Alan Shatter (Dublin South, Fine Gael)

Like other Deputies, I welcome the publication of this Bill and the opportunity for a serious and considered debate on its provisions. Although I broadly support its intentions, I propose to address some of the issues that have given rise to public debate and controversy outside the House and to outline my concerns with the Bill as drafted. There is a myriad of legal anomalies derived by the Bill that may result in its provisions not impacting as beneficially as may be intended by the Government and the Deputies speaking in favour of it. The Bill highlights in different ways the oddity of many of the family law provisions that currently apply to married couples and the need for reform. It is ironic that when enacted this Bill will clarify areas of law with regard to gay couples that are not addressed by legislation in respect of heterosexual couples.

I will begin by addressing the main issue that resulted in demonstrations outside this House following the publication of the Bill before Christmas. There is broad support from the gay community for the legislation, but there are some who are disappointed that it refers to civil registration and civil partnership as opposed to marriage. I accept that the Minister had to address the issue in the way he has because of Article 41 of the Constitution which protects the family based on marriage. If, instead of using the formula "civil partnership", the Bill referred to marriage simpliciter, there would have been a serious risk of a constitutional challenge to the legislation and therefore a substantial delay in its enactment. Alternatively, that constitutional challenge might have come following the enactment of the Bill and its signature by the President, or the latter may have decided to refer it to the Supreme Court. We might have had litigation going through the High Court and Supreme Court and one or two years would elapse before clarity could be applied to the legal situation. The Minister therefore had no choice other than to use the formula in the legislation.

Those in the gay community who are concerned that their relationship is not referred to as marriage should note that in practical terms, the provisions that apply to the celebration of a civil marriage ceremony between a heterosexual couple are exactly the same provisions which apply to the celebration of a civil partnership ceremony between a gay couple. In other words, the relationship is marriage in everything but name. The Bill plays with semantics in the hope it is constitutionally on the right side of Article 41. It is not beyond possibility that when the legislation is enacted, somebody may challenge its constitutionality. If so, I hope that challenge is unsuccessful. I hope it does not arise because it will create difficulties of a temporary nature for people. I welcome the fact that a gay couple in a permanent, intimate relationship can have afforded to them under the legislation recognition of that relationship such as that which now extends to many gay couples in other countries across the world.

There are, however, anomalies in the legislation that bear some reference. For example, section 105 is headed "Nullity of Civil Partnership". As well as dealing with certain aspects of nullity that apply to married couples that form part of existing statute law, section 105 sets out all the grounds on which a civil partnership can be annulled. It was in or about 1975 that the first report was published detailing the reason that we need legislation on nullity for heterosexual couples. The irony is that large parts of the nullity civil law applied by the High Court and Circuit Court to heterosexual couples is law as prescribed by the matrimonial courts of the Church of Ireland and inherited by the civil courts as part of Church of Ireland canon law all the way back to 1870.

Since the foundation of the State, this Parliament has never enacted a single statute setting out clearly to the courts the grounds on which a marriage between heterosexual couples can be annulled. Over the years those grounds have changed and varied as the Judiciary has sought in the pre-divorce era to develop them to facilitate couples to extricate themselves from relationships that were clearly a disaster from day one until more recently when the Supreme Court was perhaps trying to restrain the enthusiasm of judges in lower courts from granting annulments in the civil area. They are less sought now that divorce is available. I say to the Minister that I welcome the fact there is clarity in the Bill as to the circumstances in which a civil partnership may be declared a nullity. It is about time the Government recognised that there should be similar clarity for the vast majority of the heterosexual community who enter into civil marriages. It is extraordinary. We must be the only country in Europe which has no legislation that details clearly all of the circumstances in which a civil, heterosexual marriage can be annulled.

A particular anomaly relates to something Deputy Chris Andrews quite correctly referred to. This applies to both gay couples and to cohabitees. The Bill is entirely blind and in denial when it comes to children. There are cohabitees, both gay and heterosexual, in long-term relationships who have children, and who live in such relationships, have done for decades and will continue to do so. If they are cohabitees, following the enactment of the Bill they may qualify for various protections in the law that they can utilise. In the context of gay couples, the legislation prescribes all sorts of legal protections, extends various important statutory provisions to them and sets out the legal remedies available when the relationship breaks up. With regard to cohabitees, equally, it sets out the legal arrangements that apply and the orders the courts can make when the relationship breaks up.

There is nothing about children. The Bill does not recognise that when a relationship of cohabitees breaks up, provision may have to be made for children just as there is following the break up of a marriage. The Bill is apparently in denial that there are gay couples who have children. One may have a gay couple who has gone through a civil partnership registration and within the relationship there might be a child from a previous relationship that they both parent for many years. An issue arises about whether the non-biological parent has any obligations to that child in the same way as in a marriage a husband may be regarded as having obligations to a child fathered by someone else prior to the marriage taking place.

The Bill, in the same way as the Government and its various predecessors, is in denial about the availability of methods of assisted reproduction. We have no legislation in this House on this area. We had a major Supreme Court judgment on the matter prior to Christmas involving a heterosexual couple, but we also had a Supreme Court judgment only in December on a dispute between a gay father whose sperm was used to facilitate a party to a lesbian relationship to have a child.

I cannot understand the proposed legislation. The Government has had the wisdom to bring the legislation before the House. We have had a myriad of family law legislation that recognises that when marriages break up and when the courts are addressing the consequences of the break up, they must not only provide protection for spouses, particularly dependent spouses, but also for dependent children. Why does the legislation ignore the position of dependent children? This is not a political critique. This is simply an area that the legislation does not address, but which, as Deputy Andrews indicated, was ably and succinctly addressed by the Oireachtas Library and Research Service.

Under the heading "Parental Rights" on page 16 of its brief it states:

The Bill contains few references to children of civil partners or cohabitants, and makes no provision as to custody, guardianship, adoption or affiliation. [I presume "affiliation" means supports.] In general, Civil Partnerships are treated in terms of the partners only.

It further states:

Similarly, the provisions on dissolution do not generally require the court to consider whether proper provision has been made for any dependent children. Section 127 of the Bill sets out the general considerations to be taken into account when making maintenance or other orders on dissolution. [That is dissolution of a civil partnership.] The clearest of these is "the rights of ... any child to whom either of the civil partners have an obligation of support".

In other words, the court must have regard to that, but the court can make no support order for such child. It can only make a support order for the partner. If we take the contrast, when a decree of dissolution or divorce of a marriage is granted, the courts have an obligation to make "proper provision" under the Family Law (Divorce) Act 1996 for spouses and children. Under that legislation the courts have an obligation to make "proper provision", the same phraseology, for the gay partner who requires it, but there is silence as to children. What objection is there to recognising reality? Are we trying to pretend that gay couples whose relationships break up do not have children? We have an obligation to ensure that those children are treated equally to any other child in the State.

The committee of which I am a member has been labouring for two years on the rights of children. The Minister of State, Deputy Barry Andrews, is a member of the committee and the Minister, Deputy Dermot Ahern, has dropped in two or three times but beyond that we have not seen him. I appreciate he has a lot of other obligations. I do not mean that in a snide way but if he had been at those meetings more comprehensively he might have understood that. We intend to propose a constitutional amendment to ensure that all children are treated equally but, at the same time, we are introducing legislation in this House which is intended not to treat equally children of gay civil partnerships and cohabitees. I do not understand why. Is there a fear that there would be some public backlash because we acknowledged reality? People engage in a myriad of different relationships of various natures and children in all circumstances should be treated equally. No child should ever be discriminated against because of the circumstances of their parents or because of the nature of the status of their parents or their parents' relationship. We will come back to this on Committee Stage, I hope, and I hope the Minister will consider addressing the issue.

I wish to refer to the provisions relating to cohabitees. There is a need to provide for recognition given that, when people cohabit in relationships and the relationship breaks up, there are often issues that have to be addressed which are similar to those which have to be addressed when marriages break up. I can only describe some of what is contained in the legislation addressing this as bizarre. It will give rise to extraordinary court cases of great difficulty and will result, I believe, in the provision of minimal real protection for the people concerned.

Section 170(1) states: "a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship" - this is the definition. Section 170(3) states: "For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature." Let us assume that after living together for five years, the relationship breaks up and a cohabitee - we will presume it is the female cohabitee because most often that is the person who is at most economic disadvantage - goes to the courts to look for some sort of support order or property adjustment order under this provision. What will happen? The other cohabitee - the man - who does not want to make any provision, will want to ask the court to examine the minutiae of the intimacy that they engaged in. Will we have judges being asked to examine the number of occasions per week, month or year in which people engaged in sexual intercourse? Will men and women have to give explicit detail under cross-examination of the nature of their sexual interactions? Will they be put through this sort of degradation? Will we leave it to the subjective assessment of judges to determine what level of sexual interaction amounts to sufficient intimacy and at what point need it stop?

We are told in subsection (3) that sexual relations, seizing of themselves, would not exclude a person. It would have to be first established that there were some intimate relations. What if one was intimate for four years, not intimate for three years and then the relationship broke up? Does one qualify? If it was the other way around and one was intimate for two years and continued living together for four years, does one qualify? I have no idea, and neither will anyone else. The other criteria in section 170 are quite reasonable but I ask the Minister to reconsider the issue of the duration of the period people have resided together.

I have said all along that the legislation ignores children. It does a very weird thing in regard to cohabitees. One is a qualified cohabitee if one was in a relationship of cohabitation with another adult for two years and have given birth to a dependent child. However, if one has not had a child, one does not qualify unless the couple have been living together for three years. Why the difference? The fact one has a child under this legislation gives one no entitlement to claim support for the child in any case. Why introduce this? I do not understand it.

There is a decision of the High Court with regard to a couple who lived together for some years, a child was born and they broke up. Under existing law, which is defective, the mother sought adequate provision by way of a lump sum for the child. The court held that, for constitutional reasons, because the father was still married, though he and his wife had not lived together for many years, one could not provide a lump sum for the benefit of that child but one could do so for marital children in similar circumstances.

The law in this area is riddled with problems and this Bill will exacerbate it. In the context of children born outside marriage to couples who resided together, or even just generally born outside marriage, this legislation affords an opportunity to address the anomalies that have arisen as a consequence of a judgment delivered by Mr. Justice Sheehan in a recent case - I should make a declaration of interest because I appeared for one of the parties in the courts in that case. That judgment has turned the law back substantially from where we thought it was, and it needs to be addressed in this Bill.

To conclude, all of the provisions in sections 170 and 171 relating to cohabitees need very substantial rewording and consideration. All the focus on this Bill has essentially been on the provisions relating to civil partnership and gay couples but there are enormous anomalies with regard to couples cohabiting. There is a failure to provide the proper protection that is necessary when cohabiting relationships break up. For some reason, instead of ensuring that when they do break up, to use the phrase of the legislation in other areas, proper provision is made for the dependent person, there is a sort of redress scheme which ensures, and is designed to ensure, that only some assistance is given to someone who is economically dependent. That creates an anomaly. If a man and a woman live together for 30 years, most of the assets are in the man's name but the woman has been intimately involved in that man's family life and business life, and they have cohabited. If she has some degree of income of her own but the man is left with ownership of substantially more of the property, under these provisions, the woman will get nothing.

The final problem is, of course, that none of these provisions apply to anyone whose relationship under cohabitation breaks up before the Bill commences. That is a little time-bomb ticking away that could create disaster in the lives of many people. My suggestion is that this provision should be amended to ensure these provisions and amended provisions apply, in so far as there is any value in them, as and from the date of publication of the Bill rather than as and from the date of the Bill's commencement. Otherwise, we could have hundreds of individuals very badly affected by some persons extricating themselves from relationships to avoid meeting their financial obligations to others with whom they have lived for many years.

See this speech in context