Wednesday, 5 May 2004
Family Law: Motion.
Michael McDowell (Dublin South East, Progressive Democrats)
This paper contains a comprehensive examination of the law as regards cohabitees and makes recommendations for change. It does not recommend any new institution such as registered partnerships and does not analyse this question, which is for another day but is not far off. Instead, it makes proposals in individual areas of the law that would improve the situation of cohabitants. It repeatedly stresses, as it successively discusses the various subjects that arise, that the commission's overall approach is that cohabitation is not to be equated with marriage. In general, the commission appears to endeavour to propose solutions that correspond with the status of cohabitation rather than the lifelong commitment of married persons with a view to generating children, which is the primary purpose of the protection given to marriage.
In discussing this paper it should be stressed that it is a consultation paper and not a report. The commission has invited observations by September next and will then proceed to draw up a final report making definitive recommendations. I look forward to the outcome of that process and hope that the All-Party Committee on the Constitution will have regard to the finalised report when that process of consultation has concluded.
A notable feature of the consultation paper is that the reforms being proposed would apply to what are termed "qualified cohabitees", but what I hope will be referred to as qualified cohabitants, defined as persons who live together in a marriage-like relationship for a continuous period of three years or, where there is a child of the relationship, of two years. This includes relationships between same sex or opposite sex couples, neither of whom is married to each other or to any other person. The commission argues that the exclusion of any person who is married is necessitated by Article 41 of the Constitution, which deals with the family.
Among the specific provisional recommendations are the right for cohabitants to apply for a property adjustment order and a maintenance order in certain circumstances; the right to apply for relief under succession law where provision has not been made in the will of the deceased cohabitee; the extension of the definition of "cohabitation" in social welfare legislation to include those in same sex relationships; a relationship of qualified cohabitants should be recognised by the taxation code; qualified cohabitants should get more favourable treatment for the purposes of capital acquisitions tax and stamp duty, corresponding to that accorded to closely related persons but not as favourable, they argue, as that applying to a married couple; qualified cohabitants should be given greater recognition in the context of health care situations and decision-making; qualified cohabitants, not just those living together as husband and wife, should be included in the definition of "dependants" for the purposes of civil actions for wrongful death; and the residency requirement in respect of barring orders for cohabiting couples should be reduced and removed for cohabitants seeking a barring order where they have the sole ownership or tenancy in the property, and also in respect of safety orders.
The general text of that paper accords with views I expressed at the Progressive Democrats conference in March when I said that legal recognition should be given to same sex unions or civil partnerships in some fashion but that this recognition should not put such unions on the same legal basis as marriage. I understand from remarks attributed to Senator Norris that he is in agreement with me on that proposition. Those who are of a socially conservative disposition or who are worried by all these events should pause to ask whether any of this will damage the social fabric of society. Does it damage the social fabric of society if people who are living together currently have the tax break the Minister for Finance, Deputy McCreevy, gave them, and does it strengthen the fabric of society to deny people the other proposed changes which are to be found in the Law Reform Commission's report?
Social reality is changing and the law must respond in order to treat people in non-marital relationships equitably. Whereas I can see that Deputy Norris, coming from the point of view of equality for homosexuals in our society, is looking at this as a question of sexual orientation equality, there are other areas where there are non-sexual relationships which deserve some degree of support.