Michael McDowell (Independent) | Oireachtas source

If you can avoid being involved in family law and make a few shillings as a barrister, you are well off. I admire family lawyers hugely. Family lawyers will tell you, for instance, that farmers - and I have seen it - with 300 acres have been told that they must set aside 150 acres for their spouse and children for the proper provision of the children. The property of the family and shares in businesses are frequently divided between parties separating or divorcing couples. As I read in family law books, it only happens in cohabitation cases in respect of shared property in which they have resided, but neither party effectively gets their hands on half of the other party’s private wealth. However, we are going for that. If this happens, people who are not married will, on O’Meara’s logic and on the fact that their relationship has the same status in law as a family based on marriage, I think be entitled to ask for a share in the other partner’s private wealth. I am not trying to run scare stories here but I have seen a farm being physically divided. That is what we are dealing with in family law as it exists at the moment because you have to go to court to get your marriage dissolved and prove that you have done the needful by your spouse and children before the marriage will be dissolved. However, none of that will exist if we go down this road.

I do not see what was wrong in the 2010 Act, which provided criteria for recognising cohabitation, as determined by these Houses, as to who is and is not to be regarded as a cohabitant, what a court is or is not obliged to take into account and what a court should not take into a count. Why is that not to be provided for by law in the case of a durable relationship when it is already provided in respect of family law separations and divorces where the family is based on marriage?

I find a huge lacuna - a gaping hole - in saying that the Oireachtas will not have a function in determining what a durable relationship is but the courts will ultimately decide that. We are effectively handing over an essentially legislative power to the Judiciary. Is six months enough? Is nine months enough? Does it depend on the judge’s attitude to the two people that he or she sees before them before they are recognised as a family? That is without even considering the question of a break-up of a durable relationship. Who is to be recognised and who is not? These Houses provided in a liberal and an imaginative way for cohabitants to be protected but said that if we are going to do that, we will remain the masters of who is entitled to all of these privileges, rights and duties in respect of each other arising out of cohabitation. However, we are not doing that now.

I will make a second point arising out of yesterday’s discussion. Some people said that the points I made, I presume in an article in The Irish Timesbecause they were speaking before I spoke, were disgusting in that I was relegating what are obviously family relations in a colloquial sense to a two-tier hierarchy where some of them are given recognition and others are not. All I can say about that is if we are going to have protection of the family and the institution of marriage with special care and protection from attack for it, why are we not doing that for durable relations? Sometimes I am reminded of Woody Allen’s phrase that if marriage is an institution, I am not keen on it - who wants to live in an institution? However, if you call it an institution in the technical sense that it is instituted by law, which is what it actually means, why is it that it needs special care but durable relations do not? It can be dissolved only in limited circumstances but durable relations can be ended by the unilateral act of one party. I do not understand this.

Senator Higgins said yesterday that somehow implicit in this was an analogue of the argument that was used in the marriage equality referendum that heterosexual people’s marriages were somehow devalued by the existence of marriage among homosexual people. I do not see that at all here. I am not arguing that marriage is devalued rather I am saying that we are creating a two-tier situation where one can only be dissolved by divorce whereas the other can be dissolved by walking out the door and simply closing it behind you. That is not in any sense offensive, rather, it is the legal reality. You can walk out the door. One is different from the other. One is part of the constitutional fabric saying that it cannot be dissolved except in very limited circumstances and it cannot be dissolved unless you have looked after the parties to it.

There is a broader social issue as well. I wish to put this to the Government. I know that probably all of this is futile but I am determined to put it on the record. I and others advocated for the marriage equality referendum. We were confronted with Frances Fitzgerald, the then Minister, sponsoring it, saying that marriage was a fundamental institution of the State and it was wrong to deny it. I agreed with this in respect of a gay or lesbian couple, especially those who wanted to look after each other, those who wanted to have spousal status in regard to each other’s affairs and those who wanted to adopt children and bring them up without any discrimination. We changed the law and I was an enthusiastic supporter of doing so. I believed that to deny gay and lesbian couples the entitlement to form families was profoundly unjust in the world we were in.

I should say, lest anybody doubts where I am coming from, when I was Minister for Justice, the Gay and Lesbian Equality Network, GLEN, came to my Department.This was in 2003, I would say. I told GLEN I could not give it a referendum, because it would be defeated and because I did not think my partners in government would be interested in such a referendum, but I would go along the lines of civil partnership. The group under former Deputy Anne Colley reported and that turned into the civil partnership aspect of the 2010 Act. If the argument by gay couples that they were being unfairly kept out of marriage means anything, it cannot be that durable relations, which they could always form, were an adequate substitute for them. They would not have accepted it at the time that amendment was made, and rightly not. But looking now to what is to be the future if this amendment is passed, I do have to ask a broader social question. Figures were quoted here and they were interesting, namely, that 40% of children are born out of wedlock at the moment and that roughly 20% of families are single-parent families. If you mine down into those figures, I think an awful lot of children born out of wedlock are later the subject of a marriage between their parents. I think that probably happens in a lot of them because the 40% and the 20% do not seem to correspond as figures. But even if there is a very significant cohabiting community who are not interested in getting married for one reason or another, we do have to ask the wider social question: is the State indifferent to whether cohabiting couples with or without children are married or not? Is it a matter of complete indifference to the State or does the State actually favour marriage? Does the State believe that marriage is in some sense preferable than mere cohabitation? I do not see the answer to that question being proffered by anyone. I totally accept the proposition that Senator McGreehan advanced yesterday that people are free to marry or not to marry and it is none of my business whether they do or not. Personally, it is none of my business - I follow that and I do not go around tut-tutting - but is the State indifferent to that choice and should it be indifferent to that choice? Especially if it is saying that it will guard with special care the institution of marriage, then why are you bothering to guard with special care if you do not really care whether people enter into it in the first place? Why do you say to parties to it that you cannot dissolve it unless you make adequate provision for children but if you remain unmarried, those rules do not apply to you? I wonder. Of course things have changed from holy Catholic Ireland, for which I am not a spokesman and never have been, but we have scrapped the concept of illegitimacy. We have instituted cohabitation. There was reference yesterday to John Charles McQuaid. He would be spinning in his grave if he thought that any of these things would have been done so shortly after his departure from the religious stage. But when we have a Supreme Court which says to Mr. O’Meara “Your equality rights trump the right of the Legislature to provide welfare contingent on there having been a marriage at some stage,” we have moved an awful long way from the society which was described here so vividly by some of the speakers yesterday; de Valera’s Ireland. We have moved an awful long way from that but we still have to ask ourselves this fundamental question, does the State put a value on marriage and, if so, why? Is it saying “We recognise that you are entering into a legal commitment which cannot be dissolved except by a court order in the limited circumstances provided for in the Constitution”? Are we saying that matters? Is there some value or some social good alleged to exist in the semi-permanence of marriage? The social good that was alleged, for instance, to exist in relation to the marriage equality debate and decision of the Irish people.

Those are the questions that I said yesterday that I believe we have to answer. The amendment in my name keeps for this House the control of what is a durable relationship. If we hand it away and lose control of that concept, we effectively hand over to the Judiciary a vital part of the legislative power of the Irish State.