Katherine Zappone (Independent)

I am aware that the Bill was received very favourably and with little comment or debate in the Dáil and select committee. As the Minister of State has noted in his opening statement, it is viewed as progressive and a complement to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 in terms of providing for the taxation implications of that Act. My fellow Senators have described the legislation in similar terms. I respect the right of Members to hold these views and, although they are not views that I share, I understand I am in the minority in this regard.

I do not think an equivalence of rights has been achieved in the 2010 Act. It legislated for legal discrimination and, as such, I do not describe the Act as a stepping stone to equality for lesbian and gay couples. I am also cognisant of the fact that a significant number of couples have already availed of the civil partnership registration process and I acknowledge this is an important event in their lives. I have had the privilege of attending a number of these ceremonies and they are very moving. For some, it is an opportunity to recognise their lifelong love in public, to give visibility to the normality of homosexual identity and speak eloquently about Ireland as moving towards the "republic of love". The latter phrase, which comes from a poem by Michael Murphy for this partner, Terry O'Sullivan, was one of the most recent attempts to put into language the achievements of this legislation. Others, however, have in effect conducted this public ceremony in private because they are still fearful of inviting their mothers, fathers or other family members in case of rejection. At the same time, they undergo the process because they desire the protection that accompanies this statutory institution.

We are living in a land of paradox as a result of the 2010 Act. It is not a land of equality. We should not forget that only married couples and their children can legally be deemed families and civil partners and their children do not yet benefit from the constitutional protection of the family. I recognise that many couples are availing of this institution for the key aim of gaining protections and benefits that are similar to those of married couples. There is no way of getting these protections other than by entering into civil partnership.

I put aside the differences to which Senator O'Brien referred and I spent a lengthy period reviewing the Bill in order to offer the Government constructive suggestions which would ensure the taxation protections and benefits for civil partners are as similar to marriage as possible. The Bill is technical in nature and I ask Members to bear with me because some of the comments I shall now make traverse into that technical domain. I am not an expert in taxation law but I have had the support of someone with experience in this area in reviewing aspects of the Bill. I agree with Senator D'Arcy on the importance of applying a fine toothcomb to the legislation.

My question is whether the Bill does what it sets out to do, namely, provide exactly the same tax treatment for civil partners as for married couples under all tax categories. Furthermore, are children of civil partners afforded the same treatment as the children of married couples? From an initial reading of the Bill, it appears this equivalence is achieved but, on closer scrutiny and with the support of research conducted by the public interest law initiative of FLAC at the request of the marriage equality organisation, some of the amendments contained in the Bill do not achieve full equivalence between civil partners and married couples or for the children being raised within the respective institutional arrangements. Furthermore, some gaps appear to exist in the range of amendments required in the tax code if full equivalence is to be achieved. The lack of same tax treatment between civil partners and married couples may require amendments to be introduced.

In regard to the insertion of the new Part 44A to be inserted into the Taxes Consolidation Act 1997, chapter 1, section 1031J, it is still easier for a married couple to avail of more favourable tax treatment on the break-up of their marriage than is the case for civil partners. Maintenance payments for a spouse in marriage attract tax relief at the time of a deed of separation or judicial separation. In the case of civil partners, tax relief on maintenance payments is not possible until statutory dissolution or annulment. It takes longer to get a statutory dissolution or annulment than to put in place a deed. A deed takes however long the negotiations last, whereas the statutory dissolution requires a two-year waiting period. In order to ensure the same treatment, section 1031J needs to be amended.

In respect of chapter 1, section 1031A, the Bill inserts a new Part into the 1997 Act in order to deal with the assessment of civil partners for income tax purposes. The new section mirrors how spouses are assessed in the Taxes Consolidation Act. The tax treatment for income tax purposes depends on whether spouses or civil partners are living together or separated. The Minister of State referred to this in his remarks. Within this section it appears that the definitions of what constitutes living together for civil partners are different.

For the purposes of tax legislation, a married couple can be considered separated even if they are living together under the same roof. That is in case law. If a married couple's relationship breaks down - which happens more today than it did in the past - but given difficult financial circumstances they cannot maintain two separate dwellings and are forced to live together, they can still be considered separate for income tax purposes. I presume that if people are separated they want to be considered as such for tax purposes and issues consequent to that. With the section as it stands, if civil partners are separated but still living together under the same roof, they would not be considered separated for income tax purposes. There does not appear to be parity with married couples in this respect.

A third example may highlight a gap. Within the body of tax legislation, the definition of "relative" and "family" are often used. The meaning of these words in the tax code is not technical and refers to ordinary meaning. The ordinary meanings of these words are as contained in the Oxford English Dictionary, which the Revenue Commissioners rely on for definitions, and they turn on blood or marriage. To ensure relatives and families of civil partners are recognised within the tax code, it seems we require an amendment to bring them under the ordinary meaning.

The different cases I have outlined, if they are accepted, may require amendments to achieve what the Government is setting out to do. My next example moves to the issue of children and maintenance arrangements. This is a little more technical but I will put it as simply as I can. With regard to maintenance arrangements for children of a civil partnership, or even as such payments relate to civil partners, a more favourable tax treatment for married couples kicks in with regard to maintenance payments after the breakdown of a marriage. This does not come about as quickly for civil partners, who must get an order of the court to trigger that favourable tax treatment; married couples do not require this.

Moving to the issue of children, there is a more favourable tax regime for maintenance payments, although that is not reflected in the Bill as it stands. In this regard it might be helpful to recall that the Civil Partnership Act does not place any statutory obligation on civil partners to maintain the child or children of a civil partner in the case of a marriage breakdown. Is that the reason there cannot be the same favourable tax treatment for the children of civil partners in this Bill? If that is the case it is important to note it.