Dermot Ahern (Louth, Fianna Fail)

I said on Committee Stage that this was carefully drafted in order to ensure the constitutional protection for marriage was fully vindicated. Subsection (6) was drafted to ensure that the spouse is not disadvantaged in seeking various ancillary orders on separation or divorce, if the other spouse becomes a qualified cohabitant of the third party who seeks redress under the Bill. The provision ensures that the cohabiting spouse cannot become a qualified cohabitant until the spouses have been living apart for at least four out of the previous five years. It was examined again by the Attorney General during the publication of the heads of the Bill and during the drafting in order to ensure that there was additional protection for spouses, given the constitutional imperative of the protection of marriage.

Deputy Flanagan raised the issue of a couple who cohabit, have a child together but who separate before they have been cohabiting for two years. In such a case, maintenance is payable in respect of a child under the Family Law (Maintenance of Spouses and Children) Act 1976, as amended. However, no maintenance is payable by either cohabitant to the other, as they will not have become qualified cohabitants. It is one of these issues where there is a distinction in order to vindicate the rights of the spouse and to coincide with the constitutional protection of marriage. The time period we are envisaging for this is similar to that which pertains to the qualifying period for divorce. This is the type of compromise that must be reached in order to ensure that this Bill is constitutionally sound. That is the advice I have received from the Attorney General.

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