Dermot Ahern (Louth, Fianna Fail)

I move: "That the Bill be now read a Second Time."

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:

An Act to provide for the registration of civil partners and for the consequences of that registration, to provide for the rights and obligations of cohabitants and to provide for connected matters.

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 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, 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.

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 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 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.

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