Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I acknowledge what the Leas-Cheann Comhairle stated and I will of course comply. I wish to address the issues raised by Deputy O'Callaghan in a general manner . As he is aware, the provisions of Part IV of the Criminal Evidence Act 1992 do not prohibit one spouse from testifying against the other but provide that a spouse is competent to give evidence except where both spouses are co-accused. Section 22 provides that a spouse is compellable at the instance of the prosecution only in limited circumstances.

The question of amending Part IV of the Criminal Evidence Act 1992 to extend the provisions relating to the competence and compellability of spouses and former spouses to give evidence so that they would also apply to civil partners and former civil partners, which is the issue at hand, was considered during the drafting of the Bill that became the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

At the time, the Attorney General advised against the inclusion of such a provision because of concerns relating to Article 41 of the Constitution. The Attorney General advised that Article 41 requires a clear distinction between the institution of marriage, as recognised by the Constitution, on the one hand and a civil partnership on the other. A further reason for not including such a provision for civil partners was the constitutional protection for the institution of marriage having the effect of protecting the privacy of the marital relationship.

In the Dáil and in Seanad Second Stage speeches on what became the 2010 Act, the then Minister informed the Houses that the Attorney General had advised that in order to comply with the Constitution, it was necessary to differentiate the recognition being accorded to couples who register their partnerships with the special recognition accorded under the Constitution to persons who enter into a contract of marriage.

I should also mention that the Law Reform Commission examined issues relating to marital privilege in its 2004 consultation paper on the rights and duties of cohabitees and did not recommend any change to the existing position.

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