CAT thresholds as children of married persons.
The section also provides for an exemption from gift and inheritance tax in respect of a court order made under Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 when a cohabiting relationship ends. As a result, any property transferred, where ordered by the courts, on the cessation of a relationship will not attract a CAT charge for the person receiving the property.
Section 4 and the related Schedule 4 give effect to a single change necessary to the Value-Added Tax Consolidation Act 2010. The change is in relation to the option to tax letting of immovable goods by extending the definition of “connected persons” to include the civil partner of an individual and the civil partner of a relative of the individual or his or her civil partner.
There was widespread support for the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 when it was debated and passed both in Dáil Éireann and Seanad Éireann last year. The Bill before the Seanad today will help to implement the Act as it relates to taxation and I hope all Senators can fully support it.
It is worth saying the previous Government included these changes in the finance Bill as proposed coming towards the end of the life of the previous Dáil, but given the time constraints at the time, the relevant sections were not continued. All the Bill does is bring forth these provisions again to give effect to the tax changes required to give civil partners the same rights in Irish tax law as married persons. It is a simple and logical extension of legislation already enacted by both Houses of the Oireachtas. I commend the provisions contained in the Bill to the House.
I thank the Minister of State for the way in which he concluded his remarks. This is a good day for the State and citizens. For a committed constitutional republican, as I am, a true republic respects the rights and dignity of all its citizens, regardless of their views and preferences. This legislation predates 2007. Commitments in this respect were given by all parties prior to the 2007 election and they formed part of the 2007 programme for Government. I had many engagements with groups who supported civil partnership legislation and with people, who had strongly held views on it, who were opposed to it. Those discussions were important because such change takes time. On the other side, there are people who believe this legislation does not go far enough in terms of civil partnerships, and that is understood also.
This legislation is a big step forward for this country. We only have to look back to the early 1990s when certain laws providing for the criminalisation of homosexuality had to be removed. We have moved a long way since then. Groups such as the Gay and Lesbian Equality Network, GLEN, and other groups I have met were realistic about what could be done.
The tax changes in this Bill, which we fully support, are welcome. The Minister of State has reminded me of a few dark days politically between the last budget and the fall of the previous Government. It was a regret of mine that this legislation could not have been passed at that stage. I am aware that former Members of the Seanad and Dáil were very involved in the civil partnership legislation as well as, to be fair, members of the Green Party who are no longer represented here or in the Dáil who held strong beliefs in this respect which were important to them. Everyone must be commended on the way this debate was handled since 2007 and that was a sign that Ireland was maturing and becoming a real republic. There are many areas in our society that we must improve, and this is a step in that direction. It may not be a step as far as some people want to go but it gives us a basis from which we can move forward. In most instances over recent years the manner in which this debate was held was welcome. It was done in a mature fashion.
In regard to civil partnerships or marriages in other jurisdictions — this question may have been dealt with already — and the retrospective nature of this legislation in terms of tax and returns for previous tax years, how will that be dealt with in the case of a person who moves to this State having entered into a civil partnership or a civil marriage in another jurisdiction? In what way is such provision encompassed in this legislation?
The Minister of State specifically mentioned maintenance payments in his contribution. I might be straying from the content of the Bill but the Minister of State might be able to assist me on how the tax treatment of maintenance payments will be dealt with. Has that issue been examined? I am aware that his colleague, the Minister for Social Protection, is examining this issue in terms of social welfare recipients who are not remitting maintenance payments agreed under court orders. If there is a dissolution of a civil partnership, no more than a judicial separation or divorce in a marriage, how far is the Government down the line of ensuring that the requirements to remit maintenance payments agreed in a court order are followed through? The issue of maintenance is not specifically covered in this Bill but it is important that the Minister of State mentioned maintenance payments in the context of civil partnerships. The most commonly used phrase in this context is the “deadbeat dad” and it is a major issue. We all see instances of this in our constituencies where people can still claim benefit from the State and not live up to their obligations to their family, partner or children. I would be interested to hear how far the Government has advanced in addressing that issue.
It is crucial that all views have been respected in this legislation and the Government should continue along that line. Some people had concerns about provision for civil partnerships and the manner in which that has been done has ensured that this process has moved forward.
We support the Bill and have not proposed any amendment to it in the Seanad. This is not a political issue. The legislation on this area was introduced by a previous Government and it had cross-party support. I am glad the Government has seen fit to bring forward this legislation early in its terms of office to complete the process of civil partnerships, enshrine them in law and ensure that same sex couples who enter civil partnerships will have the same tax treatment as married couples. That is crucial. We in this state, this republic, must work together particularly in these difficult times. We must put our differences aside, be they social or economic, and work together. There are still many areas where there is inequality and there are some provisions in the programme for Government to deal with it. The Government will have the support of the Fianna Fáil group in addressing inequality and ensuring that people are not marginalised in our society. This Parliament or Oireachtas, that is, the Seanad and the Dáil, has a major role in addressing that issue. A great deal of our time has been spent dealing with economic matters, rightly so. I was going to use this opportunity to ask the Minister of State questions on other matters but I will not do so because it is appropriate that the time be devoted specifically to the issue of civil partnerships and this legislation. We are very much caught up with the economic difficulties we and the rest of the European community face. In dealing with those financial matters, we should not forgot about our citizens, what is important to them, how we can improve their quality of life and how we can address inequalities. I thank the Minister of State for coming to the House. He has the full support of the Fianna Fáil group in this House on the Bill.
Senator Michael D’Arcy: I hate to stand up after two Members have spoken to say effectively the same thing. It is not often that this happens. I was in the Dáil with the Minister of State, Deputy Hayes, and Senator O’Brien, then a Deputy, when the civil partnership legislation went through and I saw the cross-party consensus for it. It was a genuine consensus rather than, as is sometimes the case, a pretence of consensus. On that occasion everyone wanted the issue to be dealt with. If I recall correctly, a Labour Party Private Members’ Bill on this issue was rejected and following that the civil partnership Bill was passed towards the end of the last Dáil. We are now giving taxation effect to the consensus that occurred on that occasion.
Like Senator O’Brien, there are many issues outside the remit of this Bill that I could raise with the Minister of State, but it would not be appropriate for me to do so. However, I wish to raise a few minor issues. Some people benefited in the past on the basis that there was no civil partnership legislation or legislation to give taxation effect to it in place in that they walked away from their obligations and left behind a partner or a partner and children who were in need of maintenance. Those people had that benefit because the Legislature had not done anything in this respect. There was no such legislation on the Statute Book. Those people were, effectively, given a free hand to choose to walk away if they wanted to. This legislation ties up that lacuna in law for people who found themselves in such a difficult vulnerable position and I am glad about that.
I am also glad that the Bill makes provision for long-term cohabiting couples. While there was a good deal of focus on same sex couples, it is good that people who were cohabiting were not excluded in this Bill. I touched on the issue of maintenance payments. It is one of the biggest issues and I am glad it is concluded.
I am concerned about the tax elements. While this is a short Bill and much of the detail is in the Schedule to it, I am hopeful that there are no loopholes in it. I hope the Department of Finance has gone through this with a fine toothcomb to ensure people cannot employ the best tax lawyers in the country to find loopholes. The ability to locate such loopholes is not in my sphere of expertise nor is it within the ability of most Members of these Houses. However, certain taxation law firms specialise in this sort of activity. If the Bill is discovered to contain loopholes I ask that they be closed quickly rather than pursuing them through the courts. Far too often, the Legislature does not act until a case comes before the courts.
On the day we were downgraded by Moody’s, it would be remiss of me not to discuss our current position. Moody’s is one of three or four international organisations which rate nations, banks and businesses but the biggest players are the members of the International Swaps and Derivatives Association and they will be the people who determine whether a credit default occurs. While the markets may react to the ratings agencies, the latter are not the major players. In the context of tax law, it is appropriate to point out these companies are not regulated. They are the same companies which described the banks as wonderful prior to the international financial collapse. They operate as they see fit even though their views have significant implications for markets and governments. These companies must be regulated at national, European and global levels.
Senator Katherine Zappone: I am aware that the Bill was received very favourably and with little comment or debate in the Dáil and select committee. As the Minister of State has noted in his opening statement, it is viewed as progressive and a complement to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 in terms of providing for the taxation implications of that Act. My fellow Senators have described the legislation in similar terms. I respect the right of Members to hold these views and, although they are not views that I share, I understand I am in the minority in this regard.
I do not think an equivalence of rights has been achieved in the 2010 Act. It legislated for legal discrimination and, as such, I do not describe the Act as a stepping stone to equality for lesbian and gay couples. I am also cognisant of the fact that a significant number of couples have already availed of the civil partnership registration process and I acknowledge this is an important event in their lives. I have had the privilege of attending a number of these ceremonies and they are very moving. For some, it is an opportunity to recognise their lifelong love in public, to give visibility to the normality of homosexual identity and speak eloquently about Ireland as moving towards the “republic of love”. The latter phrase, which comes from a poem by Michael Murphy for his partner, Terry O’Sullivan, was one of the most recent attempts to put into language the achievements of this legislation. Others, however, have in effect conducted this public ceremony in private because they are still fearful of inviting their mothers, fathers or other family members in case of rejection. At the same time, they undergo the process because they desire the protection that accompanies this statutory institution.
We are living in a land of paradox as a result of the 2010 Act. It is not a land of equality. We should not forget that only married couples and their children can legally be deemed families and civil partners and their children do not yet benefit from the constitutional protection of the family. I recognise that many couples are availing of this institution for the key aim of gaining protections and benefits that are similar to those of married couples. There is no way of getting these protections other than by entering into civil partnership.
I put aside the differences to which Senator Darragh O’Brien referred and I spent a lengthy period reviewing the Bill in order to offer the Government constructive suggestions which would ensure the taxation protections and benefits for civil partners are as similar to marriage as possible. The Bill is technical in nature and I ask Members to bear with me because some of the comments I shall now make traverse into that technical domain. I am not an expert in taxation law but I have had the support of someone with experience in this area in reviewing aspects of the Bill. I agree with Senator Michael D’Arcy on the importance of applying a fine toothcomb to the legislation.
My question is whether the Bill does what it sets out to do, namely, provide exactly the same tax treatment for civil partners as for married couples under all tax categories. Furthermore, are children of civil partners afforded the same treatment as the children of married couples? From an initial reading of the Bill, it appears this equivalence is achieved but, on closer scrutiny and with the support of research conducted by the public interest law initiative of FLAC at the request of the marriage equality organisation, some of the amendments contained in the Bill do not achieve full equivalence between civil partners and married couples or for the children being raised within the respective institutional arrangements. Furthermore, there appear to be some gaps in the range of amendments required in the tax code if full equivalence is to be achieved. The lack of same tax treatment between civil partners and married couples may require amendments to be introduced.
In regard to the insertion of the new Part 44A to be inserted into the Taxes Consolidation Act 1997, chapter 1, section 1031J, it is still easier for a married couple to avail of more favourable tax treatment on the break-up of their marriage than is the case for civil partners. Maintenance payments for a spouse in marriage attract tax relief at the time of a deed of separation or judicial separation. In the case of civil partners, tax relief on maintenance payments is not possible until statutory dissolution or annulment. It takes longer to get a statutory dissolution or annulment than to put in place a deed. A deed takes however long the negotiations last, whereas the statutory dissolution requires a two-year waiting period. In order to ensure the same treatment, section 1031J needs to be amended.
In respect of chapter 1, section 1031A, the Bill inserts a new Part into the 1997 Act in order to deal with the assessment of civil partners for income tax purposes. The new section mirrors how spouses are assessed in the Taxes Consolidation Act. The tax treatment for income tax purposes depends on whether spouses or civil partners are living together or separated. The Minister of State referred to this in his remarks. Within this section it appears that the definitions of what constitutes living together for civil partners are different.
For the purposes of tax legislation, a married couple can be considered separated, even if they are living together under the same roof. That is in case law. If a married couple’s relationship breaks down — which happens more today than it did in the past — but given difficult financial circumstances they cannot maintain two separate dwellings and are forced to live together, they can still be considered separate for income tax purposes. I presume that if people are separated they want to be considered as such for tax purposes and issues consequent to that. With the section as it stands, if civil partners are separated but still living together under the same roof, they would not be considered separated for income tax purposes. There does not appear to be parity with married couples in this respect.
A third example may highlight a gap. Within the body of tax legislation, the definition of “relative” and “family” are often used. The meaning of these words in the tax code is not technical and refers to ordinary meaning. The ordinary meanings of these words are as contained in the Oxford English Dictionary, which the Revenue Commissioners rely on for definitions, and they turn on blood or marriage. To ensure relatives and families of civil partners are recognised within the tax code, it seems we require an amendment to bring them under the ordinary meaning.
The different cases I have outlined, if they are accepted, may require amendments to achieve what the Government is setting out to do. My next example moves to the issue of children and maintenance arrangements. This is a little more technical but I will put it as simply as I can. With regard to maintenance arrangements for children of a civil partnership, or even as such payments relate to civil partners, a more favourable tax treatment for married couples kicks in with regard to maintenance payments after the breakdown of a marriage. This does not come about as quickly for civil partners, who must get an order of the court to trigger that favourable tax treatment; married couples do not require this.
Moving to the issue of children, there is a more favourable tax regime for maintenance payments, although that is not reflected in the Bill as it stands. In this regard it might be helpful to recall that the Civil Partnership Act does not place any statutory obligation on civil partners to maintain the child or children of a civil partner in the case of a marriage breakdown. Is that the reason there cannot be the same favourable tax treatment for the children of civil partners in this Bill? If that is the case it is important to note it.
Senator Ivana Bacik: I begin by welcoming the Minister of State to the House, as others have, and the Bill, which as the Minister of State has mentioned is a single issue Bill. It was prepared under the last Government and supported by both sides of the House. I also declare my interests in the issues we are discussing as I am junior counsel in the case being taken by my dear friend and colleague, Senator Zappone, and her wife Ann Louise Gilligan. I pay tribute to Senator Zappone and her partner for their immense bravery in taking the case, which has been ground-breaking in seeking recognition of same-sex marriage.
My comments in welcoming this Bill are tempered by my view and that of the Labour Party that neither the Bill nor the Civil Partnership Act provides for full equality. The Bill will bring about a separate regime, with similar and in some cases equivalent rights and obligations as married couples for civil partners, but it does not amount to the same thing. On Second Stage with the Civil Partnership Bill I welcomed the legislation, which the Labour Party supported, but I made the point that the difference between civil partnership and marriage matters. There is a symbolic legal reason as civil partnerships are not the same as marriage in law and are seen as a different entity or institution. There is also a difference in practice, and Senator Zappone has very usefully described to us some of the differences which have a practical impact.
The key difference in the Civil Partnership Act, reflected in the amendments in this Finance Bill, is the absence of recognition of rights and responsibilities vis à vis the children of gay couples. There was a great deal of debate in the Seanad and among the wider public when the Civil Partnership Act was passing through both Houses. It is very regrettable that there is not more provision for children of civil partners. I hope the Government will pass follow-on legislation. The Minister of State indicated that this is a necessary addition to the civil partnership legislation. I hope we will see more to deal with children of civil partners and the rights and responsibilities between children and civil partners.
I do not want my remarks to take away from the positive impact of the Bill. Others have alluded to the ceremonies which have taken place here, where people have entered civil partnerships since April. Like Senator Zappone I have attended some of these and they are wonderful celebratory occasions. I am sure all of us would like to congratulate those people who have taken the plunge and entered civil partnerships in accordance with the Act. We all welcome the point made by the Minister of State that this Bill, when passed, will apply to those already registered to have entered civil partnerships. They will be considered for tax treatment from the date of registration of civil partnership rather than the enactment of the Bill. It is an important protection which should be made clear to people.
Senator Darragh O’Brien asked a question of the Minister of State about those who entered marriages or civil partnerships abroad and if they would be recognised under the Bill. Under the Civil Partnership Act provisions, it is made clear that those who entered same-sex marriage or civil partnership abroad would be recognised as civil partners here. Many of us viewed that as unsatisfactory in that people who have entered marriage in one of the many countries where same-sex marriage is recognised would have their marriage downgraded, effectively, to a civil partnership under Irish law. I hope we can return to that issue in future legislation.
I intend these remarks to be constructive and do not want them to detract from the overall impact of this Bill, which will have a very important practical protective effect on civil partners and qualified cohabitants. It was often overlooked in debates on the Civil Partnership Act that it also applied to qualified same-sex and opposite-sex cohabitants where the relationships broke down. That part of the Act offers very important protections to dependent cohabitants who previously had no real protection in law.
Others have alluded to the very important point that the Civil Partnership Act had cross-party support in both Houses. I am the only person to speak so far who was a Member of the Seanad during the last term when we debated the Civil Partnership Bill. It was a very proud time for me and Senator Norris, who pioneered the introduction of a civil partnership Bill as a Private Members’ Bill. It was regrettable that we did not have unanimous support in the House, although there was unanimous support in the Dáil.
Senator Ivana Bacik: In this House there were some dissenting voices but we have moved beyond that. It is very clear that the Civil Partnership Act and the necessary amendments following it — including this Finance Bill — will now achieve unanimous support. I have not heard any dissenting voices, which is very important.
I will refer to a couple of other points which may go beyond the direct import of the Bill. As Senator Michael D’Arcy has already gone that way I believe I can follow. This Finance Bill will make the necessary technical changes to ensure equivalent protection and responsibilities for civil partners in the tax code. We are all grateful to Senator Zappone and the MarriagEquality organisation for putting forward some points which may need further review to ensure that as close an equivalence as possible is achieved between civil partnership and marriage in the tax code. I want to make a more general point on the same theme, but it goes somewhat beyond the scheme of this Bill. The Government needs to look beyond the categories of married couples, civil partners and qualified cohabitants. It should review the protections given and the definition of “family” in the Constitution. It is a matter of some concern for many people that although family forms and units well beyond the family based on marriage are recognised in our legislation and in our social welfare and tax codes, the family based on marriage remains the only family that is protected under Article 41 of the Constitution. One of the key Labour Party policies to be incorporated into the programme for Government involves the establishment of a constitutional convention to examine constitutional reform generally. I hope that during the convention process, we will look at how best to protect and celebrate the diverse forms of family life that exist in the State at present. It is clear that the children of gay families deserve protection and recognition. That can be provided for through legislation. We need to look beyond the institution of marriage as a basis or a constitutional foundation for the families we support in the Constitution.
Apart from the big issue, that is examining the constitutional definition of “family”, we need to consider other legislative changes needed to protect different forms of family relationship in Ireland. Some glaring gaps in our legislation have been identified but not acted upon. I hope this Government will be able to take action. I refer, for example, to issues relating to children born through surrogacy to gay and straight parents. They currently exist in a serious legal vacuum. This is not an abstract point. When I spoke to a few colleagues, I was interested to learn I am not the only Member who has been getting representations from couples whose children have been born through surrogacy, or are about to have children born through surrogacy. The law is not clear on the status of their children in law, or their status as parents in law. We need to tackle that issue and provide for the regulation of assisted human reproduction in general. The Commission on Assisted Human Reproduction produced an excellent report on the latter question. I know it is outside the Minister of State’s brief, but I hope the Minister for Health will move on this during the lifetime of the Government. I know his officials have already been involved in drafting proposals. A predecessor of mine, Dr. Mary Henry, prepared draft legislation when she was a Member of this House.
We can do a great deal during the Government’s term of office despite the immense financial constraints under which we are operating, as alluded to by Senator Michael D’Arcy. We can do an immense amount to offer greater protection to different forms of family life. I see this Bill as a stepping stone or staging post on the way to true equality for different family forms. Although I welcome the Bill, it is not enough. We need to introduce further follow-on legislation and make constitutional changes to ensure we give all forms of family life protection that is as strong as possible.
Senator Thomas Byrne: Today’s debate brings to mind a meeting of the Fianna Fáil Parliamentary Party, when the Leas-Chathaoirleach and I were at the vanguard in supporting the civil partnership legislation. While the legalisation of homosexuality was introduced in 1993 on foot of Senator Norris’s legal action, it is a point of pride for us that our party implemented it and introduced the civil partnership Bill. We have been criticised in some quarters of the media for attempting to portray Fianna Fáil as a new liberal party, but I suggest we are doing what we have always done, which is to try to be at the vanguard of social change and to recognise all forms of human and family life in society.
Regardless of opinion, it is important to recognise that dissenting voices are entitled to be heard. I do not agree with other people on everything. I am sometimes conflicted on the issue of marriage equality. When I sit around the table at meetings of Ógra Fianna Fáil — I am 34 and I am the chairman — I am often the only person with even slight reservations about marriage equality. On such occasions, it strikes me that we need to bring the main party policy on the matter into line with that of Ógra Fianna Fáil, which is that full marriage equality should be provided for.
Many of us have been on journeys as we have considered our position on this issue. Mr. Justice Kennedy of the US Supreme Court was here a few weeks ago. His journey on this issue was instrumental in striking down anti-sodomy laws in the United States. He was part of the majority that retained these laws in the 1980s. I do not know if Senator Zappone mentioned that because I did not listen to the entire debate. He changed his mind on the issue in the context of a more recent US Supreme Court case. That allowed the US to bring its laws forward after being about 20 years behind us. Obviously, the practice was not uniform throughout the US.
The Irish people have been on a journey with regard to this issue. They are becoming much more liberal in this respect. They are much more cognisant of those around them. As we have a more open society now, people do not hide matters and are not as afraid to “come out”. People throughout the country see their own family members entering into relationships and have no difficulty with it. Society has changed and is changing. It might not be ready for marriage equality yet, but that issue will undoubtedly be brought to the fore. When my colleague, Senator Power, advocated full marriage equality last week, it caused some controversy within Fianna Fáil, in the media and among other representative groups. She is entitled to her opinion, an opinion which is becoming more and more the norm.
The only logical answer I can give those who argue that we must stop at civil partnership, and go no further, is to say that marriage equality would not endanger family life or marriage. I see no threat to my family from someone else being allowed to enter into a relationship and to secure for it the same status as my relationship. My view is that it has nothing to do with my family. I suggest to those who constantly make the point that marriage equality would pose some serious threat to family life that we should provide more practical supports to all families through the tax code. People with children need general practical help and support to help them to overcome their difficulties. Some people suggest that we can protect families by preventing the liberalisation of laws and the introduction of marriage equality. They forget about the real problems and common struggles faced by ordinary families — gay couples or homosexual couples, with or without children — on a daily basis.
Fianna Fáil is proud to say this Bill was part of its budgetary plans in the aftermath of the passing of the civil partnership Bill. There was dissent in my party and in Fine Gael when that legislation was being considered. Some members of Fine Gael expressed their dissent to me. They are entitled to their views. The measure before the House this afternoon was provided for in the last Fianna Fáil budget. Its introduction was delayed because the Green Party decided to pull out of government. It is being passed now, thank God, and is supported by Fianna Fáil.
Senator Colm Burke: I welcome this Bill. I also welcome the Minister of State and his officials to the House. I thank them for bringing the Bill forward. When the law is changed, it is important that the equivalent change in the taxation area is also made. I have to take account of what Senator Zappone has said. The Minister of State should take it on board.
I will give an example of how far we have come. In 1980, which was before the Minister of State’s time, we started a campaign to abolish the status of illegitimacy whereby a child born outside marriage did not have any rights in relation to his or her father’s estate. When the campaign was started, everyone agreed it would take ten years to achieve the change. It took seven years — the legislation was eventually passed in 1987. That is not an excuse, however. The changes being made represented a step forward. They needed to be made. The legislation before the House is welcome.
I would like to speak about the link between children and taxation. As I understand it, if a person is paying maintenance to his or her partner or spouse, he or she can get income tax relief. I understand the relief does not apply, however, if the maintenance is paid for the children. I am open to correction on that. I wonder why that variation requires to be there. I understand it is also in this legislation. It is something that should be looked at.
I suppose the reason I raise it is that, taking on board what Senator Zappone stated about one needing the necessary orders before getting the benefits under this legislation, as recently as yesterday my legal office got a decision in the Supreme Court in a family law matter that commenced in 2001. It brings home the point. In fairness, this was not the fault of the courts. I do not blame anyone for the delays involved. It is merely that sometimes there are issues that drag on. Even though there was a decision given in the Supreme Court, unfortunately, neither does the case end there. I suppose it emphasises what Senator Zappone stated on this legislation. Perhaps the Minister of State might take on board her views on it to see whether the necessary changes can be taken on board. All of the changes Senator Zappone suggested may not be possible at this stage but in the example I gave, ten years later we are only getting a court order, not because of a delay by anyone but merely because of the way the system worked. That should be taken on board.
I welcome this legislation. That the legislation runs to more than 70 pages shows how complex is the area in the various issues on taxation, such as income tax, capital acquisitions tax and stamp duty. It is important that we put in place the same reliefs and that the Bill is implemented at the earliest possible date.
I thank the Minister of State for coming forward with the Bill and thank his officials for carefully drafting this in the way they did. We should take on board the views of Senator Zappone on this matter.
Senator Kathryn Reilly: Senator Thomas Byrne stated that it was Fianna Fáil which brought forward the legislation originally and I want to use a famous Fianna Fáil phrase to describe this legislation, “A lot done, a lot more to do.”
It is progressive legislation, but it is legislation that seeks to right a wrong and end an injustice. The principles behind this Bill are not new. Senator O’Brien spoke about republicanism. The principles behind this legislation were enshrined in the 1916 Proclamation and it is our responsibility to make good that vision of a republic that guarantees religious and civil liberty, equal rights and equal opportunities for all, not the majority, of its citizens.
Sinn Féin has long advocated for full legislative equality for lesbians and gay men. While civil partnership did not go far enough, my party was happy to support it as another marker in the journey to realise the rights of all citizens regardless of sexual orientation. Civil partnerships, although not providing full equality, provide for important rights such as inheritance, adoption, visitation and residency.
The Bill, as was previously mentioned, seeks to correct anomalies in the current tax code to ensure that civil partners will be treated in the same manner as married opposite sex couples. While to date we may not agree with some of the Government action or inaction, we should commend it, and its predecessors, for bringing forward this Bill and reassure the Government of Sinn Féin’s wholehearted support on this matter.
As legislators, it is our privilege to correct the wrongs in the system. This Bill provides for couples considering civil partnerships some legal certainty and security, which, given the current economic climate, is more important than ever.
The Finance (No. 3) Bill is also important in another respect in that it ensures that children of civil partners will be treated the same in some respects for tax purposes as children of married couples.
I welcome that this Bill will largely enjoy cross-party support. This is essential if we are to send a strong signal that discrimination and prejudice is wrong and that the Oireachtas is properly serious about equality and about treating all citizens and residents in the State with the dignity they deserve.
This Bill will further the rights and entitlements of all of those in society, regardless of sexual orientation, including equal recognition of same-sex parents in families. As I stated, Sinn Féin supports the right of same-sex couples to marry and form a family, including by adoption, and sought to have this right enshrined in legislation. It was Deputy Crowe of Sinn Féin who first tabled an amendment to the Civil Registration Bill in 2003 to provide for equal recognition of same-sex marriage.
In the programme for Government Fine Gael and the Labour Party made a clear commitment to promote constitutional reform to enable same-sex marriage and I urge the enactment of this commitment as soon as possible. My party looks forward to seeing the Government advance the rights of lesbian and gay individuals, couples and families in the future. If this happens, I assure the Government that it will have Sinn Féin’s full and enthusiastic support.
This Bill is merely another step in realising the rights of all of the people. It is another step in realising the vision of the 1916 Proclamation to build a republic on the principles of equality, sovereignty and liberty. I hope it is shared by all parties and Senators in this Chamber.
Senator Paul Bradford: I, too, welcome the Minister of State. I welcome the introduction of this legislation. As has been stated by previous speakers, it follows up the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The commitment was given by the then Government and the incoming Government obviously had no difficulty in putting in place the legislation promised at that stage.
The previous speaker used the phrase, “A lot done, a lot more to do”, as an indication of where the Bill was coming from politically. I suppose we could also think of another Fianna Fáil phrase, “an Irish solution to an Irish problem.”
Senator Paul Bradford: I welcome the legislation. The Bill — which has numerous sections, as, I suppose, all finance Bills have — is straightforward in nature and we have no difficulty in supporting it.
Senator Reilly used the phrase “progressive legislation”, which I hear so often and which, while I hold the Senator in huge admiration, can irk me from time to time. I hear these phrases “progressive legislation” and “progressive thinking” coming very much from one side of the spectrum philosophically. Many of those who speak of progressive legislation will tell one that what we see in China and in some parts of South America and Cuba today is progressive legislation. We should start defining what is progressive and what is not, and should not use the word with total abandon. I welcome this legislation, but this definition of some legislation being progressive and only being generated from a certain ideological base is not always correct.
Last year the civil partnership legislation generated significant debate, particularly in this House. It was a genuine and comprehensive debate, unlike what occurred in the other House, and a wide spectrum of opinion was presented to us. The view of the House on that occasion was to pass the Bill and, therefore, we are now putting in place the follow-up taxation provisions. It is only fair and proper. It deals with same-sex couples and cohabitating couples. It is appropriate and I have no difficulty in the tax code being changed to allow all of those people to have full taxation rights.
A substantial case was made during the debate on the civil partnership Act about the rights and entitlements of people living together in what were described as caring relationships. Generally, this involved brothers and sisters and elderly persons who were looking after each other. The case was made that rights and entitlements should be afforded to such persons also. Obviously, the Bill does not provide for this. However, those of us involved in constituency politics will be aware of people who have lived together for almost a generation and who do not have any social welfare, taxation or legal rights. I am referring for the most part to brothers and sisters. Perhaps the Minister of State might reflect on those in society in need of State protection under the tax and social welfare codes. That does not, however, take from the fact that this legislation is necessary and will be supported by everyone in the House. I thank the Minister of State for fulfilling the Government’s commitment, as it moves our legislation to a newer plane. This is something we promised we do and that everyone supported in the debate on the civil partnership Act last year. I do not envisage a divide on the legislation. I thank the Minister of State for introducing the Bill and we look forward to its speedy enactment.
Senator Rónán Mullen: Cuirim fáilte roimh an Aire Stáit; I welcome the Minister of State. I have no doubt he is aware that I was one of the Senators who opposed the civil partnership Act in the House last year. I would be a hypocrite were I not to state I continue to be concerned about aspects of that legislation. Therefore, I cannot support aspects of this Bill because it flows from a false premise or a faulty idea of how we should go about addressing the legitimate needs and concerns of some in our society, including persons in same sex relationships. I note Senator Ivana Bacik stated her comments were, to use her own words, tempered by the fact that she regretted the Bill did not go as far as she would have wished. This view was reflected in Senator Katherine Zappone’s position also. My comments are also tempered by the fact that at no point either last year or now did I desire or have I desired to disregard or disrespect the undoubted sincerity of those who believe this Bill will achieve some social good. I respect people completely in their personal and private relationships and I am keen to see our society, policies and laws honouring and respecting people in the commitments they make to each other. However, it does not follow automatically that we should have civil partnership legislation of the kind brought forward. Certainly, it does not follow that we should have to change the Constitution and laws to redefine marriage in the way proposed.
I make my comments animated by a genuine, personal concern for the common good and a particular concern that society should continue to recognise in a special way the institution of marriage between men and women in the way validated by recent international legal pronouncements and that it should show special concern to these relationships because they achieve a particular social good or because they provide the context for the achievement of a particular social good which we should not deny. I do not believe it could be wrong in any way for me to flag this concern. Therefore, Senator Ivana Bacik was wrong in her assessment of the apparent unanimity in the Dáil last year being positive and in her regret that there was dissent in the Seanad on the civil partnership legislation. What we saw in the Dáil last year and in large measure in the Seanad was an example of group-think. I do not believe anyone was done a favour by the closing down of the debate to only permit or celebrate comments that were politically correct or in accordance with the apparent media and public policy agenda that prevailed.
I respect what I have heard from Senator Katherine Zappone who believes the legislation does not go far enough. Generally, most politicians are supportive of it. The reason for this is partly historical because Fianna Fáil was the party which brought forward the civil partnership legislation and it could hardly oppose what is now taking place, even if it were motivated to do so for political reasons. Therefore, it falls to the few who genuinely hold objections and see problems to raise them in the public interest. I am not impressed by Sinn Féin’s borrowing of the language of civil rights when it has addressed civil rights and the equality agenda in a partial way.
The civil partnership legislation was about a notion of equality but it was only ever equality for some. I made the point then and make it again now that there is no human right to a same sex marriage or civil partnership. Even in recent times international decisions, including the UN Human Rights Committee decision in the 2003 case of Joslin v. New Zealand, suggest marriage is for men and women, in particular. That is not to be offensive to anyone; it is because marriage is seen as a particular social good. The Doha International Conference for the Family in Qatar in 2004 affirmed similar sentiments, referring to a family composed of a husband, a wife and children as being a natural basic element of society. The recent European Court of Human Rights decision on same sex marriage and civil partnership affirms that there is no right to marriage for homosexual persons under the European Convention on Human Rights. I make the point to illustrate that the public policy direction we should take in these matters is not a no brainer; it is far from a settled issue. We must hold a genuine debate and need to engage the brain on what we consider to be most in the public interest.
I could also quote a judgment by Ms Justice Elizabeth Dunne, the judge in the case involving my colleague, Senator Katherine Zappone. I am paraphrasing, but she came to the conclusion on the evidence on equality of outcome for children being cared for within same sex relationships was that it was unsafe to rely on the evidence on offer. Senator Katherine Zappone made a recent decision in the context of a different issue relating to polygamous marriage in respect of the marriage of a Lebanese man and woman in Lebanon and a relationship that was valid under the law of Lebanon. She stated that to interpret our constitutional provision as including polygamous marriage would be to give it an interpretation——
Senator Rónán Mullen: That is correct, Ms Justice Dunne made it. She ruled that it would be to give it an interpretation which was simply not compatible with the constitutional understanding of marriage.
I am not confusing the two issues. I am merely making the point that there are significant issues that we must consider. When we import a notion of equality, we must ask who else will seek equality in the future for their relationships. Will we have the same group-think when it comes to such debates in the future as we have had in respect of civil partnership? I am making a point on the need for a more intellectually searching debate and the avoidance of a closing down of dissenting voices. That is my point.
Central to my concerns last year and now was and is the fact that this is equality in favour of people in a particular caring dependent relationship, namely, one that has a sexual dimension. I understand the former Deputy and Minister of State, Martin Mansergh, asked the question of whether this was an example of the State getting back into the bedroom. Is this really about equality? Under the changes to be made in respect of capital acquisitions tax, a child of one civil partner will be entitled to inherit from the non-parent civil partner up to a threshold of €332,000. If that person were to receive an inheritance from another close relative such as a sibling, an aunt, an uncle or a grandparent, a threshold of one tenth of that figure would apply, that is, €33,000. What does that say about our commitment to equality? Last year, I made a point about what really should be provided for. I remind Members that last week, I supported Senator Zappone’s amendment to allow the Minister to decide in favour of naturalisation of a non-European Union national spouse or civil partner. I genuinely believe each case needs to be considered on its own merit and genuinely believe in a compassionate accommodating society. However, I question a form of equality legislation that does not recognise that people in a caring dependent relationship in which there is mutual dependency, sacrifice and support but which is not sexual, are entitled to just as much recognition as are people in a same-sex relationship. Ultimately, the reason marriage between men and women was supported all along was, to paraphrase the millennium cohort study, to support that context in which children would be brought up as much as possible by two biological parents in a low conflict marriage, which is the gold standard. I believe Members lost sight of genuine equality with the civil partnership legislation last year in favour of a notion of partial equality. Just as seriously, they failed to have a debate in which all sides’ genuine concerns were ventilated fully and properly debated. It was to the shame of the Government of the time, as well as of other parties in this House, that the debate on the legislation ended with a guillotine.
Senator Martin Conway: Although I had not intended to speak on this Bill, it is significant legislation. It is extremely important and while I have absolute respect for Seanadóir Mullen and agree with many of his sentiments, I do not agree with him in respect of the civil partnership legislation, which I believe to have been necessary. I agree with him on his issues regarding equality and the definition thereof. This morning, I spoke on the Order of Business on the subject of political equality. While political equality is the point at which it must start, it must percolate through society and particularly in legislation. Legislation must reflect equality in every sense of the word. The lack of recognition of a scenario in which an elderly brother was caring for an elderly sister is just as much a scandal as the lack of recognition of the rights of a cohabiting same-sex couple. Senator Bradford spoke of the need for a debate and I understand that statements on A Vision for Change have been scheduled for tomorrow, at which time opportunities to so do might arise.
Senator Martin Conway: Approximately 12 months ago, I was approached by a constituent who informed me about a couple’s intention to buy a house. One element of the relationship already owned property while the other did not. The person who did not previously own property felt very hard done by, because the couple was caught for stamp duty in respect of the entire house. That person was of the view, correctly, that it should have been for 50% of the value, if one considers the definition of equality about which Senator Mullen spoke. This is a point at which equality does not exist. Significant cohabitation takes place in our society and this must be recognised in legislation.
As for the civil partnership legislation that was enacted last year before I was a Member of this House, I welcome how the tax requirements at least are being brought through in this legislation. As for the future, the definition of equality is a concept around which all Members must get their heads. Moreover, people must begin to work out what comprises equality for future legislation. The case of older people was referred to previously and there could be a case, for example, in which an 88 year old lady was being looked after by her 75 year old brother and perhaps they might wish to will their properties to nieces and nephews. In such a situation, the threshold is one tenth of what it should be, which is highly inappropriate. There should be a way to facilitate aunts, uncles and cousins. Moreover, perhaps children should be able to leave their property to an aunt on their deaths in cases in which there was no one else up along the line. Members must become creative and must extend the definition of fair play and equality. Moreover, over the lifetime of the Government, Members must ensure that legislation is progressive in this regard. I had not intended to speak in this debate but as Members are speaking about equality and the issues associated thereon, there must be a proper definition of equality that reflects a broad church.
Minister of State at the Department of Finance (Deputy Brian Hayes): I thank the Leas-Chathaoirleach and all my colleagues who have spoken on the Finance (No. 3) Bill. While this is the third Finance Bill to be introduced by the Government this year, I hope there will not be another such Bill because all the time of the officials in the Department of Finance is being taken up with these measures.
Deputy Brian Hayes: Before I deal with the substantive issue, I note there was broad consensus in both Houses when the civil partnership legislation was put into Irish law. This does not diminish the rights of colleagues on any side to take a different stance in this regard and I refer to a point made by Senator Mullen. I was in the Dáil and participated in and listened to that debate. Close to 70 Deputies spoke and I do not remember a debate in which so many colleagues spoke on an issue. There was no guillotining of the debate in the other House and no clamping down of people’s personal expressions. The Senator suggested the debate in Dáil Éireann was closed down. That is not true.
Deputy Brian Hayes: One person’s guillotine is another person’s filibuster. I watched the debate in this House and fair is fair. There was a fair articulation of the views but like all things, a conclusion must be reached. As I note the Senator is smiling, the suggestion of a filibuster in respect of the parliamentary device he used at the time may have had some justification. However, I make the point that we all must respect one another’s view on this issue.
I wish to deal with the elephant in the room, which has been brilliantly introduced to the debate today by Senator Zappone when she spoke of the land of paradox and equally by Senator Bacik when she stated that full equality has not been restored. Moreover, the same argument was made by Senator Mullen, albeit in another way. One should be clear that civil partnership is not marriage because it cannot be marriage. The only way in which marriage can be changed under our constitutional architecture is by constitutional referendum. If one examines the existing High Court rulings, it is absolutely and fundamentally clear that the precedent and view of the Irish courts is that a marriage is a marriage between a man and a woman. I note the case of Zappone-Gilligan against the State effectively tries to establish the right of the Irish State to recognise a marriage conducted in another state. I understand that matter is still before the courts. However, the current position reflects the High Court judgments that have been made. The Oireachtas cannot introduce legislation when it lacks the constitutional power to so do. A fundamental requirement in the Constitution is that the Oireachtas can only pass laws that are consistent with the Constitution. It is patently inconsistent with the Constitution under the existing judgments of the courts to suggest that this House or the other House could impose a definition of marriage on same-sex couples. Consequently, one must be honest that civil partnership is not the same thing as marriage.
I understand the legitimate expectation of those who argue it should be the same and this debate, as Senator Bacik rightly noted, will take place in Ireland. The programme for Government contains a commitment to have a constitutional convention in which that issue will be explored with many other issues over the course of the next few years. However, to be clear and up-front with people, if marriage per se is to be extended to same-sex couples, it will require a constitutional referendum of the people. It has been the collective view of parties and Independent Members this year and last that a majority for such a proposal is not in place at present. People can have a legitimate expectation for such an extension and can continue to campaign for it. However, the only way in which it can come about is through a constitutional referendum. In a sense, the comments by Senators Zappone and Mullen point to the arguments made by the present Government and its predecessor.
What we are putting in place in civil partnership legislation is a recognition of the fundamental rights being prescribed to people who are in civil partnership relationships. I cannot tell the Senator what will happen in the future.
Deputy Brian Hayes: I refer to fundamental taxation rights. No one knows where this debate will go. There are independent views across the House which are all legitimate. For the purposes of this Bill we need to say that it is an extension of an Act passed by the Oireachtas which gives rights, rather than fundamental rights, to civil partners.
Why do I think that is important? It is in the public interest that this State encourages people to live together and encourages people in a loving relationship to be at one with each other. That should be recognised by some institutional change, be it a civil partnership or marriage. It is fundamental because the more we support each other and the more families are brought together, the greater the benefit to the State in terms of social protection. It is fundamental to this Bill that it is not just an extension of rights but also a fundamental extension of responsibilities to one another. Some of the most loving relationships I have ever seen are gay relationships. People want to make a commitment to each other in the long term. People want to ensure their house is in order so that if one partner dies, there is proper provision for the other. It is absolutely right that the State would provide in law for that by way of civil partnership. Whether it would extend further on the question of marriage is a question I suspect will be revisited and one on which we will all take a position. The civil partnership Act gives the question of rights and responsibilities to a new category of people who have previously been excluded from the law.
Wearing my Department of Finance hat and having got that off my chest, I want to respond to a number of the excellent ideas that have come from Senators today. Committee Stage may take place next week and we will have the chance to tease out some of the issues. I ask people to remember that we in the Department of Finance can only introduce changes to the taxation code whereupon the principles are provided for in the civil partnership Act. We cannot dream up other things that are not in the Act. Changing the taxation code is a logical outworking from the fundamental legislation which is the civil partnership Act.
I thank Senator Darragh O’Brien for his very constructive speech. He also referred, rightly, to the role played by Seanad Éireann. A number of colleagues made that point. One name I did not mention is former Senator Sheila Terry, who is a member of my party. She produced the first comprehensive policy of any political party on this issue. The bigger the political party, the more difficult it is to get these things through given the catch-all nature of politics. When I was in the House between 2002 and 2007, she produced a comprehensive policy position and I wanted to recognise her contribution.
Senator Darragh O’Brien released some queries about the non-payment of maintenance which is a matter for the Minister for Justice and Equality. I will follow that up and respond on Committee Stage in more detail.
Senator Michael D’Arcy referred to difficulties with the legislation and the potential for loopholes. I assure him that if the legislation is not operating as intended, it can be remedied by way of a finance Bill. Unlike other legislation, we have an annual finance Bill which not only implements decisions of the Government in the budget but can also be used to tidy up legislation. If difficulties emerge, we will have an opportunity each year to address them in order that people’s rights will not be diminished in any way.
Senator Darragh O’Brien asked about the recognition in civil partnership of same-sex marriages in other jurisdictions. Anyone in such a relationship can apply for recognition in civil partnership in Ireland. However, there will be no tax effects before 1 January 2011 because there was no recognition of civil partnership before this point. The law came into effect on 1 January and the benefits in the taxation code will apply from that date, which is fantastic collaborative action from the Department of Finance, but not before. The point of retrospection refers to 1 January 2011.
As I stated in my opening remarks, tax law follows general law and we cannot make provision in tax law for something which was not recognised in general law. Many of the amendments and changes that colleagues want made to the Bill have to fit in with the legislation that was enacted by both Houses last year.
I take on board the general comments of Senator Zappone. Many of her points are outside the terms of the Bill and the wider societal issues to which she referred. Her tax comments are based on the provisions of the civil partnership Act. The tax law can only follow general law and this Bill cannot exceed what is already allowed in the context of the civil partnership Act. The Senator referred to four specific areas where she contends a couple in a civil partnership is not in the same position as a married couple and some form of unfairness exists. I have taken note of the four issues, namely, the break-up question, the definition of “living together”, the definition of “relatives”, and the role of children. There was a significant discussion on this issue, as she is aware, when the legislation was being debated last year. We might return to those issues on Committee Stage.
There is no tax relief for maintenance payments in respect of children in the context of the break-up of a marriage. Tax relief on the payment is only available for the separated or divorced spouse, which will be extended under this Bill to maintenance payments to separated civil partners and former cohabitants. Senator Burke asked about the non-deductibility for tax purposes of maintenance payments in respect of children of a marriage or civil partnership after separation. The view was that an individual is responsible for paying maintenance to his or her children and should not be given tax relief for that. If we were to make such payments deductible, the logical consequence is that such payments would be taxable in the hands of the recipient, whether from the former spouse or civil partner. It is not proposed to make such a provision in the context of the law.
Senators Bradford and Conway mentioned people in caring relationships such as elderly siblings living together. This is a matter for another day but under capital acquisitions tax provisions, there is a dwelling house relief which ensures that a person who inherits the house will not face inheritance tax liability in respect of it.
Deputy Brian Hayes: No, it does not. There is a reference to dwelling house. It does not refer to the others. Senator Mullen is correct that a child of one civil partner who receives a gift or inheritance from the other civil partner gets a tax free threshold of €332,000. It is called the group A threshold. He contrasted that with the lower tax rate threshold for gifts and inheritance from siblings, aunts or uncles which is about €33,000, the group B threshold. The treatment of children of civil partners is the same as that of children born of married couples, including adopted children. He is right to point that out.
Deputy Brian Hayes: It does because it is a logical extension of what we passed in law. If we are suggesting that the tax treatment of civil partners should, by and large, be the same as the tax treatment of married couples, it follows, ipso facto, that there should also be this treatment of children of a civil partnership. That is the majority view in the context of this legislation which was passed last year. I only make these points to be helpful. The common will is to implement this legislation and, at the very least, give people protection in the tax code for their relationships. It would be nonsensical to enact legislation to give fundamental rights to civil partners, which excluded the tax code as part of it.
Deputy Brian Hayes: If it is the view, which I suspect it is, that the support is there for the civil partnership legislation, it logically follows that the support should be there for these tax changes. We will have an opportunity next Tuesday to go through this in greater detail.
Senator Rónán Mullen: On a point of order, I ask the Minister of State to withdraw that comment, if he does not mind. I know he probably said it in jest, but it was about me being a fundamentalist, if I heard him correctly.
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