Dermot Ahern (Louth, Fianna Fail)

We are dealing with amendments Nos. 8 to 10, inclusive. For the purposes of clarity and record I will set out the rationale in order that our position on each of the amendments is understood. Section 5, to which the amendment relates, provides that the Minister may make an order recognising certain categories of foreign legal relationships as entitled to the same treatment as a civil partnership under Irish law.

Amendment No. 8 tabled by Deputy Flanagan would have the effect that such an order made under section 5 could be made only once on the commencement of the Act. This would only allow us to recognise new categories of relationship as equivalent to civil partnerships which were established by other countries after the commencement of the Act. I reiterate that given that the law internationally on the recognition of same sex relationships is evolving, it is essential that we have the flexibility to make orders on an ongoing basis to reflect these changes. The manner in which the amendment is phrased would mean that the Minister shall, on the commencement of the Act, that is, once and only once, be able to make orders. We would not be able to make any further orders to take into account the changing international legal environment.

On the questions of "shall" versus "may", in some cases time may be required to examine the nature of the category of a relationship from another jurisdiction to determine whether it meets the criteria in subsection(1)(a) to (d), inclusive, for recognition here as a civil partnership. A mandatory requirement that the Minister make an order may expose the State to damages purely for the reason that a given class of relationship is not immediately recognised because careful examination is required or simply because information is not readily available in one of the national languages. I assure the Deputy that given the degree of cross-party support for this Bill and its benefits for same sex couples there is little likelihood of the scenario of a Minister not being prepared to make a relevant order at the appropriate time.

On amendment No. 9, tabled by Deputy Howlin, as I indicated on Committee Stage a relationship entered into prior to the making of an order under section 5 is also recognised by that order. The wording of section 5 makes this abundantly clear. A relevant relationship is recognised from the later of the dates on which the order took effect or on the date on which the relationship was entered into. If, for example, a couple entered a civil partnership in the United Kingdom in 2006, their relationship would be recognised as and from the date on which the relevant order takes effect. If a couple entered a same sex marriage in Spain in 2012, a relevant order having been made in 2011, their relationship would be recognised as and from the date of their marriage. My officials and the Office of the Parliamentary Counsel considered this issue carefully before drafting the Bill. Following the debate on Committee Stage we again received confirmation from the Office of the Attorney General that it believed our interpretation is correct and is the only one possible in this respect.

Amendment No. 10, tabled by Deputy Howlin, would allow the recognition of a foreign civil partnership where one of the partners dies before the section is commenced and possibly before the commencement of the Bill. The effect would be to give recognition of a foreign registered civil partnership entered into, for example, in 2006, where one of the partners died in, for example, 2008 when civil partnership was not recognised in this State. This would introduce grave uncertainty for the tax code and succession law. As I explained during our extensive discussion on this point on Committee Stage, it is not acceptable to provide for retrospective recognition of foreign civil partnerships where there is a potential detriment to third parties, for example, by improving the share of the surviving partner in the deceased partner's estate.

The Deputy argued that the Marriage Act 1972 provides a direct precedence to allow for retrospective recognition. I do not accept this. There is a substantive difference between an opposite sex couple who marry in another jurisdiction with the belief that the marriage is internationally recognised and binding and that of a couple who entered a civil partnership elsewhere in the full knowledge that no provision is made in Irish law for the recognition of that relationship. In the first case, the couple assume and have always assumed that they are married for the purpose of Irish law, with all its obligations and rights. In the latter, the couple can have no assumptions in regard to the rights and benefits which accrue to them under Irish law. The amendment would also have a discriminatory effect on the basis of nationality. Some, out of a particular category of legal relationships where a partner has died, would be recognised as existing at a particular time whereas others would not, depending on whether one or both partners was Irish or resident in Ireland at the time the relationship was registered. A further anomaly would arise simply if a couple registered their relationship before the arbitrary cut-off point of 1 January 2004.

On Committee Stage we also discussed the proposed new subsection (4), which would create a new function for an tArd-Chláraitheoir by enabling him or her to register relationships entered into in another jurisdiction as civil partnerships. I stated during that discussion that the making of a ministerial order under section 5(1) is in itself sufficient to entitle parties to foreign registered relationships to be treated as civil partners of each other under the law of this State. There is no requirement for re-registration. Opposite sex couples who marry in other jurisdictions are neither required nor permitted to re-register their marriages under Irish law and there is no reason couples who are entitled to be treated as civil partners should do so either.

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