Dermot Ahern (Louth, Fianna Fail)

Amendment No. 7 proposes to specify that a relationship entered into prior to making an order under section 5 is also recognised by that order. However, there is no doubt that this is already the case. The wording of section 5 makes this abundantly clear. A relevant relationship is recognised from the later of the date on which the order took effect or the date on which that relationship was entered into. For example if a couple entered into a civil partnership in the United Kingdom in 2006, that relationship will be recognised as and from the date on which the relevant order takes effect. If a couple entered a same-sex marriage in Spain in 2012, a relevant order having been made in 2011, their relationship will be recognised as and from the date of their marriage. Officials in the Office of the Parliamentary Counsel considered the issue carefully during the drafting of the Bill. Since the passage of the Bill through the other House my officials have again reconfirmed with the Office of the Attorney General that this is the correct and only interpretation possible. As I believe Senator Bacik has already acknowledged, amendment No. 7 is unnecessary.

On amendment No. 8, section 5 makes provision for recognition by ministerial order of certain legal relationships entered into by same-sex couples in other jurisdictions as being entitled to the same legal treatment in Ireland as a civil partnership. The amendment is intended to allow such relationships to be recognised as a civil partnership and a marriage, presumably in the case where the relevant relationship is a marriage between a same-sex couple entered into in a country such as Spain, Canada, Belgium or South Africa, which provide for marriage between same-sex couples.

Public discussion since the Bill was published has concentrated on a number of specific areas of which the most fundamental is why we have not decided to open civil marriage to same-sex couples. My clear legal advice on this area has consistently been that it would not be constitutionally sound to legislate for same-sex marriage without holding a constitutional referendum on the definition of family. Marriage may not be expressly defined in the Constitution, but it has always been understood in common law as being between a man and a woman, ideally for life. I do not believe the necessary political and social consensus exists to make such a constitutional referendum desirable. The all-party Oireachtas Joint Committee on the Constitution concluded that a referendum to change the definition of family would be extremely divisive and would by no means be certain of success. When I was party to the Commission on the Family, its report was unable to define the family as such.

Amendment No. 9 allows for recognition of foreign civil partnership where one of the partners dies before the section is commenced and possibly prior to the enactment of the Bill. The effect would be to give recognition here of a foreign-registered civil partnership entered into, for example, in 2006 where one of the partners died, for example, in 2008 when civil partnership was not recognised in the State. This would introduce grave uncertainty for the tax code and for succession law. It is not possible to provide for retrospective recognition of foreign civil partnerships where there is a potential detriment to third parties, such as by improving the share of a surviving partner in their deceased partner's estate.

It has been suggested that the Lourdes Marriage Act 1972 provides a direct precedent to allow retrospective recognition. However, I cannot accept this. There is a substantive difference between the situation of an opposite sex couple who marry in another jurisdiction with the belief that marriage is internationally recognised and binding, and that of a couple who enter into a same sex civil partnership elsewhere in the full knowledge that there is no provision made in Irish law for recognition of that relationship. In the first circumstance, the couple have always assumed that they are married for the purposes of Irish law with all its rights and obligations. In the latter circumstance, the couple can have no assumption in respect of rights and benefits that would accrue to them under existing Irish law.

The amendment would also have a discriminatory effect on the basis of nationality. Some of a particular category of legal relationships where the partner has died would be recognised as existing at a particular time, whereas others would not be recognised, depending on whether one or both of the partners was Irish and was resident in Ireland at the time the relationship was registered. A further anomaly would arise simply if the couple had registered the relationship before the arbitrary cut off point of 1 January 2004.

The amendment also proposed the insertion of a new subsection 4. This would create a new function for an tArd-Chláraitheoir in enabling him to register relationships entered into in another jurisdiction as civil partnerships. The making of a ministerial order under section 5(1) is sufficient in itself to entitle the parties to foreign registered relationships to be treated as civil partners of each other under the law of the State. There is no requirement or necessity for re-registration. By way of comparison, opposite sex couples who marry in another jurisdiction are neither required nor permitted to re-register their marriages under Irish law. There is no reason that couples entitled to be treated as civil partners should do so either.