Brendan Howlin (Wexford, Labour)

I agree with the rationale put forward by Deputy Flanagan on this matter. We are discussing the partial exclusion of people from availing of the provisions of cohabitation based on marriage. In its consultation paper, the Law Reform Commission originally proposed to exclude all cohabiting relationships where one or both cohabitants is married to a third party. I understood the reasoning behind the commission's view was that if the State, by its laws, were to recognise and improve the position of a cohabitee who is already married to somebody else those laws would undermine the constitutional institute of marriage. That was the reasoning the Minister gave on Committee Stage.

The Law Reform Commission changed its view because it was criticised. In its report it changed its attitude and accepted it would not be appropriate to exclude married cohabitants. Although the Minister does not include a general exclusion in this subsection he has made a partial exclusion. The effect of the subsection is to remove from the definition of qualified cohabitant someone who lives with a person who may be long separated but not formally divorced from a former partner.

They could be separated for four years, although not formally divorced. After four years, the Bill as proposed would be prepared to include such couples. It is my view that this will create unfairness and discrimination.

There is also a contradiction between subsections 4(a) and subsection 5, because subsection 5 implies that at least some married persons could be cohabitants, whereas subsection 4(a), taken in conjunction with subsection (1), implies that no married persons are cohabitants. My advice is that this constitutes an arbitrary and an unnecessarily complex set of exclusions. I hope the Minister reflects upon that.

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