Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

On 22 May 2015 the people had the historic opportunity to vote in a referendum to extend marriage to same-sex couples. We voted in the largest numbers ever - more than 1.9 million people voted - and we said a resounding "Yes" to marriage equality. In agreeing to add 17 words to our Constitution, "Marriage may be contracted in accordance with law by two persons without distinction as to their sex," the electorate has determined that our lesbian, gay, bisexual and transgender family, friends and neighbours are entitled to share the social and legal supports of constitutionally recognised and protected marriage.

I was moved by the sheer exuberant joy and delight of many LGBT people and their friends, families and communities over that weekend, as, I am sure, were many of my colleagues in the House. Many tears of profound happiness and relief were shed. Ireland made history on 22 May. We are not the first place in the world that said "Yes" to marriage for same-sex couples by way of referendum – the states of Maine, Maryland and Washington in the USA did so in 2012 – but we were the first sovereign state to do so and we did so by a decisive margin. We debated the issues extensively and listened to many arguments. Ultimately, the people made an informed and generous decision on this vital issue.

In the wake of those often passionate debates, it is important to acknowledge that many who voted "No" did so in the belief that it was the right thing to do. Many voted "No" because they feared that a treasured institution would change. I put it to those people now that there is nothing to fear. Marriage will not be weakened by people who passionately wish to be able to marry. Our concept of family will not be damaged by being more inclusive. Instead, marriage has been strengthened and made responsive to the needs of the 21st century. What has changed, unquestionably, is that our society has decided that our institutions have to reflect the diversity of society. Many LGBT people will find this society warmer and more hospitable as a result of the decision made by the people.

The constitutional amendment requires the enactment of implementing legislation so that marriage may be contracted by two persons in accordance with law without distinction as to their sex. The Marriage Bill 2015 will give effect to the referendum result. It will make the essential changes to the Civil Registration Acts 2004-14 to ensure that same-sex couples may legally marry. It will discontinue the statutory scheme of civil partnership so that the option of marriage will be the only option for same-sex couples, as it is currently for opposite-sex couples.

The Bill will effect the removal of the civil partnership option. Civil partnership was not made available to opposite-sex couples when it was introduced on the grounds that it would be a competing institution to marriage. If it were available to all couples who have the right to marry, it would not respect the pledge of the State in Article 41 of the Constitution to "guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." Since marriage will now be available to same-sex couples, the Bill will remove the option of civil partnership after a reasonable transition period. It underlines the firm commitment to defend marriage as a unique and paramount institution.

I realise acutely that many civil-partnered couples have waited years to marry. Many entered civil partnerships as a de factomarriage. While it is not possible to convert civil partnerships into marriage, in view of the distinct differences between them, the Government has sought to make the administrative processes for civil partners wishing to marry as easy as possible. Where a couple have already booked a civil partnership ceremony that is due to take place during the transition period, they will be offered the option of marrying instead, if they so wish, and there will be no fees for any administrative changes. There will be a reduced fee for civil partners marrying each other if their civil partnership was registered in Ireland. There is no provision in the Bill covering this for the simple reason that it is not required. The relevant fees order can be made by the Tánaiste and Minister for Social Protection under the Civil Registration Act 2004. Her intention, which I fully support, is to reduce that fee significantly from €200 to €50.

I will set out some detail on the Bill. It is a short and rather technical Bill, given the profound effects it will have. It consists of 23 sections set out in six parts. I will summarise the main effects of the Bill. The statutory impediment in the Civil Registration Act 2004 preventing parties of the same sex from marrying will be removed. A couple will be able to accept each other in their marriage vows as husband, wife or spouse. Couples already in civil partnerships will be able to marry one another without having to dissolve their civil partnership. As I noted already, couples who have given notice of their intention to enter a civil partnership will be able to opt to convert that notification into notice of their intention to marry. Civil partnership will be closed to new couples after a transition period. Provision is made for religious bodies and religious solemnisers, a matter I will address presently. Finally, foreign marriages between same-sex couples will be recognised under Irish law as marriages.

Part 1 consists of sections 1 to 3. These are standard provisions. The legislation will be known as the Marriage Act 2015. It will be commenced by a ministerial order, which I will make after consulting with my colleague, the Tánaiste and Minister for Social Protection. I emphasise that the intention is to commence the legislation as soon as is reasonably possible. The General Register Office is already preparing for its implementation. I estimate that it should be possible to commence the Bill within a fortnight of its enactment. This brief period is necessary to enable the registrar to contact couples who have civil partnership ceremonies planned to ascertain whether they wish to proceed with a civil partnership or marry instead.

Part 2 is an important substantive section which changes the current impediments to marriage. Section 4(a) removes the impediment that "both parties are of the same sex" from section 2(2) of the Civil Registration Act 2004. This is the most important provision, because it is this change that will, in the near future, allow many loving and committed same-sex couples to solemnise their marriages.

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Paragraph (b) further amends the impediments to marriage. Since commencement of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the impediments to marriage have included that “[O]ne of the parties to the marriage is, or both are, already party to a subsisting civil partnership”. If we did not amend this provision, the 2,000 or so couples who are already in civil partnerships would not be able to marry each other unless they first dissolved their civil partnerships. The Bill modifies that impediment by carving out an exception relating to civil partners who wish to marry one another. The precise exception is then set out in a new section 2B of the Civil Registration Act 2004, inserted by section 6. That new section specifies that “There is not an impediment to a marriage by virtue of both of the parties to the intended marriage being parties to a subsisting civil partnership with each other”. It is simple and limited, and ensures that a couple in a civil partnership wishing to marry each other are not put through the onerous and futile requirement of having to dissolve their civil partnership. Of course, a civil partner will continue to be unable to marry a third party if already in a civil partnership.

Paragraph (c) sets out a new impediment to marriage. At the current time, the impediments to marriage are set out in marriage laws which predate the State. The Marriage Act 1835 specifies that marriages within the prohibited degrees of consanguinity or affinity are absolutely null and void. I shall briefly explain these terms. Consanguinity refers to a blood relationship, as in the relation of people who descend from the same ancestor. Affinity refers to a relationship based on marriage rather than on common ancestry. As Members will know, the current law has specific limitations in place as regards the degree of consanguinity or affinity which may exist between parties to a proposed marriage.

Paragraph (c) of section 4, together with a new section 2A of the Civil Registration Act 2004, inserted by section 5, sets out that prohibitions on the grounds of consanguinity or affinity shall apply to couples of the same sex as they do to couples of the opposite sex, subject to any necessary modifications to those prohibited degrees relating to the sex of the parties. These provisions are in line with our overall policy to interfere in the implementation Bill as little as possible with existing provisions of law relating to marriage. The Bill follows through on that principle and is in place only to the extent that it is necessary to deliver on the decision the people took in the referendum.

Part 3 of the Bill consists of a single section setting out the position for religious bodies and religious solemnisers. A religious solemniser is a person, such as a priest, who is registered with the General Register Office as a solemniser of the church or religious denomination of which he or she is a member. We have been very clear that equal marriage as a right refers to the civil aspect of marriage, and not to any religious or sacramental aspect of it. Historically, many religious bodies in Ireland have carried out the civil aspects of marriage simultaneously with the religious aspects and this will continue to be the case. It has always been the case that religious bodies have substantial discretion in choosing which marriages to solemnise in accordance with the tenets of their beliefs, and it is important to stress that this will remain the case. Nevertheless, it was considered important to make it absolutely explicit in the Marriage Bill that religious bodies will not be compelled to solemnise particular marriages as a consequence of the amendment of statutory provisions. This special provision is limited to the specifically religious activities of religious bodies and solemnisers. It does not affect or restrict the operation of equality legislation more generally.

Section 7 specifies that neither this Bill nor any other enactment shall require a religious body to recognise a particular form of ceremony. A "form of ceremony" is defined as including that form in so far as it relates to the sex of the parties to the ceremony. The effect of this provision is to ensure that no religious body will be required to authorise new marriage ceremonies for same-sex couples. The section goes on to specify that no religious solemniser shall be obliged to solemnise a marriage in accordance with a form of ceremony not recognised by the religious body of which he or she is a member. This is a double-lock guarantee. Neither a religious body nor an individual cleric will be compelled to solemnise marriages which do not comply with the marriage criteria of the relevant religious body.

In short, section 7 demonstrates that the constitutional guarantee contained in Article 44 of the Constitution, namely, that each religious denomination shall have the right to manage its own affairs, is not undermined by this most recent constitutional change. What this means is that religious bodies will not be compelled to do anything by this legislation. They will have the choice to decide whether to solemnise same-sex marriages. I am aware that some religious denominations may decide or may already have decided to enable same-sex couples to marry in their ceremonies. There is nothing in this Bill or in the Civil Registration Act which will restrict them from carrying out the civil as well as religious aspects of these marriages. That decision will be up to them.

Part 4 sets out the arrangements being made for civil partnership. As I have already mentioned, that policy, based on the new constitutional context, is that civil partnership registration will cease after a reasonably short transitional period. Section 8 repeals a large proportion of Part 7A of the Civil Registration Act 2004, which had set out the basis for registration of civil partnerships. Some provisions are retained to ensure proper maintenance of the civil partnership register for the protection of couples who are currently civil partners.

I should, of course, stress that the status of current civil partners will be completely unchanged. There is no question of removing any of the rights and obligations of couples in civil partnerships or of changing their status in regard to each other. They will be free to marry each other if they so choose, but are under no obligation to do so. If they choose, they can remain as civil partners for the rest of their lives. To achieve this, the repeals in the Bill are carefully targeted so they will remove access to civil partnership registration, but will leave the status of existing civil partners unaffected. They will also preserve the registrar’s powers and responsibilities regarding corrections to and maintenance of the civil partnership register.

Section 9 inserts a new Part 7C in the Civil Registration Act 2004 to make certain transitional provisions. The inserted section is a technical one which allows the registrar, on the marriage of a couple who are civil partners, to record in the civil partnership register that the civil partnership was dissolved on their marriage to each other. This is a housekeeping provision; where the couple have registered their civil partnership in Ireland and subsequently marry here, those facts will be fully recorded in the registers.

The new section 59L of the Civil Registration Act 2004 contains important transitional provisions relating to the wind-down of civil partnership registration. For example, for couples who have already notified the registrar of their intention to register in a civil partnership, it provides that they may request that the notification be converted into a notification of marriage. The notification period does not re-set, so a couple who have notified the registrar of their intention to register in a civil partnership on 1 December may be able to convert that notification into a notification of their intention to marry on that same date.

The registrar will contact couples directly in the coming weeks to advise them on the differences that exist between the impediments to civil partnership and those relating to marriage. This is to ensure that in the unlikely event of a couple being prohibited from marrying by the prohibitions relating specifically to marriage, they will be able to proceed to civil partnership instead. The section also provides that where a couple have completed a civil partnership registration form before the commencement date, it will remain valid. The couple will be able to proceed to register their civil partnership within the six month period for which the form remains valid. These are all necessary technical adjustments.

Another exception is made for the very unusual circumstances in which an objection to a civil partnership registration is made. If a couple are unable to register their civil partnership due to an objection which, on investigation, is found to be without merit, they will still be able to proceed to register their civil partnership, even if the finding that the objection is unfounded is not until after commencement of the Bill. Despite the repeals set out in section 8, those repealed provisions will continue to apply in their entirety to the exceptional cases I have just outlined.

Some of the circumstances for which these exceptions are set out, as Deputies will see, are quite unusual and may not arise. However, if they did, the consequences for a couple who found themselves in those situations could be quite grave. They would no longer be able to assume legal rights and responsibilities for each other and receive legal protection for their relationships. The exceptions that we are making are careful and limited. They are designed to ensure that couples who have already commenced the formal legal processes involved in registering their civil partnerships can do so. They are very practical sections.

Section 10 inserts a new section in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Although the general rule is that a civil partnered couple may not dissolve their relationship unless they have been separated for two out of the previous three years, this new section specifies that where a civil-partnered couple marry each other, their civil partnership is dissolved effective from the date of the marriage. This is to ensure that the status of the couple in relation to each other is completely clear and they are not considered to be married and civil partners at the same time.

Part 5 deals with the recognition of certain foreign relationships. It essentially provides that marriages lawfully contracted abroad by same-sex couples will be recognised as marriages here. Under current law, a marriage is not recognised in Ireland if, under the law of their habitual residence, the parties did not have the capacity to marry at the time that they married. If we did not include specific provisions on recognising foreign relationships, this could have serious consequences for Irish couples who married in other jurisdictions before the commencement of this Bill. Subsection (1) therefore specifies that the sex of the parties to a marriage does not preclude its recognition in Ireland. Of course, if there were another impediment, such as one of them being already married or underage, the marriage would not be recognised. The same rules apply.

Subsection (2) specifies that the recognition of a marriage between a same-sex couple will take effect from the date of the marriage or the date on which the section comes into force, whichever is later.

Subsection (3) provides that a marriage recognised under a section 5 order is not precluded from being recognised as a marriage. Section 5 orders are the orders under the civil partnership Act that recognised certain registered foreign relationships as entitled and obliged to be treated as civil partnerships under Irish law. These orders essentially recognised marriages contracted abroad as civil partnerships here because we did not have marriage then so that was the way we dealt with it. These provisions, given that we have a changed situation, are now being removed. These marriages contracted abroad will therefore be able to be treated as marriages with no need for any further action on the part of the couple married abroad.

Subsection (4) provides an exception to the recognition rule for cases in which a couple has married in another jurisdiction and has since dissolved that relationship, whether under the provisions of the civil partnership Act or otherwise. It would be absurd and unfair to subject a couple in these circumstances to having to divorce for, as they would see it, a second time.

Subsection (5) is another transitional provision relating to relationship breakdown. Our constitutional provisions on divorce require that the couple concerned must be separated for four out of the previous five years in order to divorce. This provision takes account of the fact that some couples who married in another jurisdiction may currently have been separated for some time. Recognition of their marriage should not reset the clock, and so a period of separation prior to commencement of the Bill will be taken into account for the purposes of the Family Law (Divorce) Act. There is other legislation for which periods of separation are similarly relevant, including access to certain State benefits. Any pre-commencement separation period will be recognised for those purposes too.

Subsections (6) to (10) of the section repeal each reference in every section 5 order to marriages made in the specified jurisdictions. This ensures that marriages will be recognised exclusively as marriages. There will be no risk of their being treated as marriages in some situations and as civil partnerships in others.

Section 12 sets out a restriction on the recognition of other types of foreign relationship recognised by section 5 orders. I have set out the policy that civil partnership registration for new couples is to close. The last day on which a civil partnership may be registered in Ireland will be six months after the Bill commences. For consistency with this policy, section 5 orders will not recognise new civil partnerships registered in other jurisdictions more than six months after the Bill commences. Couples whose relationships are currently recognised will be completely unaffected by this change. Couples whose relationships are registered after the cut-off date will not be recognised as civil partners in Ireland. However, the option to marry here in Ireland will be open to them.

Part 6 of the Bill amends a range of legislation. Some of the amendments are simply to ensure that a married person has the same rights and obligations whether the person is married to someone of the same sex or someone of the opposite sex. I will outline these very briefly. Section 15 amends the Guardianship of Infants Act to ensure that where a child is jointly adopted by same-sex spouses, both will be the guardians of the child jointly. If either spouse dies, the other will be the child’s guardian alone, or with any testamentary guardian or court-appointed guardian. It also amends section 6B(1) of the Act, which was inserted by the Children and Family Relationships Act 2015. Where the spouse, whether the husband or the wife, of a donor-conceived child’s birth mother is also a parent of the child within the meaning of the 2015 Act, that spouse is also automatically a guardian of the child.

Section 16 amends the Succession Act 1965. The usual rule is that a will is revoked on the marriage of the testator, unless the will is made in contemplation of the marriage. The amendment modifies the rule so that, where civil partners marry each other, a valid will made by either of them will not be revoked by their marriage. A reference in such a will to the testator’s civil partner will be construed as a reference to the testator's spouse. This will reduce the risk of unexpected consequences emerging, possibly many years later, for civil partners who marry each other. It will also eliminate unnecessary administrative burden and costs to them in preparing new wills.

Section 20 amends the statutory provision setting out the declarations to be made by the parties to a marriage within the ceremony. Each of the parties can, as appropriate, accept the other as a husband or a wife or a spouse. This ensures that there is no question of a same-sex couple only being able to accept each other as spouses. This will not require any change to any form of ceremony currently approved. Opposite-sex couples remain free to accept each other as husband and wife. However, this is one of the few provisions in the Bill which has a very small direct effect on opposite-sex couples intending to marry. This is because these couples may also, depending on whether they are marrying in a religious or a civil ceremony, choose to accept each other as spouses, if they prefer.

Section 23 makes a very symbolically important amendment to the Gender Recognition Act 2015, in that it removes the single status requirement for an applicant for a gender recognition certificate. On commencement of that Act, those provisions were not commenced because the marriage amendment had already taken effect. This was a source of great relief for people who feared they would be in the invidious position of choosing between their relationship and their preferred gender. The Tánaiste, Deputy Joan Burton, has done a huge amount of work on these provisions and I am very happy to take this early opportunity to remove them entirely.

As can be seen from what I have said, this is a short Bill. It is very technical. It must deal with many technical issues, but it is clearly a momentous Bill which brings into force the amendment supported by the people of Ireland earlier this year. That result was brought about because of the actions of a very broad range of people and, as I stated at the beginning, because of individual stories, the support the LGBT community got from so many individuals throughout the country, the work of people from Yes Equality and the Marriage Equality campaign and so many individuals who made such a contribution.

The Bill confirms that marriage is not being changed. Couples will go through largely the same arrangements to register a marriage once the Bill has been enacted as on 21 May. However, what will have changed fundamentally as a result of the referendum is the notion that marriage is the preserve of one group and denied to others. What will have changed radically is the idea that some couples' relationships are less valued than others. On 22 May 2015, the people of Ireland sent forth to the world a resounding message about Ireland.

They told the world that Ireland values people in all their diversity. They told the world that Ireland values relationships. They reminded the world that families come in many forms and all deserve our support. We owe it to the people of Ireland to implement what they have decided. We owe it to the many couples who are waiting patiently to get married. That wait is coming to an end. This legislation will enable couples to get married without distinction as to their sex. Finally, marriage equality will become a reality in Ireland. I commend this Bill to the House.

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