Dermot Ahern (Louth, Fianna Fail)

Section 83 was examined in detail on Committee Stage. I indicated at that time that the section as formulated is essential to provide additional rights for the children of a civil partner who dies leaving a will in order to ensure in all cases that the constitutional protection of the marital family is vindicated. This provision is included following strong advice from the Attorney General.

To achieve a balance between the constitutional imperative to protect the marital family and the succession rights of a civil partner on testacy, section 83 ensures that where a child of a civil partner applies under section 117 of the Succession Act for provision from the deceased parent's estate, an order shall not affect the share of the surviving civil partner unless the court considers it would be unjust not to make the order taking account of all of the circumstances, including the testator's financial circumstances and his or her surviving partner. This is a high threshold for making an order which would reduce the surviving partner's share and provide significant protection to the surviving partner.

Amendments Nos. 25 and 26 to delete section 83 of the Bill would be highly significant and would have the effect of leaving the surviving partner's share in the estate of the deceased partner wholly unprotected if a child or children of the deceased were to make an application under section 117 of the Succession Act for the provision from the estate of their parent. The amendment does this by removing any restriction on the court's discretion to reallocate the share of the civil partner.

The effect of amendments Nos. 25 and 27 would leave the surviving civil partner's share in the estate of their deceased partner as strongly protected as that of a spouse if a child or children of the deceased were to make an application under section 177 of the Succession Act for provision from the estate of their parent. This would risk upsetting a fine constitutional balance. The provision in the Bill is carefully constructed to ensure that the rights of children, who may be the children of a marital family, are fully vindicated while affording a high level of protection to civil partners. Spouses are afforded a higher level of protection because of the constitutional protection for the institution of marriage. Following enactment of the Civil Partnership Bill 2010 and, as succession law stands, section 117 applications may be made in any case. Section 83 will not encourage or impede children in making section 117 applications but will allow the court to make an order in their favour to the surviving civil partner's detriment only if it is unjust not to make the order. I believe this achieves a fair balance of the competing rights.

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