ANALYSIS:The Civil Partnership Bill is the most radical family law development since divorce came in, writes CAROL COULTER
THERE IS no doubt that the Civil Partnership Bill, announced yesterday, is the most dramatic development in Irish family law since the introduction of divorce.
While it does not give the right to civil marriage to same-sex couples, it provides most of the protection available to married couples, omitting only any reference to children of the relationship.
It also puts in place a regime for co-habiting couples, who make up an increasing number of households and who previously had no protection in the event of the relationship breaking up through separation or death.
An estimated 12 per cent of households contain a co-habiting couple, and about one-third of those contain children. Until now, there was no protection for a dependent partner in such a household, who could find him or herself (usually a woman) without any support whatsoever after decades of rearing children and caring for the family at the end of the relationship.
Even if her partner sought to provide for her, she could find herself facing a heavy tax burden on inheriting the family home, as legally she would be a stranger.
This situation will be rectified by the Bill, which provides for a redress scheme for a financially dependent person in such a relationship, providing a legal safety net if and when the relationship ends. A qualifying person must be in the relationship for a minimum of three years, two if there are children.
One feature of this provision is that it is presumptive – that is, a couple are covered automatically by it unless they opt out. This raises the possibility of a partner in a co-habiting couple finding him or herself with unanticipated obligations at the end of such a relationship, if he or she does not take the necessary steps to opt out.
The Bill also gives legal recognition to cohabitation agreements between opposite sex couples who wish to regulate their financial affairs. This is open to those in an intimate relationship, but specifically excludes those “within the prohibited degrees of relationship” for marriage. Thus, contrary to some earlier reports, siblings will not be able to avail of these measures.
All the rights under marriage law – succession and property rights; the protection of the joint home, access to law governing the dissolution of the relationship which is modelled on divorce legislation and protection under domestic violence legislation – are there. It also provides specifically for status, described as “civil status” to be conferred on same-sex partnerships, thereby giving explicit recognition to them as a family form.
There is no reference to the children of a civil partnership in the Civil Partnership Bill, though there are a few oblique references that could lead to some form of court recognition. For example, among the factors to which the court must have regard in dissolving such a partnership is the existence of “any child of either partner”.
According to family law expert Dr Fergus Ryan, the question of the rights of children in various family forms is arguably a much broader one than civil partnership between same-sex couples. "The Government and the Law Reform Commission are looking more broadly at guardianship issues," he told The Irish Times.
He said that this legislation was “momentous” in the development of family law in Ireland, pointing out that in other countries, the move towards such recognition had been slow and incremental.
There are those who fear that this gives same-sex couples the same status as married couples or will lead to equivalent status. That may indeed be so, as in some other jurisdictions, though not all, civil partnership legislation was followed by the legalisation of gay marriage. This was the case in Belgium and the Netherlands, though not so far in Denmark or Sweden.
One way or the other, it marks a very major step forward for those campaigning for it for so long.