Dermot Ahern (Louth, Fianna Fail)

Paragraphs (a) and (b) of subsection (4) are alternatives. Subsection (4) clearly states that two adults are within a prohibited degree of relationship if (a) they would be prohibited from marrying each other in the State, or (b) they are in a relationship referred to in the 2004 Act.

This subsection confines the scope of the Bill to a couple living in an intimate and committed relationship where the couple is not within the prohibited degrees of relationship. The prohibited degrees of relationship as they apply in marriage are long established. The prohibited degrees of relationship for the purpose of the Civil Partnership Bill are set out in section 26. In each case the prohibited degrees of relationship are defined and specific so that persons within these degrees are excluded from cohabitants' provisions.

Deputy Howlin's amendment seeks to replace these clearly defined relationships by a reference to sexual activity which would be an offence having regard to the age of the persons. There is no question of a criminal offence arising out of sexual activity between two adults on the grounds of their age. The reference is, therefore, redundant.

Second, the amendment refers to sexual activity being an offence having regard to the fact that the couple are relatives. This is seriously flawed since the criminal law on incest, the Punishment of Incest Act 1908, defines incest as the carnal knowledge of a male with a female who, to his knowledge, is his granddaughter, daughter, sister or mother or a female aged 17 or over who consensually permits her grandfather, father, brother or son to have carnal knowledge of her, knowing the male is such a relative. This is far less extensive than the list of relatives prohibited from marrying each other on the grounds that they are consanguineous and, notably, does not include sexual relationships between those close relatives of the same sex. This, potentially, allows a large number of other people living together to qualify as cohabitants. This would not only erroneously increase the potential burden on the courts but would undermine the clear recognition by this House, and I am sure by Deputy Howlin, that the intimate and committed conjugal relationship of a couple is qualitatively different from even the closest caring relationship between friends and family.

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