Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

It gives me huge pleasure to introduce the Marriage Bill 2015 into the Seanad. The Bill gives effect to the constitutional amendment, approved by the people on 22 May 2015, that, "Marriage may be contracted in accordance with law by two persons without distinction as to their sex." Eleanor Roosevelt famously wrote that a person's philosophy is best expressed by the choices he or she makes. The decisive vote by the people of Ireland for marriage equality has confirmed that our society's philosophy is one of inclusiveness. We recognise the truth of Desmond Tutu's statement that our universe is characterised by diversity. We have chosen as a people to ensure that marriage, one of our most cherished institutions, now responds to the diversity of our society.

The process of societal change which has made this Bill possible has involved many people. Lesbian, gay, bisexual and transgender people across this country have worked tirelessly to make marriage equality a reality. Many parents, siblings, friends and neighbours have supported them on their quest for change. The tapestry of change has been woven by many hands. I salute them all. However, I would like to pay particular tribute to two members of the Seanad who have been pivotal in this process. First among them is, of course, Senator David Norris. His courage and persistence in challenging the State led ultimately to decriminalisation back in 1993. It is fitting that he is here today, an esteemed Member of this House, to see the introduction of the Marriage Bill. He has played a truly vital part over the years in ensuring that the State treats its citizens fairly and equally, regardless of sexual orientation.

Another special mention should go to Senator Katherine Zappone who, with her wife Ann Louise, began the process of seeking rights for same-sex couples wishing to have their marriages recognised here. Their action helped to spark a movement and to change the nature of our discussion about marriage. They inspired lesbian, gay, bisexual and transgender people to see access to marriage as an achievable goal. Many other Members of this House have been passionate advocates of equality generally and, in the course of the marriage referendum campaign and before, of equal access to marriage. I do not intend to name each of those Senators, for fear of missing someone out. I will say that Senators have made a significant contribution, inside this Chamber and on the doorsteps, to making this Bill possible today.

Most of all, though, I wish to acknowledge the enormous contribution made by the many who played a critical role in the run-up to the referendum, namely, the NGOs which worked together under the "Yes Equality" umbrella and the thousands of people who canvassed and campaigned for marriage equality.

I have already addressed a particular matter in the other House but I think it bears repeating here. The referendum campaign was hard fought, with passionate viewpoints expressed on both sides. It is a triumph of our democratic process that people across the country participated sincerely and enthusiastically. Ultimately, the decision of the people was clear and decisive. However, it is important to recognise the sincerity of the divergent viewpoints which were articulated in the course of the referendum campaign. Those who voted against the referendum feared that marriage would be fundamentally changed, even feared that society itself would change. They were motivated by the desire to defend an institution that is so dear to us. They have also played an important part in the democratic process. I would say to them now that there is nothing to fear by the outcome of the referendum. Marriage has been strengthened by the debate and by the outcome of the referendum. Its value has been reaffirmed by people who want so wholeheartedly to make that very special and ideally lifelong commitment. The desire of same-sex couples for access to marriage and our response to it has changed our society in the best way possible. The "Yes" vote says something important about our society. It says that as a society, we value marriage and we recognise its importance in both practical and symbolic terms. As of 23 May, the referendum result day, our lesbian, gay, bisexual and transgender citizens can see that they are rightly recognised by their fellow citizens as fully part of our society and entitled to be part of one of its most cherished institutions. This is why, on 23 May, there was such jubilation in the upper yard of Dublin Castle, on the streets and in people's homes. It was because when the people of Ireland were asked to vote on the rights of a minority, they decided that the minority should have the same rights as the majority.The Marriage Bill 2015 is designed to open marriage to same-sex couples. The constitutional amendment alone does not do that. As it stands, the law does not yet allow two persons of the same sex to marry in accordance with law. This Bill will make the necessary changes to the law to enable same-sex couples to marry. It will clarify the position of religious bodies and guarantee their freedom of religion. It will also discontinue the statutory scheme of civil partnership. Finally, it will make a range of other legislative amendments to ensure married same-sex couples are treated in the same way under law as any other married couple.

Some will regret the removal of the civil partnership option. It has already been discussed in some detail in the other House. However, the advice I received on the matter is clear. Civil partnership was not made available to opposite-sex couples at the outset precisely because they had the option of marrying. In similar fashion, it can no longer be available for same-sex couples, as they will now have the option of marrying. The Government's advice is that to continue to allow access to civil partnership would raise equality issues if it were available only to same-sex couples. At the same time, it might be constitutionally vulnerable if available to all couples in parallel with marriage. This is because of the constitutional pledge to "guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." That places a particular responsibility on the State not to allow an institution to operate which might carry any risk of being regarded as a competitor to marriage. The Bill proposes, therefore, an orderly wind-down of access to civil partnership for new entrants, while preserving the rights, obligations and entitlements of couples already in a civil partnership or a relationship which is treated as a civil partnership under Irish law.

The Bill sets out several measures to make access to marriage easier for current civil partners. This recognises the fact many people who registered their civil partnerships in Ireland would have preferred to marry had they been able to do so. For this reason, the Government has sought to make the administrative processes for civil partners wishing to marry as easy as possible. To achieve this, we are amending the Civil Registration Act 2004 to provide that it is not an impediment to a marriage if the couple concerned are already in a civil partnership with each other. The Tánaiste and Minister for Social Protection will also provide for a reduced fee, namely, €50 instead of the usual €200, where a couple who registered a civil partnership in Ireland now wish to marry here. This reflects the fact the civil registration service will have a file on the couple concerned establishing their identities and will not have to duplicate this work.

In addition, on Report Stage in the Dáil, I introduced an amendment which will reduce the notice period to marry where a couple is already in an Irish civil partnership. This acknowledges that such couples will previously have given notice of their intention to register in a civil partnership. For those who have already given notification of their intention to enter a civil partnership during the transition period, they will be offered the option of marrying instead if they wish. There will be no fees for any necessary administrative changes.

This is a short Bill, given the profound effects it will have. It consists of just 24 sections set out in six Parts. Its main effects will see the removal of the statutory impediment in the Civil Registration Act 2004 preventing parties of the same sex from marrying. Couples already in civil partnerships will be able to marry one another without having to dissolve their civil partnership. Couples who have given notice of their intention to enter a civil partnership will be able to convert this into notice of their intention to marry. Civil partnership will be closed to new couples after a six-month transition period. Provision is made for religious bodies and religious solemnisers. Foreign marriages between same-sex couples will be recognised under Irish law as marriages.

Part 1, sections 1 to 3, inclusive, contains standard provisions. The Bill, once passed, will be known as the Marriage Act 2015. It will be commenced by a ministerial order which I will make after consulting with my colleague, the Tánaiste and Minister for Social Protection. Our intention is that the Act will be commenced as soon as is reasonably possible. The General Register Office is already preparing for its implementation. I estimate it should be possible to commence the Act within approximately a fortnight of its enactment. This brief period is necessary to enable the registrar to carry out certain systems testing, as well as to contact couples who have already set dates for their civil partnership ceremonies to determine whether they wish to proceed with a civil partnership or, instead, to marry.

Part 2 is an important substantive Part which changes the current impediments to marriage. Section 4(a) removes the impediment that “both parties are of the same sex" from section 2(2) of the Civil Registration Act 2004. This is the Bill's single most important provision because it is this change that will, in the near future, allow many loving, committed same-sex couples to marry. Section 4(b) further amends the impediments to marriage. Since commencement of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the impediments to marriage have included that "one of the parties to the marriage is, or both are, already party to a subsisting civil partnership". If this provision was not amended, the 2,000 or so couples who are already in civil partnerships would not be able to marry each other, unless they first dissolved their civil partnerships. The Bill modifies that impediment by making a special exception for civil partners who wish to marry one another. The precise exception is then set out in a new section 2B of the Civil Registration Act 2004, inserted by section 6. That new section specifies, "There is not an impediment to a marriage by virtue of both of the parties to the intended marriage being parties to a subsisting civil partnership with each other." It is simple, limited and ensures a civil-partnered couple wishing now to marry each other are not put through an onerous and futile requirement to have to dissolve their civil partnership. Of course, being in a civil partnership will continue to be an impediment to marrying anyone except one's own civil partner.

Section 4(c) sets out the impediments that will apply to marriage. At present, the impediments to marriage are set out in marriage law older than the State. The Marriage Act 1835 specifies marriages within the prohibited degrees of consanguinity or affinity are absolutely null and void. Consanguinity is a blood relationship, meaning the relationship of people who descend from the same ancestor. Affinity refers to a relationship based on marriage. For example, a person may not marry his or her stepmother, even when she is divorced or widowed. The law at present has specific limitations in place as regards the degree of consanguinity or affinity which may exist between parties to a proposed marriage. Section 4(c), together with a new section 2A of the Civil Registration Act 2004, inserted by section 5, sets out that prohibitions on the grounds of consanguinity or affinity shall apply to couples of the same sex as they do to couples of the opposite sex. This is subject, of course, to any necessary modifications to those prohibited degrees relating to the sex of the parties.

These provisions are in line with our overall policy that this implementation Bill should interfere as little as possible with existing provisions of marriage law, as well as making only the changes necessary to deliver on the decision of the people in the referendum. Essentially, the same conditions, with appropriate modifications for the sex of the couples, will apply for all couples wishing to marry.

Part 3 consists of a single section setting out the position for religious bodies and religious solemnisers. A religious solemniser is a person such as a priest who is registered with the General Register Office as a solemniser of the church or religious denomination of which he or she is a member. The Government has been clear that equal marriage as a right refers to the civil aspect of marriage, not to any religious or sacramental aspect of it. Historically, many religious bodies have carried out the civil aspects of marriage simultaneously with the religious aspects and this will continue to be the case. It has always been the case that religious bodies have substantial discretion in choosing which marriages to solemnise in accordance with the tenets of their beliefs. This will remain the case.

Nonetheless, it was considered important to make it absolutely explicit in the Marriage Bill that religious bodies will not be compelled to solemnise particular marriages as a consequence of the amendment or of statutory provisions. This special provision is limited to the specifically religious activities of religious bodies and solemnisers. It does not affect or restrict the operation of equality legislation more generally. Accordingly, section 7 specifies that neither this Bill nor any other enactment shall require a religious body to recognise a particular form of ceremony. "Form of ceremony" is defined as including that form in so far as it relates to the sex of the parties to the ceremony. The effect of this provision is to ensure no religious body will be required to authorise new marriage ceremonies for same-sex couples. The section goes on to specify that no religious solemniser shall be obliged to solemnise a marriage in accordance with a form of ceremony not recognised by the religious body of which he or she is a member.It is very detailed in terms of these definitions; therefore, it is a double lock guarantee. Neither a religious body nor an individual cleric will be compelled to solemnise marriages which do not comply with the marriage criteria of the relevant religious body. In short, section 7 demonstrates that the guarantee contained in Article 44 of the Constitution that each religious denomination shall have the right to manage its own affairs is not undermined by this most recent constitutional change. I repeat that this legislation will not compel religious bodies in any way to solemnise marriages. They will have the choice to decide whether to solemnise same-sex marriages. I am aware that some religious denominations may decide or may already have decided to enable same-sex couples to marry in their ceremonies. There is nothing in the Bill or the Civil Registration Act which will restrict them in carrying out the civil as well as the religious aspects of these marriages. It will be up to them to decide.

Part 4 of the Bill sets out the arrangements being made for civil partnership. As I have mentioned, the policy based on the new constitutional context is that civil partnership registration will cease after a reasonably short transitional period. Section 8 repeals a large proportion of Part 7A of the Civil Registration Act 2004 which had set out the basis for the registration of civil partnerships. Some provisions are retained to ensure proper maintenance of the civil partnership register for the protection of couples who are currently civil partners.

I must stress that the status of current civil partners will be completely unchanged. There is no question of removing any of the rights and obligations of civil partnered couples or changing their status in respect of each other. They will be free to marry each other if they so choose, but they are under no obligation to do so. If they choose, they can remain as civil partners for the rest of their lives. To achieve this, the repeals in the Bill are carefully targeted in order that they will remove access to civil partnership registration but leave the status of existing civil partners unaffected. They will also preserve the registrar's powers and responsibilities relating to corrections to and maintenance of the civil partnership register.

Section 9 is a new section to which I referred that was inserted on Report Stage in the Dáil. I referred to it in my opening remarks. It is the provision which sets out that civil partners who registered their civil partnership in Ireland will not have to give three-month notice to the registrar of their intention to marry. This is because, as I have said, they will already have complied with this requirement when registering their civil partnership.

Section 10 inserts a new Part 7C in the Civil Registration Act 2004 to make certain transitional provisions. The inserted section 59K is a technical provision which allows the registrar on the marriage of a couple who are civil partners to record in the civil partnership register that the civil partnership was dissolved on their marriage to each other. One section leads to the other. It is really a housekeeping provision whereby the couple have registered their civil partnership in Ireland and subsequently marry here. These facts will be fully recorded in the registers.

The new section 59L of the Civil Registration Act 2004 contains important transitional provisions relating to the wind-down of civil partnership registration. For couples who have already notified the registrar of their intention to register in a civil partnership, it provides that they may request the notification to be converted into a notification of marriage. The notification period does not reset the clock. A couple who have notified the registrar of their intention to register in a civil partnership on 1 December will be able to convert that notification into a notification of their intention to marry on the same date. I had indicated that this change was coming. The registrar will contact couples directly in the coming weeks to advise them of the differences between the impediments to civil partnership and those relating to marriage. This is to ensure that in the unlikely event of a couple being prohibited from marrying by the impediments relating specifically to marriage, they will still be able to proceed to civil partnership instead.

The section also provides that where a couple have completed a civil partnership registration form before the commencement date, it will remain valid. The couple will be able to proceed to register their civil partnership within the six-month period for which the form remains valid.

Another exception is made for circumstances where an objection to a civil partnership registration is made. This issue needs to be dealt with in the legislation. If a couple are unable to register their civil partnership owing to an objection which, on investigation, is found to be without merit, they will still be able to proceed to register their civil partnership, even if the finding that the objection is unfounded comes after the Bill has commenced.

Despite the repeals set out in section 8, the repealed provisions will continue to apply in their entirety to the exceptional cases I have outlined. Some of the circumstances for which the exceptions are set out are quite unusual and may not arise, but, clearly, we must deal with the issue in the legislation. If they were to arise, the consequences for a couple who found themselves in these situations could be very serious. They would no longer be able to assume legal rights and responsibilities to each other or to receive legal protection for their relationships. The exceptions we are making are careful and very limited. They are designed to ensure couples who already have commenced the formal legal processes involved in registering their civil partnership can do so.

Section 11 inserts a new section in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Although the general rule is that a civil partnered couple may not dissolve their relationship, unless they have been separated for two out of the previous three years, this new section specifies that where a civil partnered couple marry each other, their civil partnership is effectively dissolved from the date of the marriage. This is to ensure the status of the couple in respect of each other is completely clear and that they are not considered to be married and civil partners at the same time. It is essential to deal with this issue in the legislation also.

Part 5 of the Bill deals with the recognition of certain foreign relationships. Section 12, essentially, provides that marriages lawfully contracted abroad by same-sex couples will be recognised as marriages here. Under current law, a marriage is not recognised in Ireland if, under the law of their habitual residence, the parties did not have the capacity to marry at the time they married. If we did not include specific provisions on recognising foreign relationships, this could have serious consequences for Irish couples who married in other jurisdictions before the commencement of the Bill. Subsection (1), therefore, specifies that the sex of the parties to a marriage does not preclude its recognition in Ireland. Of course, if there were another impediment such as one of them being already married or under age, the marriage would not be recognised. Senators will be aware that lots of questions have been asked about all of these technicalities; therefore, it is important to go into detail on them while I am dealing with Second Stage of the Bill.

Subsection (2) specifies that the recognition of a marriage between a same-sex couple will take effect from the date of the marriage or the date on which the section comes into force, whichever is the later. This is required because of the general principle that legislation is not retrospective.

Subsection (3) provides that a marriage recognised under a section 5 order is not precluded from being recognised as a marriage. Section 5 orders are the orders under the Civil Partnership Act that recognised certain registered foreign relationships as being entitled and obliged to be treated as civil partnerships under Irish law. These orders, essentially, recognised marriages contracted abroad as civil partnerships here. These provisions are now being removed. These marriages contracted abroad will, therefore, be fully recognised as marriages without any need for further action on the part of the couple.

Subsection (4) provides for an exception to the recognition rule in a case where a couple has married in another jurisdiction and has since dissolved that relationship, whether under the provisions of the Civil Partnership Act or otherwise. Their marriage will not be recognised, despite the general provisions of this section. This is because it would be very unfair to subject a couple in these circumstances to having to divorce for, as they would see it, a second time.

Subsection (5) is another transitional provision relating to relationship breakdown. The constitutional provisions on divorce require that the couple concerned must be separated for four out of the previous five years in order to divorce. This provision takes account of the fact that some couples may have married in another jurisdiction but that the relationship may have broken down and they may currently be separated for some time. Recognition of their marriage should not reset the clock on that separation; therefore, a period of separation prior to commencement of the Bill will be taken into account for the purposes of the Family Law (Divorce) Act. There is other legislation where periods of separation are similarly relevant, including access to certain State benefits. Any pre-commencement separation period will be recognised for these purposes, too. I realise these are all very technical provisions and may arise in varying circumstances, but I wish to ensure the House is aware that they are being dealt with in the legislation.

Subsections (6) to (10), inclusive, repeal each reference in every section 5 order to marriages made in the specified jurisdictions. This ensures marriages will be recognised exclusively as marriages. There will be no risk of them being treated as marriages in some situations and as civil partnerships in others.Section 13 sets out a restriction on the recognition of other types of foreign registered relationships recognised by section 5 orders. Some of the policy considerations have already been laid out; that civil partnership registration is to close to new couples and that the last day on which a civil partnership may be registered in Ireland will be six months after the Bill commences. For consistency with this policy, section 5 orders will not recognise new civil partnerships recognised in other jurisdictions more than six months after the Bill commences. Couples whose relationships are currently recognised will be completely unaffected by this change. Couples whose relationships are registered after the cut-off date will not be recognised as civil partners in Ireland. However, the option to marry here in Ireland will be open to them.

Part 6 of the Bill amends a range of legislation. Some of the amendments are simply to ensure that a married person has the same rights and obligations, whether the person is married to someone of the same sex or the opposite sex. I outline only the very substantive amendments here. Section 16 for example amends the Guardianship of Infants Act, which is an important provision, to ensure that where a child is jointly adopted by same-sex spouses, both will be the guardians of the child jointly. If either spouse dies the other will be the child’s guardian alone, as with any testamentary guardian or court appointed guardian.

We also amend section 6(b) of the Guardianship of Infants Act 1964, with an insert from the Children and Family Relationships Act 2015, where the spouse - whether husband or wife - of a donor conceived child’s birth mother is also a parent of the child, within the meaning of the 2015 Act, then the spouse is also automatically a guardian of the child. We can see how the recent changes in legislation now come into this legislation.

Section 17 amends the Succession Act 1965, the detail of which I will not go into here, but there is consistency in this as in the other sections. Section 21 amends the statutory provisions setting out the declarations to be made by the parties to a marriage within the ceremony. Each of the parties can, as appropriate, accept the other as a husband, as a wife or as a spouse. This ensures that there is a no question of a same-sex couple only being able to accept each other as spouses. This will not require any change to any form of currently approved ceremony. Opposite-sex couples remain free to accept each other as husband and wife, however they may also be able to accept each other as spouses if they prefer. This will be an option in civil ceremonies. Religious and secular bodies may decide whether or not to allow this in their ceremonies but will not be obliged to allow it.

Section 24 makes a very symbolically important amendment to the Gender Recognition Act 2015 in that it removes the single status requirement for an applicant for a gender recognition certificate. On commencement of that Act, those provisions were not commenced because the marriage amendment had already taken effect. This was a source of great relief for people who feared they would be in the invidious position of choosing between their relationships and their preferred gender. I am very happy to have this early opportunity to remove these provisions entirely.

On 22 May 2015 the people of Ireland showed the scale of their ambition for our society. There were many quiet revolutionaries who determined that they wanted Ireland to be a land of welcome for all its children. The effect was astounding. As the late, lamented Seamus Heaney put it so well, “The dazzle of the impossible suddenly, Blazed across the threshold." Ireland became the first sovereign country to choose marriage equality by popular vote. The referendum confirmed that Irish people want a society that embraces diversity while valuing the family and marriage. The Marriage Bill 2015 which I introduce on Second Stage here today will implement the will of the people. It will enable couples to marry without distinction as to their sex. Its enactment is a matter of urgency. We owe it to those who have waited so patiently to make their dreams a reality. I commend this Bill to the House.