This was a week of celebration for gay couples enjoying the Republic's first civil-partnership ceremonies, but further issues, especially those relating to children, need to be addressed, writes PAMELA DUNCAN
ON WEDNESDAY, a day after Thomas Cahalan and his partner, Nicholas Nelson, received legal recognition of their union through a civil-partnership ceremony, only the second for a gay couple in the Republic, they were already feeling the change.
“Actually I do feel different, because, God forbid, if something happened to Nicholas, up until yesterday I wouldn’t have been considered his next of kin – that single practical issue which other people would take for granted,” Cahalan says. “Officially, up until yesterday we were strangers to one another.”
“That was our whole motivation for having the civil partnership,” Nelson adds. “We were already committed to one another, but the civil partnership has added security to our relationship.”
Until Thursday this week eight civil partnerships had been officially registered, and 280 couples had given notice of their intention to enter into one. They will join up to 1,000 couples who had their foreign civil partnerships or civil marriages recognised here in January.
For all these couples the implications of civil partnership are a lot more far-reaching than just having a day out, albeit a day out that many of them have been waiting on for a long time. The issues include taxation, inheritance, pension entitlements, next-of-kin status and separation.
Barry Dignam and Hugh Walsh became the public face of civil partnership on Tuesday when, after 17 years together, they became the first gay couple in Ireland to become legal partners without receiving a court exemption to do so (granted, for example, in the case of illness). Both men say that the legal recognition of their partnership will make a huge practical difference to their relationship.
“It means if something happened to me and I was gone, Barry is my next of kin the same way as any husband would be in any other couple and he doesn’t have to worry,” Walsh says. He adds that the couple were aware of cases where the sudden death of one gay partner had left the other in a position where, on top of dealing with bereavement, they faced homelessness or a large tax bill because of legal issues relating to a shared home.
“The fact that neither of us ever has to worry about that again, it’s just wonderful. It’s a great weight off our shoulders,” Walsh says. “It’s not something which you worry about every day, but when it actually dawns on you it can be a bit nightmarish.”
Dignam and Walsh are quick to stress that, as with a marriage, they have taken on a commitment that brings its own duties.
“It’s not to be taken lightly, and we wouldn’t like to see a rush of people who have only just met each other rushing down to the registry office to sign up to this, because as well as the rights there are responsibilities,” Walsh says.
The last thing on the minds of newly registered couples is separation, but some civil partnerships will inevitably break down, an eventuality that the law has dealt with through what is called dissolution, the equivalent of divorce.
Muriel Walls, a family-law solicitor and board member of the Gay and Lesbian Equality Network (Glen), also says that civil partnership, like marriage, is something that couples should take seriously. “Some people have dismissed civil partnership as some sort of second-class marriage, as something which is trivial – but it isn’t.” She points out that the rights, responsibilities and issues that flow from civil partnership are “quite similar” to those that flow from marriage. “If you bear that in mind then, sadly, if some of those relationships break down, the dismantling of those relationships is also equally difficult.”
A court can grant a dissolution only if a couple have lived apart for two of the three previous years. This differs from divorce, whereby spouses must have lived apart for four years out of the previous five.
“In granting a dissolution the courts must look at the practical and financial provisions of the couple,” says Walls, adding that, as with divorce, this could involve a judge telling one partner to provide financial maintenance to the other, ordering the sale of a joint home or dividing up pension benefits. Unlike divorce legislation, however, there is very limited reference to children in dissolution legislation.
The broader issue of children is one that the civil-partnership legislation does not deal with adequately, according to Walls. “A huge deficiency in the civil-partnership legislation is the fact that it does not actually deal with the reality of children living in families with gay parents,” she says.
Thomas Cahalan also believes that the legislation does not go far enough when it comes to the rights of the children of gay parents. “I think the government really chickened out on that aspect, especially considering that a really Catholic country like Spain was able to introduce full marriage.”
Dignam and Walsh do not intend to have children, but Dignam notes that, even leaving aside gay couples who wish to have children in the future, there are already many children being raised in households where both parents are gay. “It’s like a new form of illegitimacy,” he says. “Even if it was one child it needs to be addressed, but there are lots of kids out there, and they deserve the security of both parents.”
“The child doesn’t have rights, nor the non-biological parent an obligation towards that child, in relation to a number of key issues, including maintenance or provisions for the child on dissolution,” says Eoin Collins of Glen.
He adds that Glen welcomes the inclusion, in the Fine Gael-Labour programme for government, of a commitment to address issues relating to the children of gay parents. The Government has also stated that it will respond to a Law Reform Commission recommendation that it should be possible to extend legal guardianship of children to the civil partner of a biological parent.
“These are urgent issues both for the gay couple and for their children,” Collins says.
Probably the most important factor for those entering civil partnerships is that gay spouses will become each others’ next of kin, but there will be other practical advantages too. For example, although the recent Finance Bill did not include provisions that would see civil partners receive the same tax status as their heterosexual counterparts, the Government has promised that this will come in time and will apply retrospectively. “It is envisaged that the changes will come in before June and will be retrospective to January,” says a spokeswoman for the Department of Finance.
When these tax changes come into effect civil partners will have the same rights as married couples on stamp duty, inheritance tax, gift taxes, capital-gains tax and combined income for tax returns. In addition, pension schemes will have to give the same deals to civil partners as they do to married couples.
Employers may also need to examine the benefits they have in place for couples, according to Walls.
“Companies are going to have to have equality charters in place,” she says. “For example, if someone is entitled to a few days off if they are getting married, then civil partners will have to get that as well.”
For those who have entered civil partnerships this week, having the choice and freedom to do so at last is very welcome. Cahalan reflects that the legislation has come about in a country where homosexuality was first decriminalised as recently as 1993. “When you think about it in those terms it is almost revolutionary,” he says.
Civil rights What partnership means
Civil partnership is a legal arrangement that can be entered into by any two people of the same sex once they reach 18 years of age. Legally, civil partnership differs from marriage but brings with it many of the same rights and responsibilities.
Couples who wish to enter a civil partnership must give three months’ notice of their intention to their local registrar. In exceptional cases, such as illness, a court can grant an exemption to the three-month notice period.
As in a marriage, civil partners are obliged to maintain each other financially and to share resources.
Hospitals and other service providers are now required to treat civil partners in the same way as married couples.
If civil partners wish to end their relationship they must enter a dissolution process, equivalent to a divorce. A dissolution can be granted only through the courts.
The Government’s intention is that, soon, civil partners will be taxed in the same way as married couples. This means they can be assessed jointly for income tax, they will not be liable for stamp duty where one transfers property to the other, and gift and inheritance taxes will not apply between partners.
Civil partners will be treated the same way as married couples for social-welfare purposes, while cohabiting same-sex couples will be treated the same as cohabiting opposite-sex couples.
As things stand, the non-birth parent in a civil partnership cannot form a legal relationship with the non-biological child or children of a civil partner. The Law Reform Commission has recommended allowing civil partners to apply for guardianship.
