Charles Flanagan (Laois-Offaly, Fine Gael)

I move amendment No. 35:

In page 86, to delete lines 21 to 29.

This concerns the definition of a qualified cohabitant under section 169. We propose that subsection (6) of section 169 be deleted because it is unnecessarily restrictive. I am concerned that the consequences will give rise to difficulty. It is interesting that this subsection was not included in the original heads of the Bill, published in 2007 and I wonder from where the Minister is coming.

We agree that a person cannot be a qualified cohabitant if one or both persons is, or was at any time during the relationship, married to another person when that relationship has ended, or if a party dies and had not lived apart from their spouse within the appropriate period. I gave an example on Committee Stage and was disappointed that the Minister's response was not in any way understanding or favourable. For the purpose of outlining the hardship involved and for the benefit of the House I shall repeat that example, briefly.

Let us take the example of a husband and wife who separate on 1 January 2010. On 1 March 2011, 15 months later, the husband meets a new partner. On 1 September 2011, the husband and new partner commence living together permanently. In February 2013, the husband and his new partner have a child. The couple decide the mother should give up work and look after the baby. In December 2013, the husband leaves his new partner. Although the woman is a qualified cohabitant because she has been living with her partner for two years and has had a child, nevertheless she is not a qualified cohabitant on the basis that the husband has not lived apart from his wife for the requisite period of four years.

There is a clear injustice there to the dependent cohabitant and her child. This injustice would not be perpetrated on the cohabitant and the child if subsection (6) was removed. There is an issue of equality involved which will give rise to a situation where in the event of one of the parties dying the legal person representative in a constitutional challenge will be embroiled in protracted court proceedings. In effect, we are treating two cohabitants in different ways, depending solely on the marital status of one cohabitant, which is a problem. We adverted to it on Committee Stage and I had hoped the Minister would have given the matter some consideration since then.

There is another example, the case of a cohabitant who was living with a cohabitant, now deceased, who had a valid foreign divorce. That cohabitant would be denied qualified cohabitant status if the divorce, though legally valid, was too recent to allow the deceased cohabitant to be in compliance with the time limit under Article 41.3 of the Constitution. This would arise in a situation where two Irish people marry and divorce in England. They process the divorce within a few months of separating but prior to the divorce being finalised the deceased cohabitant moves home to Ireland to live, has a child with the cohabitant and dies three years afterwards. That cohabitant is denied the qualified cohabitant status which again would not be perpetrated in the form of an injustice on the person if subsection (6) were removed.

Again, I ask the Minister why subsection (6) was introduced in this restrictive manner, having regard to the fact that it was not part of the original heads of the Bill that were published in 2007.

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