Michael McDowell (Dublin South East, Progressive Democrats)

In these two sections, which are not simply details but central issues in the Bill, there are major constitutional, philosophical and discriminatory issues to be addressed.

Irish law already takes into account in a number of ways non-marital relationships. As referred to earlier, capital acquisitions tax has been changed. The Guardianship of Infants Act, as amended, provides for the appointment of unmarried fathers as guardians of their children in certain circumstances. The Domestic Violence Act 1996 also covers non-marital relationships.

The needs of cohabiting couples, many of whom want to share property, home life, income, and perhaps deferred income in the form of pensions, and those who want to care for each other and be cared for in that context in a next-of-kin hospital situation and so on, require legal protection and are imminently suitable for legal reform. As a society, we must give thorough consideration to what course we can and should follow in this very sensitive area. We must decide what we are trying to achieve. For example, do we want to focus on particular rights of importance to cohabiting couples, which should be given the protection of law or do we want to give cohabiting couples a status equivalent to marriage, as proposed in section 6 of the Bill? Extending some State recognition to partnerships between persons who decide to create a relationship of mutual dependence, care and love between themselves, whether the relationship is heterosexual, homosexual or non-sexual, is qualitatively different from the alternative course, which is providing a status equivalent to, and attracting the same rights and entitlements as conventional marriage which is up to now a status based on a male-female monogamous relationship for the duration of the life of the marriage.

Heterosexual couples currently have the option of marriage open to them. We must ask ourselves what it is about marriage that is causing many heterosexual couples to say "No thanks". Why will they not avail of all these extra rights in terms of pension, property, tax and social welfare? What is holding these people back from saying "no" in this regard? While I am not in a position to offer a comprehensive answer to that question now, it must be addressed. It might raise the question that there are obligations going with marriage, which they are reluctant to undertake. Senator Terry put her finger on the point when she criticised the Bill — even though it is a criticism I would not share in regard to civil partnerships — on the basis that the dissolution provisions are a good deal more lenient than those which currently apply to marriage. If a civil partnership, which has all the attendant rights of marriage, has a let out of six weeks or whatever while marriage under the Constitution cannot be dissolved except under the four year provision, if one is talking about heterosexual cohabitants, one must ask whether it is marriage life that is on offer here, identical in terms of all the rights but different in terms of the fundamental obligations and duties. This is a question which will not go away. I am making that point because we must be honest with each other. I note that section 6 does not mention duties except, by inference, mutual duties. If one is suggesting a relationship which has all the entitlements and rights, but none of the obligations, except in so far as they are bound up in mutual rights, then one is clearly in danger of infringing the constitutional provisions for the protection of marriage. This is giving everyone all the advantages of marriage while discouraging them from undertaking any of the onerous responsibilities.

Heterosexual couples have the option of marriage open to them. If we are to offer them something with all the rights and entitlements of a valid marriage, it should also have the same duties attaching to it. I am one of the few politicians who is prepared to say that in this rights culture in which we live, no right is worth a damn without a co-relative duty. That was taught to me by a former Member of this and the other House, the late John Maurice Kelly, in jurisprudence classes in UCD. Rights without duties are meaningless. They are the stuff of which Soviet constitutions are made but they are nothing unless there are attendant duties.