Michael McDowell (Independent) | Oireachtas source

These amendments, as the Acting Chair has pointed out, all relate to the same basic matter, which is what precisely is to be inserted into the Constitution, consistent with the overall scheme of the proposed amendment.

Yesterday, we had a somewhat fraught discussion in which some people said that their own arrangements were under attack by anybody who opposed the making of this amendment. Nothing could be further from the truth. I fully respect the personal lives and arrangements that everybody in this House has made. Nothing I say is intended to cause any offence or hurt to anybody. I would not do so willingly, and I do not think I am doing so at all.

I was interested in what Senator Hoey said about the O'Meara case. The argument was made that the O'Meara case strengthens the need for this constitutional amendment. For my part, I take the exact opposite view. In my view the O'Meara case, which was decided yesterday, demonstrates the absence of a need for the amendment with which we are dealing.

First, we should remember that the majority decision in the O'Meara case upholds the proposition that the family under the Constitution is based on marriage. That is what the decision of Mr. Justice O'Donnell and his colleagues upholds, and it is the majority decision. Mr. Justice O'Donnell says that is the plain meaning of the existing Constitution, so we start from that point.Even though the Constitution states that the family is based on marriage and even though the majority in O'Meara case proceeded on the basis that was the Constitution, and the clear meaning of the Constitution, the Supreme Court nonetheless looked to the situation of the O'Meara family and concluded that the provisions of the social welfare legislation in respect of the widow's and widower's pension arrangements were unconstitutional insofar as they infringed the equality rights of Mr. O'Meara and his children under the Constitution, holding that their social need, looked at objectively, was indistinguishable from the social need of somebody in his position who had married the children's late mother. It seems to me on that account that the O'Meara decision shows two things. It puts the ball in the Government's court to bring in legislation amending the Social Welfare Acts to provide for people in the O'Meara situation.

It also states for the first time that the special position of marriage in the Constitution does not warrant an invidious discrimination against persons who are in a domestic situation indistinguishable except for the fact of marriage from people who are married. The present wording of the Constitution does not in any shape or form prevent this House from passing the legislation that will be necessary, consequent on the Supreme Court's decision. The majority in the Supreme Court has explicitly held that the present provisions in the Constitution do not prevent this House from doing justice to the O'Meara family. It is important to grasp that point. People might have thought the injustice was incapable of being remedied because of the special position of the family based on marriage. The truth is the opposite. Nothing in the Constitution at the moment prevents the Oireachtas from enacting social welfare laws that are just not discriminatory to people who are in domestic situations that are differentiated by the fact there is not a marriage underlying them. The argument that being fair and equitable to the O'Meara family and people in their position somehow depends on changing the Constitution simply does not stand up. On the contrary, the majority decision indicates clearly that notwithstanding the family, for constitutional purposes, continues to be based on marriage, it is not merely the right of the Legislature to do justice to the O'Meara family, it is its constitutional duty to do so.

From that point of view, one has to ask oneself what are the other implications of the O'Meara decision. One of them, for instance, is that, as mentioned by Senator Hoey, there are knock-on consequences - and one does not need a degree in law, jurisprudence or anything else to see this - for the taxation system. If somebody in Mr. O'Meara's position can point to a family based on matrimony and say that such families are given an income tax regime that is far more favourable than his situation, being a single father with dependent children, any resourceful lawyers on his part will go back to 1980 and look at the Murphy decision and ask what the criteria are that state the O'Meara family must have a much heavier burden of taxation than it would if Mr. O'Meara had been able to marry his partner before her unfortunate death. It seems to follow that there will inevitably be challenges to the existing tax regime arising from the O'Meara decision. That is something we are not discussing today, in one sense, but it will happen. It is coming down the litigation tracks that people will look at the O'Meara case. It is bound to lead to other challenges not merely in the welfare code but also in the taxation code. Why should Mr. O'Meara and his children carry a much heavier tax burden than they would have done if he had been in a position to marry, and had married, his partner before her death? How can it be justified that he is in a position radically different from a taxpayer in a similar situation who did marry the mother of his or her children even after they were born? That is the first thing. A challenge is coming to our taxation system.

If we change the definition of the "family" to include other durable relations, parties to those other durable relations will have at least as strong a case as the O'Mearas to challenge the constitutionality of what they will allege are the unfair and discriminatory tax provisions that apply to them. It will, therefore, become a matter of considerable importance, socially and for a whole series of other reasons, what is or is not considered a durable relationship for the purposes of the Constitution if this amendment is made. As night follows day, parties who think they are in a durable relationship will challenge the tax code and changes will have to be made to accommodate them. That raises the issue the amendment in my name seeks to deal with fairly and squarely. Who defines a "durable relationship"? Is it this House and the Dáil? Do we have the right to say a relationship must have lasted at least two years or that it must at least have had a conjugal aspect to it?With regard to cohabitation as recognised in law, the courts have held that the term "intimate", when used in the definition of a cohabiting couple, refers to a sexual relationship between them. Do we decide that or do we leave it to the courts to decide that in any individual case? There is nothing to stop us. The 2010 legislation deals with cohabitation and civil partnerships but I am more concerned now with cohabitation because civil partnerships are effectively historical because of the passage of the marriage equality referendum. If we concern ourselves with the legislation relating to cohabitation, anybody who looks at that legislation will see that the criteria for recognition are determined by the two Houses of the Oireachtas. It is not up to a court to say that they are cohabiting and it is holding that they are cohabiting. The Houses of the Oireachtas have, by the terms of the 2010 Act, told the courts what is and, much more importantly, what is not cohabitation for the purposes of that statute.

The Minister has been frank enough in his informal briefings with the leader of my group to indicate that it is a deliberate choice on the part of the Government, in its phraseology of its proposed amendment, to leave the definition of "durable relationship" to be decided on by the courts. I ask in that context why we did not do that with cohabitation rights. The courts are unelected and, once they decide something, one cannot reverse out of it. If the Supreme Court says it means a certain thing, it means that certain thing because it is in the Constitution. If that is to be the means by which one determines what is or is not a durable relationship, why did we bother, with cohabitation rights, to set out all the criteria about who is and who is not entitled to be regarded in law as a party to cohabitation? In the 2010 Act, we see the people who are not entitled to it. They are people who are parties to marriages and would be excluded by consanguinity rules from having their relationship recognised. All of those things are provided for in law. Much more than that is provided in law. The entitlement of cohabitants, in the event of the termination of the relationship, to seek from each other assistance in the form of financial support and the like, and the division of property, is very strictly limited. The mere fact that one has cohabited, unless one satisfies the criteria laid down in that Act, does not entitle one to invoke the provisions of the 2010 Act.

My amendment proposes two things. One is that an enduring relationship would have to be one that was between two persons. It could be parent-child, but it would at least have to be between two persons. It would also have to be as prescribed by law, so that these Houses could say that six months together is not enough, or that three years together is enough, and, much more importantly, that the presence or absence of children, which is one of the criteria under the 2010 Act for recognising cohabitation, is or is not to be a criterion in determining what a durable relationship is. If two people move in together for a number of years - while I do not claim to be a family law expert, I was reading the case law today in Family Law in Context, which deals with this in great detail - case law clearly lays down the criteria and factors that, by statute, a court is obliged to consider in deciding that people are cohabitants for the purpose of deciding whether they have any remedy against each other in the event of their relationship breaking up. All of that will be swept away by this amendment because, in future, presumably, the average cohabitant will be deemed to be a party to a durable relationship. The right of the Oireachtas to say these are the criteria by which a court must judge the matter is not recognised in the Government's proposed amendment. That is a serious matter.

For instance, let us pose this question to ourselves. If a durable relationship does not necessarily involve having children, and I presume from everything that has been said here that it does not, does the fact that there are children in any particular case lend weight to the entitlement of people to have their relationship be considered durable? Are the courts free to define a durable relationship without regard to whether children are or are not present as a result of the relationship? When I say, "as a result of the relationship," I am sure there are many cases where effectively stepparents move in to a situation where children are not their own natural children but they are nonetheless something that the court might take into account in determining whether this was to be defined as cohabitation for the purpose of the 2010 Act.

The point that I make is this: how does it make any sense to take away from the Houses of the Oireachtas the right to set out the criteria for recognition? We can do it and if we get it wrong, we can change it. If we did so in an impermissible way, the Supreme Court could tell us we had done it in an impermissible way. If we actually say that it is entirely a matter for the courts to decide and not a matter for the Oireachtas to prescribe, we are in fact robbing ourselves of flexibility in this area.

I will give two examples that may be of interest to some people. Cohabitants can obviously end their relationship in various ways. One way can be where one party to the cohabitation unilaterally decides to end it and to move out. There is a difference between that and separation and divorce because the marriage that exists in a married situation subsists and the duties, obligations, and entitlements under it all subsist after one party moves out of the marriage home.If there is a divorce or separation, under the family law legislation that we have at the moment it is open to a court, in the interests of the children or, to use a phrase that is possibly a bit old-fashioned, the abandoned spouse, or person left by the other partner to divide the assets of both parties to the marriage so as to provide for partner or offspring of a marriage. Before any divorce is permissible and before a marriage ends under the Constitution, as it is currently framed, provides that a court must ensure that there has been adequate provision for the children of the marriage. If somebody wants, perhaps for good reason, to remarry a different person they will not get the right to remarry unless they ensure that the partner and children, if there are such, of the first marriage have been adequately provided for.

That does not exist in cohabitation. People can move out of one home and into another. In fact, one can move out of a home and marry, having cohabited. There is no impediment to a person forming a marriage and becoming a constitutionally recognised party to a marriage arising simply from the fact that one has previously cohabited with somebody else. This is serious stuff.

If we say that people can, in effect, move in and out of durable relationships and form new ones without providing for the offspring of their first marriage, which is required by the Constitution, we are in fact saying something very serious and fundamental about family breakdown, its consequences and the behaviour of parties to unhappy marriages who may wish to find a happy marriage for themselves. A cohabitant is under no inhibition from moving out and marrying another marriageable person and forming a constitutionally recognised partnership with that person, as things stand.

All of those things are important from the point of view of protecting people who are party to relationships, whether they are called durable, fleeting, semi-durable, short-term or whatever. If a man and a woman cohabit and there is a child, there is no inhibition on the man marrying another woman as there would be if he was originally married to the first mother of his child where he would have to, as a precondition to marrying again, establish that he had properly looked after the parties to his first marriage. We are getting rid of that.

We are saying that durable relations are to be given the same status as a family based on marriage. The provisions of the Constitution which refer to divorce and the precondition of looking after the people in the first marriage before one embarks on a second constitutionally recognised marriage become awfully redundant if people do not get married in the first place. If I do not marry a woman and have two children with her in a three to five-year relationship, I am free and not bound by the provisions of the Constitution which say that I cannot marry a different woman and start a family which is recognised under the Constitution as a constitutional family.

If I had to divorce in order to form a second constitutionally recognised marriage, I would have to prove to a court that I had made proper provision for the children of the first marriage. Nobody should try to paper this over. This is a fundamental consequence of what we are doing. It is important that we look at the Constitution. We are leaving in it the provision that the State pledges to guard with special care the institution of marriage and to protect it against attack. That does not deal with the situation I am talking about because such a person was not party to a marriage. We are leaving in the Constitution the second section part of that section of the Constitution which states that:

A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that – ithere is no reasonable prospect of a reconciliation between the spouses,

iisuch provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iiiany further conditions prescribed by law are complied with.

That is what we say about marriages. This House has kept control of the circumstances in which a marriage can be terminated. One of them is if and only if a person satisfies the court that he or she has looked after the parties to the first marriage can that person have a marriage dissolved so as to enable him or her to establish a second constitutionally recognised family. We are scrapping that for non-marital durable relationships.

We are saying that the only people to whom this will apply are people who got married in the first place. They are the only people who will have to get divorced. They are the only people who will have to satisfy a court that they have looked after the parties to the first marriage and their offspring in a manner that the court considers satisfactory. A party to a durable relationship can walk out the door and marry a man or woman within six months, as one has to give notice. That is about it. People can marry because they are free to marry.

There is no point in pretending we are not doing this because people are not reading this Constitution. Durable relationships will not be covered by the provisions relating to the dissolution of a marriage. The dissolution of a durable relationship will not be provided for in law. The duties of somebody to tidy up the situation they are leaving and provide for all of the people adequately out of their means will not exist as an obstacle to forming a second constitutionally recognised family and becoming a party to it. We cannot cod ourselves as to what we are doing.

I had an uncle who tried to persuade me years ago that there should be no reference at all in the Constitution to marriage, and that it should be left to churches and people who want to enter into legal deeds or whatever they wanted to do. He wanted to take it all out of the Constitution. We are leaving in the Constitution very serious obstacles to the dissolution of a family relationship based on marriage. We are saying that will not apply to durable relationships. In the period since I was Minister for Justice, I did one family law case and I regretted it instantly because it is the toughest law you can do. It is the most harrowing, the most difficult and the most important to the people involved, but it takes it out of you. I think Senator Martin will agree with me on that.