Mary Henry (Independent)

I move:

That Seanad Éireann calls on the Government to furnish the House with a report of progress to date and future plans aimed at securing the full compatibility of Irish family law with Article 8 of the European Convention on Human Rights, with particular reference to the Convention rights of non-marital and one-parent families.

I apologise for being unable to agree to the proposal that the previous debate be allowed to continue for a further 15 minutes, but the seconder of this motion will have to leave almost immediately. I am surprised that the Government has tabled an amendment, which is almost the same as the motion itself. I sought to word the motion in a non-contentious manner, as I usually do. My motion does not seek to undermine Article 41.3.1° of the Constitution, in which the State "pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack". Anyone who reads the consultation paper on the rights and duties of co-habitees, published last week by the Law Reform Commission, will see that it states exactly the same. The consultation paper does not apply to couples if one of them is married.

The recent enactment of the European Convention on Human Rights Act 2003 has cast a spotlight on many aspects of Irish law, most particularly on our laws concerning family life. The Act somewhat belatedly incorporates the provisions of the European convention into Irish domestic law. The Act broadly requires Irish domestic law to comply with the provisions of the convention. If a provision of Irish law infringes the convention, it is open to a court to make a declaration of incompatibility with the convention.

Article 8 of the convention requires the contracting states to respect the private and family life of all persons, among other issues. In interpreting the scope of the rights protected by Article 8, the European Court of Human Rights has taken a broad and generally inclusive view of the concept of family life. The court has consistently ruled that Article 8 concerns not only the traditional family, based on marriage, but extends its protective scope to families that do not fit this classical mould.

I wish to declare an interest by stating that I have been the president of Cherish, which is now known as One Family, for many years. The organisation provides support to single women with children. Many one-parent families have emerged as a consequence of divorce and separation, etc. I have a special interest in this area.

The case law of the European Court of Human Rights has established, for example, that for the purposes of the convention, the term "family" includes a non-marital cohabiting couple, particularly if the couple has children, as well as a one-parent family, regardless of whether it is based on marriage. The court has also affirmed that a non-custodial parent and his or her child may enjoy a legally protected family life for the purposes of the convention.

I wish to compare this stance with the position in Irish law. In stark contrast to the position of the European Convention on Human Rights, for most purposes, Irish law recognises only the family based on marriage. Family units not founded on matrimony enjoy next to no rights with fewer obligations towards their members. A couple cohabiting outside of marriage are deemed for most legal purposes to be strangers before the law, being no more obliged to each other than flat mates. While the position of the non-marital child has been greatly ameliorated by the Status of Children Act 1987, the position of each parent vis-À-vis the other parent of that child is unenviable. No matter how profound or lengthy their relationship or how stable their family, the law still regards both the non-marital mother and father as legal strangers.

Cohabiting couples are subject to none of the extensive rights and obligations of married couples. Take for instance the example of a woman living with a man who is not her husband. The woman becomes pregnant and decides to take time off to rear her family. Working as homemaker, she cares for her child and partner for several years. Several years later she has another child with the same man and decides to stay at home again to care for her children. If her partner were to leave her, the woman, despite her considerable effort and sacrifice, would not be entitled to a single cent of maintenance from her partner while her children would. Even if he has promised solemnly to maintain her through thick and thin, such promises are legally unenforceable as maintenance agreements between cohabiting couples are not legally recognised in this State.

Without making financial contributions towards its purchase, she will have no claim over the property of her partner should their relationship founder. In particular, the provisions of the Family Home Protection Act 1976 do not apply when the parties are not married. The home, therefore, in which she and her children reside could be sold from under her without her knowledge, let alone her consent. Many people who are cohabiting do not realise that the notion of common law husband or wife is an urban myth.

If her partner were to die without making a valid will, moreover, she would not be entitled to any portion of his estate, regardless of the length or the profundity of her relationship with the deceased. The Succession Act 1965 entitles the spouse of a deceased person to the majority of his or her estate, if a valid will was not made. Even if the wife was disinherited by a written will, she would still by law be entitled to override it, taking one third of the estate if the couple have children and a half if they do not. By contrast, where a non-marital cohabiting partner dies without making a will, his surviving partner is left high and dry as she is not entitled to any portion of the deceased's estate. There is moreover, no provision in law to remedy the situation where a deceased person excludes a non-marital partner from his will.

Ironically, these legal deficiencies are most glaring when legal protection is arguably most necessary. If a woman's non-marital partner were to be hospitalised in circumstances where he was unable to make decisions for himself, she would not be permitted to make such decisions on his behalf without an iron cast power of attorney. She may, therefore, find herself excluded from crucial decisions pertaining to her loved one's health, such as where a partner is unconscious and on a life-support machine. It is also worth noting that a 50 year old woman in an intimate relationship for some years may find that next-of-kin for legal purposes will be her parents or a sibling.

The tax system favours married couples over non-marital couples, though less so since the introduction of individualisation in the tax assessment of married couples. In particular, a non-marital partner will pay significantly more inheritance tax on donations made by a deceased partner than will a spouse receiving property on the death of his or her husband or wife. Married persons are exempt from gift and inheritance tax in respect of transfers between spouses. By contrast, non-marital partners enjoy no such exemption, exposing them to high levels of capital acquisitions tax when a partner dies. Similar spousal exemptions in respect of capital gains tax and stamp duty are not available to non-marital couples.

Section 151 of the Finance Act 2000 remedied this disparity by creating a tax exemption where a property that is the principal private residence of the cohabitees is bequeathed on death to the surviving partner. However, certain limitations exist such as the surviving partner must have lived with the deceased for three years prior to the latter's death and not have another house in her possession. If the surviving partner moves house within six years of the deceased's death, she can expect to pay full capital acquisitions tax based on the market value of the house.

Some might suggest that she has no one but herself to blame for this predicament. If she wants to enjoy the rights that flow from marriage, then she should get married. Many cohabiting couples intend just that. When working in the Rotunda, I often asked women having children in cohabiting relationships if they would not get married. Most intended to but were either saving for the wedding or some other occasion that comes in the way. Marriage may also not be an option as one of the partners may already be married but can only become eligible for divorce at least four years after separation. Other couples may, despite their best efforts, split before they reach the altar. Same sex couples, of course, cannot marry and are left in a particularly invidious position which Senator Norris will address.

Marriage remains popular, although people now tend to marry later than in former times. Some centuries ago, it was not popular because it only made a difference to those with property. However, there is no denying the underlying growth not only in the number of couples who are delaying marriage, but also in the proportion of families living together with no expectation of marriage at all. For various complex reasons the phenomenon of the non-marital family has become decidedly more prevalent in society.

Ireland in the 21st century has a two-tier system for the recognition of family rights and obligations. This legal situation is underpinned in Article 41 of the Constitution that recognises the family based on marriage as the natural and fundamental unit of society. The Constitution consigns the growing number of alternative family forms, such as non-marital partners and lone, unmarried parents and their children, to a legal no-man's land. This narrow perspective has, in turn, informed legislative developments where the rights and obligations conferred on married persons are unavailable to families not based on marriage. However, of the 900,000 family units enumerated by the 2002 census, 12% were one-parent families, 85% of which were headed by a woman. There were approximately 30,000 cohabiting couples with children and approximately 47,000 cohabiting couples without children. These figures show the reality of life for many people in society.

The legal distinction between non-marital and marital children was, for most purposes, abolished by the Status of Children Act 1987. There is still discrimination against the child of marriage regarding adoption. Constitutionally, a non-marital child can be adopted with the consent of his or her mother and any other guardian. However, the child of married parents cannot be approved for adoption in this manner. Due to the restraints created in Article 42 of the Constitution a marital child can only be adopted when there has been a complete and comprehensive abandonment of the child that is likely to last until the child reaches 18 years of age. Legally, it is a difficult predicament to establish that this has happened. Ironically, it illustrates how the constitutional preference for marriage can work to the disadvantage of some members of the marital family unit. A child in long-term foster care may find that she cannot hope to attain the long-term stability that adoption may provide simply because her parents are married.