Dermot Ahern (Louth, Fianna Fail)

Giving the courts power to make orders in respect of maintenance, pensions and property would constitute an unwarranted intrusion into normal societal and familial relationships. It would be inappropriate to require siblings, family members or those sharing houses to pay maintenance to each other simply because a relationship or friendship has broken down. In addition, giving the courts the power to make orders restricting or mandating the sale of property would again be an undue interference with constitutional property rights. This issue is extremely complex but I accept that it could be addressed at a later date. Dealing with it in this legislation would inevitably delay what we require to be delivered in a relatively short period, namely, the registration of same-sex civil partnerships.

Many Members who contributed to the debate on the Bill rejected calls for the inclusion of freedom of religion provision and also a provision relating to conscientious exemption for registrars and service providers in respect of, for example, the rental of church property. I agree with the view that there is no basis for providing a right to discriminate against a class of persons on the grounds of freedom of religion or conscience. It would also be against public policy to prevent State officials to choose not to perform certain of their official functions on the grounds that to do so would be contrary to their religious beliefs. A number of Deputies referred to sections 22 and 23 in respect of this matter and stated that the provisions contained therein are new. That is not the case. They are already contemplated in the 2004 Act.

Deputy Crawford and others referred to imprisonment. This is already contemplated in the legislation in the context of the refusal by State officials to perform their other duties in respect of the registration of normal marital situations. In effect, all we are doing is extending that provision in respect of civil partnerships.

I wish to refer to some unintended consequences that could result from the inclusion of a freedom of religious conscience clause in the legislation. What would be the consequences if we were to allow officials to choose the parts of their job they would not do on the basis of their religious beliefs? In this regard, a registrar could refuse to register the marriage of a person who has been divorced. This matter has not arisen since the introduction of our divorce legislation and no registrar has indicated that he or she might have any particular problems with the Bill before the House. Other possible consequences could include a court clerk refusing to issue divorce orders; a science teacher refusing to teach about evolution; a fundamentalist Christian Garda refusing to arrest a husband who is breaching a safety order on the basis that he is entitled to chastise his wife; a judge refusing to register a power of attorney in favour of a person's civil partner; a Muslim or Mormon accident and emergency doctor refusing to treat someone presenting with alcohol poisoning; an official of the Department of Social and Family Affairs refusing to pay carer's allowance to a person's civil partner; or a probate officer refusing to issue a grant of administration to a deceased person's civil partner.

If we were to put in place a freedom of conscience clause, it would have completely unintended consequences. In addition, it would run completely contrary to policy to allow public servants to pick and choose in respect of the view of either the Oireachtas or the Executive regarding duties which must be carried out. As Deputies on both sides correctly pointed out, anyone is entitled to know that the services in respect of which provision is made in legislation will be provided without fear or favour. I cannot accept any amendments on that issue.

I wish to clarify for Deputy Barrett, who raised the issue, that the offences outlined in sections 22 and 23 of the Bill are not new. These provisions extend to civil partnerships the exact penalties already provided for in the Civil Registration Act 2004 for the failure on the part of the registrar to perform statutory duties regarding the registration of marriages. Providing exemptions on freedom of conscience grounds in the supply of goods and services would roll back the very extensive equality legislation introduced by successive Governments and supported by the House in the past dozen years. The conscientious objection amendment to the Equality Bill in the UK mentioned by Deputy Barrett was actually opposed in the House of Lords and was subsequently withdrawn by its proposer.

Deputy Charles Flanagan sought information on the operation of schemes for the protection of cohabitants in other jurisdictions. This matter was examined and reported on by the Law Reform Commission, which recommended the redress scheme in its 2006 report on the rights and duties of cohabitants. The Colley group also examined what are referred to as "presumptive schemes" in other jurisdictions and these are described in the options paper also published in 2006. The Deputy also drew attention to the need to raise awareness of cohabitants to the new obligations arising under the Bill. This matter will be addressed before the commencement of the cohabitants scheme.

The Deputy commented that legal experts have warned that the presumptive nature of the cohabitants redress scheme could give rise to legal challenges and that ambiguities in the Bill regarding the establishment of when cohabitation began may present problems. I shall, of course, take into account his remarks for further consideration. However, section 170 expressly defines the periods of cohabitation required to qualify under the redress scheme and provisions already exist in the Domestic Violence Act 1996, for example, that prescribe periods of cohabitation for the purpose of that Act. I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General's advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant.

Deputy Shatter also raised a number of points on the cohabitants redress scheme. His first point was that the scheme would only provide minimal real protection. However, in formulating the provisions for cohabitants I was conscious of the necessity to protect the autonomy of those who choose not to marry and indeed those who in due course choose not to register as civil partners. The Bill's redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.

The Deputy questioned the policy behind the shorter timeframe necessary to become a qualified cohabitant, where there is a child of a relationship. In its recommendation the Law Reform Commission acknowledged that the provision for a shorter timeframe would be desirable where there is a child of the relationship and the Government agrees with this recommendation. The law does not treat everyone in the same way regardless of his or her circumstances. There is a clear case for different circumstances warranting some differences in treatment in the Bill. The Deputy suggested that the redress scheme should apply from the date of the publication of the Bill so as not to encourage people in the meantime to extricate themselves from relationships with a view to avoiding obligations of one to another. There may be difficulties in seeking to apply the financial and property obligations arising under the Bill before its enactment, but we can return to the issue on Committee Stage.

Deputy Ciarán Lynch asked if it was intended to introduce an amendment on Committee Stage to provide that an order made in favour of a qualified cohabitant could not affect the entitlement of a civil partner. I refer the Deputy to section 206 of the Bill, which obliges the court when making orders under the Bill to have regard to the rights of others with an interest in the matter including a civil partner or a former civil partner.

Deputy Howlin sought to provide in the Bill for retrospective recognition of foreign civil partnerships if one partner dies before the provisions of section 5 become operable. I am very conscious that some people in committed long-term relationships, whether they have entered into a civil partnership elsewhere or not may, sadly, not live long enough to have their relationships recognised under Irish law. However, the Deputy will be aware that the issue of providing retrospective recognition has always presented a difficulty in legislation. Providing for it would introduce profound uncertainty into succession, pension and tax law. Where pragmatic solutions can be achieved without creating this uncertainty, I am very willing to consider them, but blanket retrospection of entitlements is simply unworkable. The Lourdes marriage provision in the Marriage Act 1972 does not provide a precedent if only because those who married in Lourdes believed themselves to be fully legally married under Irish law as it then applied. Couples who have registered civil partnerships or same-sex marriages abroad can have no such expectation regarding those relationships.

Several Deputies indicated that they would propose amendments on Committee Stage and I look forward to examining and debating these. Regarding Government amendments, a certain amendment to the Domestic Violence Act 1996 was not carried through consistent with the policy that was proposed in the general scheme. I propose to introduce this provision by means of a Committee Stage amendment. The proposal will allow a person to apply for a safety order against a person with whom he or she had a child in common even if the couple concerned never lived together. The occasion of access to children can be difficult and safety issues often arise. While it is in the best interest of the child to ensure that he or she can develop a relationship with both of his or her parents, this should not be at the expense of the safety or well-being of either of the parents. That is detrimental to everyone, including the child who may be caught in the middle. Making safety orders available in law, if necessary, in such circumstances sets down a clear marker that violent and intimidating behaviour is not acceptable. I hope to introduce an amendment to ensure the Bill is not found wanting in this regard.

The Civil Partnership Bill will put in place a legal regime that reflects many forms of partnerships in modern Irish society. It provides legal protection for cohabiting couples and essential State and societal affirmation of same-sex couples. I thank all the Deputies for the very considered contributions they made on the Bill. I look forward to the debate on Committee Stage when we can tease out these issues in more detail.

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