Michael McDowell (Dublin South East, Progressive Democrats)

A political consensus is emerging towards legislating in this area, hence this debate tonight. This mirrors an emerging international trend to provide enhanced rights and recognition to cohabitants and particularly to same-sex cohabiting couples. However, there is no uniform international approach to statutory recognition and protection for same-sex civil unions. A small number of jurisdictions have opened up marriage to same-sex couples while more have provided civil registration schemes either confined to same-sex couples or available also to opposite-sex couples.

In legislating in this area, each country is faced with its own unique set of complex political, legal and social circumstances. In this jurisdiction we are now facing into this complex environment. In the UK, the Civil Partnership Act 2004 provides for registration of exclusively same-sex civil partnerships in an institution broadly equivalent to marriage. The UK Act runs to 264 sections and 30 schedules in order to extend the appropriate legislative provisions on spouses to encompass same-sex couples. Deputy Howlin's Bill attempts to replicate this 264 sections scheme in ten short sections.

The Civil Unions Bill would be unlikely to survive a constitutional challenge and the Government cannot therefore support it in its current state. The Bill falls short of being a suitable model to provide for the civil registration of same-sex relationships. It is drafted in such a way that it would be unlikely to withstand constitutional challenge and in particular it offends against Article 41.3.1° of the Constitution which obliges the State to guard with special care the institution of marriage on which the family is founded and to protect it against attack.

The Bill purports to ascribe to the same-sex partners all the rights and obligations of marriage, with some minor exceptions. The advice consistently available to the Government is that a law which equates non-marital relationships to marriage for all purposes could not survive constitutional challenge. I said this in the Seanad when Senator Norris moved his Bill which was broadly similar.

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