Dermot Ahern (Louth, Fianna Fail)

The Attorney General has advised that it is essential to provide additional rights for the children of an intestate civil partner in order to vindicate the constitutional protection of the marital family. Thus children of a deceased civil partner may apply to the court for provision out of the estate. This applies regardless of whether the children are the children of a prior marriage, because I do not consider it acceptable to treat children differently under succession law on the basis of whether their parents were married. The effect of subsection (3) in this case may be to reduce the share of the estate taken by the surviving civil partner. This is mitigated by providing in subsection (3) that provision be made for a child only if the court is of the opinion that it would be unjust not to make the order after considering all the circumstances, including those set out in subsection (3)(a) to subsection (3)(d). This is a balance struck on the provisions so that the constitutional position is respected, while ensuring the civil partner is not unjustly deprived of a share in the partner's estate.

Deputy Howlin highlighted that the effect of the provisions he seeks to delete is to remove certainty on succession on intestacy for a person whose civil partner has children. He is correct in this. Where a deceased civil partner dies intestate with no children, the provisions on intestacy are identical to those for a spouse with no children. Where a deceased civil partner dies intestate and has children, subsections (3) to (7) allow the child of the civil partner to apply for a greater portion of the estate than the intestacy provisions set out, and this may cause greater uncertainty for the surviving civil partner in particular. The share for which that child may apply is for a maximum of the portion of the estate to which he or she would have been entitled had the parent died with no spouse and no civil partner.

These provisions have been carefully construed in close consultation with the Attorney General in order to protect the constitutional rights of the civil partner's child, who may be the child of a marital family. I do not accept that there will be a flood of litigation and the numbers of affected surviving civil partners may very well be small. An application to court may arise under the section only if there is no will and if the deceased civil partner has children, whether from a previous marriage or otherwise.

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