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

The proposed amendments have a number of aims. One is to preserve civil partnership. The second is to open civil partnership to opposite-sex couples and non-conjugal couples such as cohabiting family members or friends. The third is to widen the scope of the redress scheme provided in Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 so that it also encompasses non-conjugal couples. I want to address these matters which were subject to significant consideration in the preparation of the Bill.

As the House will be aware, the rights and obligations of civil partnership are broadly comparable with those of marriage, although civil partners do not have the additional constitutional recognition and protections that spouses have. This means that allowing civil partnerships to continue as an alternative to marriage is fraught, as I stated on Committee Stage and previously, with constitutional difficulties. When the constitutional interpretation was that same-sex couples could not marry, there was a clear justification for setting up the statutory scheme of civil partnership. It enabled same-sex couples to enter a formal and recognised relationship with each other, to take on extensive rights and obligations in relation to each other, and to have strong legal protections and benefits in that relationship. Those rights, obligations, benefits and protections correlated closely with those afforded to spouses in a marriage. The constitutional context has now changed following the vote. In the wake of the referendum and after the passage of this Bill, same-sex couples will be able to marry each other. This means that the rationale that was there for providing civil partnership for same-sex couples is falling away. Deputy McNamara talks about that six-month period. That is no more than discontinuing the situation in an orderly way and I think courts would recognise that.

The policy the Government has adopted in the Marriage Bill based on extensive and careful analysis and legal advice is that civil partnership will be discontinued in an orderly way. The advice I have is that to consider maintaining access to civil partnership creates an unacceptable risk that the statutory scheme would become constitutionally non-compliant. There is, therefore, a risk that a constitutional challenge to its continuation would be successful and civil partnership could be struck down. This could have serious consequences for current civil partners. That is a consideration as well, regarding a threat to the rights, obligations and protections of civil partnership. That is the constitutional context that, I have been advised, has to be taken into account. Neither would it be appropriate to downgrade civil partnership in order to make its continuation less constitutionally risky. This is because the consequences for civil partners would be significant. They have a reasonable expectation that their rights, protections and obligations will continue in force unless and until they dissolve the relationship, should that happen.

To take up another element of Deputy McNamara's proposals, the intention of his amendments is that civil partnership would also be available to non-conjugal couples such as siblings or friends living together in the long term. It is worth noting that being in a civil partnership is an impediment to marriage. This would probably be seen as an unacceptable infringement on the right to marry set out in the European Convention on Human Rights. Also, there is little evidence of a demand for civil partnership in this particular circumstance for these couples. I remind the House, as Deputy McNamara will be well aware, that siblings are already in a preferred category in terms of succession rights, and, similarly, where two persons live together and one of them leaves a shared home to the other, the survivor may benefit from favourable treatment. Obviously, there is that situation which is set out in the Capital Acquisitions Tax Consolidation Act 2003.

Finally, Deputy McNamara suggests an extension of the redress scheme set out in Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The Deputy's proposal is intended to enable couples, such as family members or friends living together, to have access to the remedy set out in Part 15. A person would in certain circumstances be able to apply for maintenance or for a property or pension adjustment order from his or her friend or family members with whom he or she had been living, but there is not that much evidence that people want this. There has not been substantial consultation in this area since 2006 when both the Law Reform Commission and my Department separately held consultation on what rights and obligations should be extended to cohabitants. The Law Reform Commission observed importantly in the wider sense in relation to cohabitation that "It would be difficult, however, to devise a scheme that would apply to all these relationships. It would assume that a single rationale could be uniformly applied to such diverse situations." The Working Group on Domestic Partnership also stated: "In view of the dearth of submissions made, the Working Group found it difficult to consider in any depth the nature of the diverse relationships in this category and the options for and consequences of according legal recognition."

In the absence of any major developments or evidence of demand for greater access to that redress scheme, I take the view that it is not appropriate to accept these amendments. The scope of the Bill is specifically limited to the measures that are necessary to enable same-sex couples to marry, not to wider law reform in the sphere of personal relations that Deputy McNamara describes. I think the Deputy would accept that this is outside. These are broader issues that arise in relation to these issues which have been considered by both the constitutional law group and the working group. The Deputy can see the complexity of the issues from the short piece that I quoted.

I repeat the point in terms of my legal advice that continuing civil partnership for couples in Ireland creates constitutional difficulties. Deputy McNamara describes that as conservative advice. It is the advice that the Government has taken. It is the advice that we have been given which I respect. There are particular constitutional issues, as the House well knows, that arise in Ireland given the Constitution that must be taken into account. We have got this important change through by going out to the people by way of referendum and that is the way one brings about such change.

Recognising foreign registered partnerships is an equality issue as it would make an option available to couples who have registered partnerships abroad that will not be available to Irish resident couples.

Other changes would have to take place for it to happen. We do not recognise opposite-sex registered partnerships, and arrangements are being proposed for same-sex couples. There are varying complexities to the issue and it is not simple in that constitutional issues come into play. I would not want to risk anything here. It is very important. The people have very clearly expressed their will regarding the contents of the Bill and everybody in the House wants us to move the legislation forward quickly. This is the advice I have received and I am putting it to the House.

See this speech in context