Seanad debates
Wednesday, 5 May 2004
Family Law: Motion.
5:00 pm
Mary Henry (Independent)
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I move:
That Seanad Éireann calls on the Government to furnish the House with a report of progress to date and future plans aimed at securing the full compatibility of Irish family law with Article 8 of the European Convention on Human Rights, with particular reference to the Convention rights of non-marital and one-parent families.
I apologise for being unable to agree to the proposal that the previous debate be allowed to continue for a further 15 minutes, but the seconder of this motion will have to leave almost immediately. I am surprised that the Government has tabled an amendment, which is almost the same as the motion itself. I sought to word the motion in a non-contentious manner, as I usually do. My motion does not seek to undermine Article 41.3.1° of the Constitution, in which the State "pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack". Anyone who reads the consultation paper on the rights and duties of co-habitees, published last week by the Law Reform Commission, will see that it states exactly the same. The consultation paper does not apply to couples if one of them is married.
The recent enactment of the European Convention on Human Rights Act 2003 has cast a spotlight on many aspects of Irish law, most particularly on our laws concerning family life. The Act somewhat belatedly incorporates the provisions of the European convention into Irish domestic law. The Act broadly requires Irish domestic law to comply with the provisions of the convention. If a provision of Irish law infringes the convention, it is open to a court to make a declaration of incompatibility with the convention.
Article 8 of the convention requires the contracting states to respect the private and family life of all persons, among other issues. In interpreting the scope of the rights protected by Article 8, the European Court of Human Rights has taken a broad and generally inclusive view of the concept of family life. The court has consistently ruled that Article 8 concerns not only the traditional family, based on marriage, but extends its protective scope to families that do not fit this classical mould.
I wish to declare an interest by stating that I have been the president of Cherish, which is now known as One Family, for many years. The organisation provides support to single women with children. Many one-parent families have emerged as a consequence of divorce and separation, etc. I have a special interest in this area.
The case law of the European Court of Human Rights has established, for example, that for the purposes of the convention, the term "family" includes a non-marital cohabiting couple, particularly if the couple has children, as well as a one-parent family, regardless of whether it is based on marriage. The court has also affirmed that a non-custodial parent and his or her child may enjoy a legally protected family life for the purposes of the convention.
I wish to compare this stance with the position in Irish law. In stark contrast to the position of the European Convention on Human Rights, for most purposes, Irish law recognises only the family based on marriage. Family units not founded on matrimony enjoy next to no rights with fewer obligations towards their members. A couple cohabiting outside of marriage are deemed for most legal purposes to be strangers before the law, being no more obliged to each other than flat mates. While the position of the non-marital child has been greatly ameliorated by the Status of Children Act 1987, the position of each parent vis-À-vis the other parent of that child is unenviable. No matter how profound or lengthy their relationship or how stable their family, the law still regards both the non-marital mother and father as legal strangers.
Cohabiting couples are subject to none of the extensive rights and obligations of married couples. Take for instance the example of a woman living with a man who is not her husband. The woman becomes pregnant and decides to take time off to rear her family. Working as homemaker, she cares for her child and partner for several years. Several years later she has another child with the same man and decides to stay at home again to care for her children. If her partner were to leave her, the woman, despite her considerable effort and sacrifice, would not be entitled to a single cent of maintenance from her partner while her children would. Even if he has promised solemnly to maintain her through thick and thin, such promises are legally unenforceable as maintenance agreements between cohabiting couples are not legally recognised in this State.
Without making financial contributions towards its purchase, she will have no claim over the property of her partner should their relationship founder. In particular, the provisions of the Family Home Protection Act 1976 do not apply when the parties are not married. The home, therefore, in which she and her children reside could be sold from under her without her knowledge, let alone her consent. Many people who are cohabiting do not realise that the notion of common law husband or wife is an urban myth.
If her partner were to die without making a valid will, moreover, she would not be entitled to any portion of his estate, regardless of the length or the profundity of her relationship with the deceased. The Succession Act 1965 entitles the spouse of a deceased person to the majority of his or her estate, if a valid will was not made. Even if the wife was disinherited by a written will, she would still by law be entitled to override it, taking one third of the estate if the couple have children and a half if they do not. By contrast, where a non-marital cohabiting partner dies without making a will, his surviving partner is left high and dry as she is not entitled to any portion of the deceased's estate. There is moreover, no provision in law to remedy the situation where a deceased person excludes a non-marital partner from his will.
Ironically, these legal deficiencies are most glaring when legal protection is arguably most necessary. If a woman's non-marital partner were to be hospitalised in circumstances where he was unable to make decisions for himself, she would not be permitted to make such decisions on his behalf without an iron cast power of attorney. She may, therefore, find herself excluded from crucial decisions pertaining to her loved one's health, such as where a partner is unconscious and on a life-support machine. It is also worth noting that a 50 year old woman in an intimate relationship for some years may find that next-of-kin for legal purposes will be her parents or a sibling.
The tax system favours married couples over non-marital couples, though less so since the introduction of individualisation in the tax assessment of married couples. In particular, a non-marital partner will pay significantly more inheritance tax on donations made by a deceased partner than will a spouse receiving property on the death of his or her husband or wife. Married persons are exempt from gift and inheritance tax in respect of transfers between spouses. By contrast, non-marital partners enjoy no such exemption, exposing them to high levels of capital acquisitions tax when a partner dies. Similar spousal exemptions in respect of capital gains tax and stamp duty are not available to non-marital couples.
Section 151 of the Finance Act 2000 remedied this disparity by creating a tax exemption where a property that is the principal private residence of the cohabitees is bequeathed on death to the surviving partner. However, certain limitations exist such as the surviving partner must have lived with the deceased for three years prior to the latter's death and not have another house in her possession. If the surviving partner moves house within six years of the deceased's death, she can expect to pay full capital acquisitions tax based on the market value of the house.
Some might suggest that she has no one but herself to blame for this predicament. If she wants to enjoy the rights that flow from marriage, then she should get married. Many cohabiting couples intend just that. When working in the Rotunda, I often asked women having children in cohabiting relationships if they would not get married. Most intended to but were either saving for the wedding or some other occasion that comes in the way. Marriage may also not be an option as one of the partners may already be married but can only become eligible for divorce at least four years after separation. Other couples may, despite their best efforts, split before they reach the altar. Same sex couples, of course, cannot marry and are left in a particularly invidious position which Senator Norris will address.
Marriage remains popular, although people now tend to marry later than in former times. Some centuries ago, it was not popular because it only made a difference to those with property. However, there is no denying the underlying growth not only in the number of couples who are delaying marriage, but also in the proportion of families living together with no expectation of marriage at all. For various complex reasons the phenomenon of the non-marital family has become decidedly more prevalent in society.
Ireland in the 21st century has a two-tier system for the recognition of family rights and obligations. This legal situation is underpinned in Article 41 of the Constitution that recognises the family based on marriage as the natural and fundamental unit of society. The Constitution consigns the growing number of alternative family forms, such as non-marital partners and lone, unmarried parents and their children, to a legal no-man's land. This narrow perspective has, in turn, informed legislative developments where the rights and obligations conferred on married persons are unavailable to families not based on marriage. However, of the 900,000 family units enumerated by the 2002 census, 12% were one-parent families, 85% of which were headed by a woman. There were approximately 30,000 cohabiting couples with children and approximately 47,000 cohabiting couples without children. These figures show the reality of life for many people in society.
The legal distinction between non-marital and marital children was, for most purposes, abolished by the Status of Children Act 1987. There is still discrimination against the child of marriage regarding adoption. Constitutionally, a non-marital child can be adopted with the consent of his or her mother and any other guardian. However, the child of married parents cannot be approved for adoption in this manner. Due to the restraints created in Article 42 of the Constitution a marital child can only be adopted when there has been a complete and comprehensive abandonment of the child that is likely to last until the child reaches 18 years of age. Legally, it is a difficult predicament to establish that this has happened. Ironically, it illustrates how the constitutional preference for marriage can work to the disadvantage of some members of the marital family unit. A child in long-term foster care may find that she cannot hope to attain the long-term stability that adoption may provide simply because her parents are married.
Feargal Quinn (Independent)
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I thank the Cathaoirleach for giving me the opportunity to second Senator Henry's motion. I admit that when Senator Henry took me through her views on this a couple of weeks ago, I was unaware of the intricacies and problems involved. She has articulated these very well in a number of areas. I commend her for introducing the motion and I have much pleasure in seconding it.
I hope this debate, together with the publication last week of the report of the Law Reform Commission, will spur the Government into action. I seek an indication that it will approach the implementation of the European Convention on Human Rights Act in a proactive way. I was disappointed that the Government put down an amendment which does not encourage a proactive approach. Senator Henry put down a non-aggressive motion hoping there would not be an amendment. The Government's amendment states that Seanad Éireann "calls on the relevant members of the Government to keep the law on these matters under review and bring forward legislative proposals on them as appropriate." If there is such a thing as putting something on the long finger, this is it. The wording of this amendment could have been more proactive and could have given Senator Henry's motion some more attention.
I hope the State will not wait to be taken to court before it brings about changes in our legal system. If that was all we did as a result of the European Convention on Human Rights Act, it would be a passive, grudging and unworthy approach. If, as I hope, we approach the Act positively, we will seek to search out those of our laws and procedures that conflict with the convention and put them right before we are compelled to do so. That is the essence of tonight's debate. Nowhere is this more necessary than in the field of family law, which has not caught up with either the changes in European practice or the changes that have been happening before our eyes in this society.
As Senator Henry said, things have changed. The world in general, and Ireland in particular, have changed vastly since the Constitution was first enacted in 1937. In those days it made perfect sense to define the concept of the family as a group based on marriage because at that time that was overwhelmingly the norm. There was practically nothing else. Nowadays, as we all know, that is no longer the case. There are many single-parent families. Senator Henry mentioned some figures in this area. We have an even larger number of people living together outside the framework of marriage, with or without children. It is vitally important that our law should change in step with these changes in our society.
What is the purpose of family law? It is not to protect or promote the institution of marriage, however much some of us might want to.
Mary O'Rourke (Fianna Fail)
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That is what is in the Constitution.
Feargal Quinn (Independent)
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I know what the Constitution says, but that is not the purpose of the law. The Constitution aims to protect marriage, while the purpose of the law is to cater for the rights, obligations and special needs that arise when people take on the commitment of a long-term relationship.
Feargal Quinn (Independent)
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Every relationship involves giving and taking on the part of both parties. Usually it is love that provides the driving force for this, whether the parties are married or not. As we know, however, love is not enough to make the world go around. When people share their lives, especially when they have children, a cluster of interlocking rights, obligations and special needs arise. It is to provide for these that family law exists. Just as family law is and should be blind to the religion or race of the people involved, it should also be blind to their marital status. I say that as a fan of marriage. It is important that we continue to recognise the institution of marriage in our Constitution. I would have great difficulty, however, with any intention to ignore the problems that are being created due to the changes in society.
Marriage is a great thing, but I do not see it as a reason for depriving people of rights they should have or releasing them from their obligations. Nor should it be a reason for failing to cater to the special needs that arise by virtue of people's commitment to their relationships. Despite what the Primate of All Ireland, Archbishop Brady, said at the weekend, I do not think marriage as an institution is in any great danger from the changes we need to make. We must be careful and take this into account, of course. The vast majority of our population still gets married and will continue to do so, but it is far better that they should do so out of their own free will rather than because they have been bribed with a set of privileges that only married people can access. In business terms, one bribes people to do something or rewards them for doing it. I would much prefer we did not use bribery. We need to take action in the areas about which Senator Henry has spoken.
More importantly, our feelings about marriage should not be used as an excuse to deny unmarried people in relationships what should by right be theirs. To discriminate generally against people because they are not married is an insult to the institution of marriage and does nothing to promote it. In this country we seem to be particularly slow at getting our act together in such matters. Perhaps this is because of our long Catholic tradition or because most of us are still practising Catholics. We have surely learned, albeit slowly and painfully, to move away from the idea that our laws exist as a kind of policing element for any particular religion. Even if the people were 100% Catholic it would still be desirable for our laws to be totally blind as far as religion is concerned.
Some time back I visited a Muslim country and witnessed the attitude of the law there, which discriminated thoroughly against everyone no matter what religion they were. Our Constitution was written in 1937 in a fair and understandable way. We must recognise that there have been changes and examine this issue together. The amendment says we should review the matter, but no action is suggested. It is important in our increasingly diverse and pluralistic society that we are proactive. This is what should concern us as legislators, whose duty it is to serve the people rather than any particular organisation. I realise, however, that Rome cannot be built in a day, so I support the modest and gradual approach reflected in last week's report from the Law Reform Commission. Now we need to show that we are willing to bring our laws into line with present-day realities and to take the first steps towards doing that. I commend the motion to the House.
Jim Walsh (Fianna Fail)
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I move Amendment No. 1:
To delete all words after "That" and substitute the following:
"Seanad Éireann
(1) notes that
(a) it is an objective of the Government that Ireland fulfils its obligations under international law, including its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms,
(b) Irish law takes account, in a number of ways, of non-marital relationships and the situation of unmarried parents,
(c) under Article 41.3.1° of the Constitution, the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack, and
(d) the Law Reform Commission, as part of its Second Programme of Law Reform which was approved by the Government, has recently published a Consultation Paper on Rights and Duties of Cohabitees and has invited persons to make submissions on this by 30 September 2004, and
(2) calls on the relevant members of the Government to keep the law on these matters under review and bring forward legislative proposals on them as appropriate.".
Michael McDowell (Dublin South East, Progressive Democrats)
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I welcome the motion put before the House by Senators Henry, Quinn, Norris, O'Toole and Ross. I hope the Leader will not accuse me of treachery, but it does not matter to me whether the motion as proposed or the motion as amended is passed because we are all in agreement on this issue.
Mary O'Rourke (Fianna Fail)
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I have already discussed that with the proposer, with the Minister and with Senator Walsh.
Michael McDowell (Dublin South East, Progressive Democrats)
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The Independent Senators' motion seeks a report of progress to date and future plans aimed at securing the full compatibility of Irish family law with Article 8 of the European Convention on Human Rights, with particular reference to the convention rights of non-marital and one-parent families. I am grateful to them for raising this issue and I propose to give the Government's response to it, as encapsulated in the amendment which has been moved by Senator Jim Walsh on behalf of the Government side. As I said, I am not here to get into combative mode or ask the House to divide unnecessarily.
Michael McDowell (Dublin South East, Progressive Democrats)
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Article 8 of the European Convention on Human Rights deals with the right to respect for private and family life and provides that everyone has the right to respect for his private and family life, his home and his correspondence and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Senators' motion puts forward the idea, by implication, that Ireland is in breach of the European Convention on Human Rights and that a plan is needed to rectify this situation. I do not necessarily agree with that analysis which implies that some serious and long-standing problem exists. However, I am not aware of any outstanding judgments against Ireland under Article 8 of the convention and nor am I aware of any imminent case that might put us on the wrong foot. In saying this, I do not wish to be critical of the Senators who tabled the motion. I welcome their initiative in doing so because it affords us a valuable opportunity to discuss the provisions of the European Convention on Human Rights relating to the family and the increasingly important subject of the rights of non-marital and one parent families. However, as regards the motion to be passed by the House at the conclusion of this debate, it was my intention to make the point that the Government amendment was preferable.
By means of the amendment, the House is asked to note that it is the Government's objective that Ireland should fulfil its obligations under international law, including its obligations under the European Convention on Human Rights. This is most important and it is just as true of past Administrations as it is of this Government. Ireland has always taken its international obligations seriously. It is never our practice to accede to international treaties without ascertaining whether and to what extent domestic legislation and administrative practice must be changed to comply with the treaty in question. Other countries are somewhat inclined to sign documents on an aspirational basis. We are very careful in signing international treaties and sign them only when we have our own house in order and believe that our laws comply with the demands of a treaty.
In the past, Ireland has been found to be in breach of Article 8 of the convention in three cases, namely the Johnson, Norris and Keegan cases. In the Johnson case, the unequal treatment between children born outside marriage and marital children was found to violate Article 8. That was dealt with in the Status of Children Act, to which Senator Henry referred. In the Norris case, the Court of Human Rights held that the criminalisation of certain sexual activity under the Offences Against the Person Act 1861 was in breach of the convention. This violation was remedied by the Criminal Law (Sexual Offences) Act 1993. In the Keegan case, the court held that the rights of an unmarried father regarding the adoption of his child had not been respected. This was put right by the Adoption Act 1998. Since the coming into force of this Act, all fathers are consulted about the adoption of their non-marital children.
Ireland's adherence to the European Convention on Human Rights is further enhanced by the coming into force last December of the European Convention on Human Rights Act 2003. As Senators know, this measure was introduced on foot of a commitment by the Government in the 1998 Good Friday Agreement. Prior to the coming into force of this Act, the convention was binding on Ireland at international level but was not part of our domestic law. The Act alters that position fundamentally as it facilitates the bringing, in Irish courts, of cases involving alleged breaches of rights under the convention. In other words, it will make rights under the convention enforceable in Irish courts. This means that cases of this type can be processed much more expeditiously, and with associated savings in legal costs and expenses, than under the arrangements previously existing, such as when Senator Norris was obliged to go to Strasbourg to have his rights vindicated. In addition, Irish judges can now, as a matter of law, take full cognisance of the jurisprudence of the European Court of Human Rights in the domestic situation.
Irish law takes account in a number of ways of non-marital relationships and the situation of unmarried parents. I will outline the laws I am referring to, first, those within my ministerial responsibility. The Guardianship of Infants Act 1964, as amended by the Status of Children Act 1987 and the Children Act 1997, provides for the appointment of an unmarried father as the guardian of his child by a court order under section 6(a) of the Act or by statutory declaration of the father and mother. The appointment of the father as guardian means that he can apply to the court under section 11 of the Guardianship of Infants Act for its direction on any question affecting the welfare of the child. Also, regardless of whether he has custody of the child or shares custody, the guardian-father has a say, jointly with the mother, in decisions affecting the upbringing of the child. Even where the father is not a guardian, he still has the right to make an application to the court regarding the custody of the child and the right of access to the child.
The Domestic Violence Act 1996 also recognises non-marital relationships. Persons who may apply for a safety order under the Act include a person who is not the spouse of the respondent but has lived with the respondent as husband or wife for a period of at least six months in aggregate during the period of twelve months immediately prior to the application for the safety order. It also includes a person, being of full age, who resides with the respondent in a relationship the basis of which is not primarily contractual. A person who has lived with the respondent as husband or wife for a period of at least six months in aggregate during the immediately preceding period of nine months may apply for a barring order.
I am aware that these provisions have been the subject of a number of criticisms on the basis that they seem to distinguish between heterosexual relationships and those of persons of the same sex, that they are too tightly drawn and on other grounds. However, the significant point is that they afford the far-reaching relief available under the Domestic Violence Acts to people in non-marital relationships and in this way recognise the reality of such relationships and the need to protect vulnerable people from violence in their own homes.
A further example is the Civil Liability (Amendment) Act 1996, which amends the definition of "dependant" contained in the Civil Liability Act 1961 for the purpose of actions in respect of fatal injuries. The definition now includes as a dependant a person who was not married to the deceased but who had, until the date of the deceased's death, been living with the deceased as husband or wife for a continuous period of not less than three years.
Going outside my own area of responsibility, non-marital relationships are recognised in a number of other Acts, for example, in the Department of Social and Family Affairs. I will not go into too much detail regarding what has been done in the social welfare legislation, but I have supplied the text to the House for people to consult later.
For capital acquisitions tax purposes, a member of a couple can apply to avail of dwelling house relief. Essentially, capital acquisitions tax no longer applies on the transfer of the home on or after 1 December 1999 provided it is the principal private residence of the disponer and-or the recipient and the recipient has been living in the home for the three years prior to the transfer. That provision brought in by the Minister for Finance, Deputy McCreevy, takes no regard of the sexual relationship involved, whether it be homosexual or heterosexual. Cohabitation is sufficient. That reflects a significant change in the law. The recipient must not have an interest in any other residential property because we do not want people moving in together in order to avoid the provisions of the Act. Subject to exceptions, the recipient must remain in possession of the house for six years after the transfer. That provision was made in order to stop people claiming to have some kind of cohabiting relationship, getting a tax free gift and then moving on.
Point 1(c) of the amendment calls on the House to note the content of Article 41.3.1° of the Constitution. This provides that the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack. It is in this area that there is something of a difference of approach between our constitutional provisions and Article 8 of the European convention as interpreted by the Court of Human Rights. Article 41.3.1° pledges the State to guard the institution of marriage on which the family is founded. It thus places the family solely in the context of marriage. In the Nicolaou case, Mr. Justice Walsh said it was quite clear to him that the family referred to in Article 41 is the family based on matrimony. We have an elaborate jurisprudence based on that point.
In contrast, the approach taken by the Court of Human Rights in the context of Article 8 of the convention is that family life extends beyond the family based on marriage. In the Keegan case, to which I already referred, the court recalled that the notion of the family in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto family ties where the parties are living together outside of marriage. In the Keegan case, the court said that there existed between a non-marital child and his parents a bond amounting to family life even if at the time of his birth the parents are no longer cohabiting or if their relationship has ended.
The constitutional position is clearly something that needs to be kept in mind in considering this motion and any draft legislation that comes before this or the other House. The difference between this position and that which has emerged from the Court of Human Rights is something which was addressed by the Constitution review group and will no doubt be considered by the All-Party Oireachtas Committee on the Constitution in the future. The view of the review group was that the protection of the family as a unit, as distinct from the protection of the individual's right to family life, presented particular difficulties if the definition of the family unit was to be extended beyond the family based on marriage because of the uncertainties inherent in such an approach. The European convention does not protect the family unit as such, rather the individual's right to respect for his or her family life, the meaning of this being developed on a case by case basis in the jurisprudence of the Court of Human Rights. The Constitution review group took the approach that the Constitution should continue to contain a pledge by the State to guard with special care the institution of marriage and to protect it against attack. This should, however, be subject to a proviso that this provision should not prevent the Oireachtas from legislating for the benefit of families not based on marriage or for the individual members thereof. According to the review group, there should also be a guarantee to all individuals of respect for their family life whether based on marriage or not.
Even in the absence of changes along these lines, it does not follow that Ireland is in breach of the European convention solely because the so-called de facto family is not, as such, given constitutional protection. We must ensure that the obligations in the convention are given effect in our statute law, subject to the constitutional pledge of special care for the institution of marriage.
I agree with Senator Quinn. I do not believe protecting the institution of marriage ever involves, by some kind of analogy, penalising unfairly those who are not in matrimonial relationships. It may involve, on some occasions, discrimination in the technical sense between married people and unmarried people because if there is no difference, there is no special status but by the same token discrimination, in the other invidious sense of the term, in terms of inflicting penalties, suffering and unfairness on people, is not a necessary concomitant of protecting the family.
All of this brings me to the recently published consultation paper of the Law Reform Commission on rights and duties of cohabitees. I stop here to ask, in the presence of Senator Norris, what is wrong with the phrase "cohabitants". "Cohabitees" seems to be a passive phrase, and I do not understand it. It annoys me when I see lists of people who are in attendance on an occasion being referred to as "attendees". It is a misnomer.
Mary O'Rourke (Fianna Fail)
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What should they be called? Should they be called attendants?
Michael McDowell (Dublin South East, Progressive Democrats)
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Attendants.
David Norris (Independent)
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I agree with the Minister but I am not responsible for it. It is not the phraseology of the——
Michael McDowell (Dublin South East, Progressive Democrats)
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"Cohabitees" does not mean anything to me.
Michael McDowell (Dublin South East, Progressive Democrats)
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Maybe I am old-fashioned but I just do not like it.
David Norris (Independent)
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What is wrong with being old-fashioned? I am a bit that way myself.
Michael McDowell (Dublin South East, Progressive Democrats)
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This paper contains a comprehensive examination of the law as regards cohabitees and makes recommendations for change. It does not recommend any new institution such as registered partnerships and does not analyse this question, which is for another day but is not far off. Instead, it makes proposals in individual areas of the law that would improve the situation of cohabitants. It repeatedly stresses, as it successively discusses the various subjects that arise, that the commission's overall approach is that cohabitation is not to be equated with marriage. In general, the commission appears to endeavour to propose solutions that correspond with the status of cohabitation rather than the lifelong commitment of married persons with a view to generating children, which is the primary purpose of the protection given to marriage.
In discussing this paper it should be stressed that it is a consultation paper and not a report. The commission has invited observations by September next and will then proceed to draw up a final report making definitive recommendations. I look forward to the outcome of that process and hope that the All-Party Committee on the Constitution will have regard to the finalised report when that process of consultation has concluded.
A notable feature of the consultation paper is that the reforms being proposed would apply to what are termed "qualified cohabitees", but what I hope will be referred to as qualified cohabitants, defined as persons who live together in a marriage-like relationship for a continuous period of three years or, where there is a child of the relationship, of two years. This includes relationships between same sex or opposite sex couples, neither of whom is married to each other or to any other person. The commission argues that the exclusion of any person who is married is necessitated by Article 41 of the Constitution, which deals with the family.
Among the specific provisional recommendations are the right for cohabitants to apply for a property adjustment order and a maintenance order in certain circumstances; the right to apply for relief under succession law where provision has not been made in the will of the deceased cohabitee; the extension of the definition of "cohabitation" in social welfare legislation to include those in same sex relationships; a relationship of qualified cohabitants should be recognised by the taxation code; qualified cohabitants should get more favourable treatment for the purposes of capital acquisitions tax and stamp duty, corresponding to that accorded to closely related persons but not as favourable, they argue, as that applying to a married couple; qualified cohabitants should be given greater recognition in the context of health care situations and decision-making; qualified cohabitants, not just those living together as husband and wife, should be included in the definition of "dependants" for the purposes of civil actions for wrongful death; and the residency requirement in respect of barring orders for cohabiting couples should be reduced and removed for cohabitants seeking a barring order where they have the sole ownership or tenancy in the property, and also in respect of safety orders.
The general text of that paper accords with views I expressed at the Progressive Democrats conference in March when I said that legal recognition should be given to same sex unions or civil partnerships in some fashion but that this recognition should not put such unions on the same legal basis as marriage. I understand from remarks attributed to Senator Norris that he is in agreement with me on that proposition. Those who are of a socially conservative disposition or who are worried by all these events should pause to ask whether any of this will damage the social fabric of society. Does it damage the social fabric of society if people who are living together currently have the tax break the Minister for Finance, Deputy McCreevy, gave them, and does it strengthen the fabric of society to deny people the other proposed changes which are to be found in the Law Reform Commission's report?
Social reality is changing and the law must respond in order to treat people in non-marital relationships equitably. Whereas I can see that Deputy Norris, coming from the point of view of equality for homosexuals in our society, is looking at this as a question of sexual orientation equality, there are other areas where there are non-sexual relationships which deserve some degree of support.
Michael McDowell (Dublin South East, Progressive Democrats)
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There should be an obligation and an entitlement for somebody who joins, say, a religious order to make the mother superior or some other member of the community the next of kin. There are some people in the clergy who share my view that it is right that the law reflects a relationship where responsibility and caring exists and helps those relationships rather than ignores them because whether they are homosexual, heterosexual, asexual, intellectual or based on faith communities, that relationship of responsibility and caring, one person for another, is one which should be supported by the law and not disregarded by the law on the basis that it is not marriage per se. That is what the Government amendment proposes.
Having heard what Senator Henry said in opening the debate and having considered the text of the Government amendment, it is not a matter on which we should divide.
Michael McDowell (Dublin South East, Progressive Democrats)
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Perhaps somebody will come into the House later and say he or she has a radically different view of the world and, if so, we will have to take that into account but it would be a pity to have a false division when everybody appears to be agreed on the approach to be taken.
David Norris (Independent)
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Is the Minister indicating a withdrawal of the amendment?
Michael McDowell (Dublin South East, Progressive Democrats)
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It is not mine to withdraw.
Sheila Terry (Fine Gael)
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This is a welcome and refreshing debate and I thank the Minister for his contribution. I thank also the Independent group for putting down the motion, which is welcome on this side of the House.
Society is changing, and I welcome that change. I am glad I am living in this age and not that of my mother, which was a much more difficult society for the people at that time. Even in my time I have experienced changes for the better, which I welcome, but I recognise that there are many more changes to be made to make our society more equal, just and caring for all our people.
I want to give some figures that indicate the way Ireland has changed in recent years; Senator Henry may have given some of these figures already. According to the Central Statistics Office, in 2002 there were 77,600 cohabiting couples in Ireland. That figure is up from 31,300 in 1996, an increase of over 40%. That increase is significant and must be recognised. Overall, those couples accounted for 8.4% of all family units in 2002 compared with 3.9% in 1996. The figures also show a 125% rise in the number of same sex couples over the past six years, from 150 to 1,300. Two thirds of those were male couples. We must recognise that in 1996 a huge number of people in gay relationships may have been shy about coming forward and letting that be known. However, it may still be the case today that there are many people in gay relationships afraid to come forward and acknowledge it publicly. The number of people living in non-marital relationships now stands at 155,000 adults, with more than 51,000 children, so we are no longer speaking about a tiny minority of people. It is a substantial number. Article 8.1 of the European Convention on Human Rights states, as the Minister said, that "Everyone has the right to respect for his private and family life, his home and correspondence". I do not think that anyone here today would argue with that.
The time of politicians and others interfering in people's lives is well and truly over, particularly interfering in people's bedrooms. Some 12 years ago Ireland criminalised gay people and those seeking to use contraception freely. It straitjacketed those in unhappy and even abusive marriages. We live in a new Ireland and, as I said at the outset, I welcome that fact. Fine Gael has contributed in no small part to that creation. We could not argue with Article 8 and instead see it as not going far enough, as it is loaded with caveats, including the need to protect morals. That is a loaded phrase if ever there was one.
Fine Gael sees no problem with making substantial improvements and developments in this area, in the same way as the Government seems to. We have developed several policies designed to protect everyone in the State, not least vulnerable children who may be living in families outside what some people believe is the traditional norm, but are in fact no less loving or protective than any family that came before them. It is worth noting that this debate comes against the backdrop of cuts in social welfare that hurt every family, whether married, unmarried, gay or straight. The Government has been slow in debating this issue and introducing the necessary changes. I welcome what the Minister said today and look forward to any changes that he brings about.
In the coming weeks, Fine Gael will aim to reignite the debate on civil partnerships that has been bubbling away underneath for some time. We have drawn up and agreed policies that will grant gay couples, and heterosexual couples who do not wish to marry, full equality before the law in the areas of tax, inheritance, next of kin, succession, workplace entitlements and others. Judging from those who have spoken here today, including the Minister, we are in agreement on that area. We will publish our policy on that over the next few weeks.
Partnership rights are the State's way of recognising that the world and the country have changed. While we still strongly support the institution of marriage, we are mature enough as a society to know that we must offer those who do not, cannot or choose not to marry the options that they deserve. Respect for marriage and relationships that fall outside marriage are not mutually exclusive. The Government should remember that when deciding to respect this House by providing it with the legislation that we believe is necessary in this area.
6:00 pm
Jim Walsh (Fianna Fail)
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I too welcome the debate on these issues. It is important that the Houses of the Oireachtas lead the way in the debate, addressing issues that are obviously of significant social consequence for major minorities nowadays. It is much better that we lead by having a debate and evolving a well-thought-out consensus in such areas, rather than, as has happened in the past, allowing matters to drift and taking a more laissez-faire approach. Practices come about purely because there is no policy in the area. It is more or less made up on an ad hoc basis. I have seen some of that and, from my perspective, I feel that some of it has not fully complied with the intention and spirit of our Constitution, in some degree perhaps having assisted in undermining it.
I believe Senator Terry gave some statistics on cohabitation. That area is changing, just as Ireland is changing as a society, much of it for the good and some of it not. I do not necessarily subscribe to the view that everything new is good and everything old is not so good. We had many values in society for which we must have certain regard to ensure that, as we progress and pass on our legacy to future generations, it is done in a way that will best underpin their opportunities and the potential for them to lead a well regulated and adjusted life in society.
It is my strong opinion that the family unit as we traditionally recognised it has really been the cornerstone of society over not just decades and centuries, but since prehistoric times. Evidence is now being produced that family units existed then so even in presumably uncivilised times, it was obviously recognised that society needed some basis for people to accord with each other so that it could regulate itself properly. Senator Quinn may have unintentionally ignored what is in the Constitution. It is worth reminding ourselves of Article 41.1.1° and Article 41.1.2°:
1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
Article 41.3.1° states
The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
The Minister put it rather well when he said that nothing in that in any way implied that there should be discrimination against other forms of family-type units which exist today. However, we must recognise that it challenges us. If we accept that the basis in the Constitution is a very good one for society not just 70 years ago, but today and for future generations, the challenge to us is how we ensure that cohabitees — other phrases have also been used — can be dealt with responsibly and fairly without, on the other hand, undermining the status of marriage in society.
Senator Henry alluded to the large number of single parent family units and any of us who have been involved in local authorities over the years will have seen a dramatic change. In my early days in local government, three-bedroom houses were generally allocated to married people and one-bedroom houses to elderly people. That is how it was. However, that has now changed completely and the vast majority of applicants are single parents, mostly girls, looking after their children. He or she is left in that situation in many instances by a partner who does not have the same commitment to the child, perhaps. People in that position deserve great credit and support. On the other hand, I have come across situations where applicants in that category are there specifically because of the structure of the social welfare system. Rent subsidy and lone parent's allowance is removed if he or she admits to be living with a partner. That is part of the laissez faire approach to which I referred earlier. It has been going on for at least a decade and a half or maybe longer.
It is also worth noting that until recently every child had a father as well as a mother.
Jim Walsh (Fianna Fail)
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Yes, but is there not cloning? The father, in many instances, is not supporting the child. I know the social welfare system is making attempts to change that. A couple that brings a child into the world has responsibilities as well as rights. In many instances, the State is not pursuing matters of this kind as strongly as it should.
I want to refer, briefly, to the Law Reform Commission's report that deals with a number of provisional recommendations, none of which I have difficulty with. Much of what the commission is doing and the process to which the Minister referred will, hopefully, address many of the difficulties this category of people is encountering. As regards the definition of qualified cohabitees — the commission's term — where it refers to unmarried couples, some account must be taken of married people who give up their marital status and end up in second relationships, which beget children.
Jim Walsh (Fianna Fail)
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I am not talking about registration in this regard. While it is in breach of the constitutional position, it is an issue that needs to be addressed in some shape or form. There are responsibilities involved here.
David Norris (Independent)
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I have just returned from abroad and had not quite anticipated this debate. However, I am glad that it has been put down by my colleagues and I am happy to lend my name to it. I welcome it and I believe it is important that Senator Henry should have approached an area in which I am vitally concerned from a slightly different angle. I would like to say, at the beginning, that I have legislation in preparation which is virtually finished. We are just refining one of the sections at the moment, but this debate provides the opportunity to take some other matters into consideration as well, perhaps, just minor technical things. Lest I forget, I would like to emphasise for the Minister's benefit, that the proposed title is the domestic partnership Bill 2004. It scrupulously avoids the word "marriage". I have always done so. Unfortunately, sometimes newspaper headlines, reporting what I have said, refer to "gay marriage". I have never used that phrase and dislike it as it creates an unnecessary resistance to what is, in my opinion, very much a question of fair play, decency and justice. For that reason, I welcome not only the Minister's remarks, to which I will turn in a few moments if I have the time, but most particularly the eloquent contributions of Senator Henry and Senator Quinn.
Senator Quinn is a deeply committed loyal Catholic. I know he is proud to be a Knight of St. Gregory and understand he is not at all ashamed to be a member of the Knights of St. Columbanus. It is gratifying to hear somebody from that background talk about "the most decent and principled thing", although he is a strong supporter of marriage. So am I. Where did I come from? I did not descend from the trees. I came out of a marriage. My father and mother loved each other. They had a wonderful marriage. Thank God for it and I am grateful the institution was there to provide a happy childhood for me. For Senator Quinn to say, as he did, that the fact that one supports marriage should not be a basis for depriving other people of rights, is absolutely right, as is his contention that people should be led rather than driven into this.
This is where I see a flaw in a previous tradition and a view that is sustained by some aspects of religious life in this country. In the judgment of Mr. Chief Justice O'Higgins, in one of the cases which I took, for example, he maintained that the kind of legislative change we got under the criminal law code would undermine marriage. That was wrong and was simply based on a prejudice. If anybody feels this, he or she should read an important book called Coming Out — Irish Gay Experiences. The most poignant and desperately sad, desolating articles therein are not from the gay people. They are from the women to whom gay men were coerced into marrying. The damage was done to them. When the gay man decided he was able to come out, this was a wonderful bonanza for him, but tragedy for the wife who was trapped in this relationship. We need to be terribly careful about the way in which we think we support marriage. People like myself who believe in long-term committed relationships should not be seen as the enemies of marriage. We should be seen as allies. I am not asserting that all sexual relationships should be regarded in the same way. The relationships in which gay people engage are not the same as marriage. Many of my gay friends have told me they do not want to be described in this way. Sometimes, with a sense of humour, they add that they have seen what it has done to others and do not want it to happen to them. However, they recognise there is a difference.
On the other hand, everyone is entitled to work within his or her own ethical religious context to change the views of the church, to get blessings if necessary. If they can bless a few agricultural implements and goldfish, I do not think it would kill them to bless a few poor old lesbians while they are at it. However, that is entirely up to them.
I have been intellectually strong, although not rude or unfair, in my comments on certain documents emanating from the Vatican and statements coming from the church here. I welcome the tone of Archbishop Brady's comments at the conference on the family. He was right to put at the top of his agenda the fact that the church condemns attacks on gay people and so on. However, I regret that extensive reference was made to a dangerous document emanating from the Vatican, under Cardinal Ratzinger, in which politicians are instructed not to vote positively in this area. That is wrong and I very much hope we will have the velvet glove rather than the steel fist in this debate. I will try to avoid contentious language in order that this may be possible. I trust that the kind of attitude adopted by Senator Quinn will prevail.
The Bill I referred to will be finalised within the next week or two. It will then be professionally scrutinised and I will seek permission to put it before the House. I decided to look at the principle involved in this matter, which as the Minister said does not just extend to gay people. I was glad and absolutely supported him when he said that consideration of these matters should also take communities, such as religious orders, into account. Why not? The State has no right to pry into people's private sexual activity. I was glad when the Minister noted how significant was the change introduced by the Minister for Finance, Deputy McCreevy, in a budget in the late 1990s as a result of a debate here in this House.
We were not allowed to amend the budget but made recommendations, one of which came in the light of a case involving a gay couple who had been living together for 30 years in west Cork. The older man was aged 80 while the younger was aged 70. The older man got Parkinson's disease and, as a caring partner, put the house in the name of the younger man, who then got cancer and died, leaving the unfortunate old man who had shown himself, even though ill, to be a caring partner with a bill of €300,000 for living in the house in which he was born. That is the type of unfair situation I want to address and that my Bill will address, if it is permitted. I would like to think that it might come from this House, selfishly because I have worked in the Seanad for a very long time and this would round out my political career, but more importantly because it would give recognition to the Seanad. It is 45 or 50 years since Professor Stanford's Bill providing for humane conditions in abattoirs was passed in this House. It would be useful if, after consultation with the Government, this matter could be resolved through this House.
A social change is happening. Many people are involved in relationships outside marriage; one third of children are born outside marriage and the Bill will seek also to protect them. There has been a 125% increase in the numbers who acknowledge themselves as same sex couples. That figure is significantly underreported because, even today, very few people are prepared to give that kind of intimate information. It could be multiplied by 100. I welcome very much the attitude of all those who have spoken, particularly Senator Quinn and the Minister. There has been a very positive and constructive debate about decent, committed people who want to register their partners so that they can be next of kin at a deathbed, so that they can live openly with someone with whom they have had a relationship even though they are outside the EU, and so that they can inherit property and benefit from pensions. Why should I contribute to pensions just to look after the widows and orphans of my colleagues? Why should someone with whom I have lived for 27 or 30 years not receive something from a fund to which I have contributed?
People like me do not damage marriage. People like Britney Spears, who got married for half an hour in a drunken fit in Las Vegas, damage it. That was a marriage. Should I be asked, simply because it is called marriage, to respect that more than the two men who recently celebrated the 25th anniversary of their love and commitment, surrounded by their families in the Incorporated Law Society premises in Dublin? We need to rely once more on the fairness of the Irish people.
I seek and hope that this House may be able to help the Government in a situation where all parties, except Fianna Fáil, when surveyed at the last election strongly supported this type of legislation, including recognition of domestic partnerships, registration and so on. Fianna Fáil said it was in neutral mode and that it had no policy. I hope that this will go through from this House.
Maurice Hayes (Independent)
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I congratulate Senator Norris on his helpful contribution which, as always, was very stimulating. I am grateful to Senator Henry and her colleagues for bringing this matter forward for debate and to the Minister for the way in which he responded to it. I agree with the Minister that the House should not divide on this issue. We all seem to be heading in the same direction, possibly at different speeds. Therein may lie a compromise because Senator Henry described the amendment as the longest of long fingers. If the Minister could give an assurance that it was not a long finger but that these matters would be brought forward quickly, in due course it might be possible to withdraw the motion and the amendment. It is wise in these matters to wait until the consultation period of the Law Reform Commission has been completed. I recognise too the very helpful contribution of Archbishop Brady to that debate.
We need to be concerned about children. I support Senator Norris' view on long-term domestic arrangements rather than marriage and I would continue to make that distinction. A happy and stable marriage is the best place in which to raise children. There are, however, some marriages, which are awful places in which to rear children. Stable and loving relationships, however structured, are as conducive to the solidity and stability of society as many others. Times are changing. I was Chairman of the Mater Hospital in Belfast for several years and the midwives told me that a generation ago unmarried mothers coming in would buy or borrow a cheap ring in order not to be conspicuous in the ward. Now the married women take off their rings.
We may ultimately need to consider a constitutional amendment too. There is always a problem with constitutional provisions founded on a particular view of society at a given time and on a certain set of social mores because mores change. The family has changed. I commend to the Minister a very useful book by a French sociologist, Philippe Aries, Centuries of Childhood: A Social History of Family Life which traces that change. While I acknowledge the form of marriage and family based on the nuclear family that obtained at the time of the drafting of the Constitution and which continues, this is changing for many reasons and we must recognise that fact.
I am concerned at the idea that there should be a marital relationship, which is somehow more "pukka" than a non-marital one because it creates the danger of stigmatisation. It requires a great deal of thought and discussion and I can understand why the All-Party Oireachtas Committee on the Constitution shied away from it because when one moves away from the rock of the definition of the family created by marriage, it is extremely difficult to find a form of words to encapsulate the other types of relationships that exist. As long as our debate is informed by a sense of decency and respect for the individual, of the value of difference, and recognises that we must deal with people as they are and that life is changing, we have started a useful and helpful debate which I hope continues. We should wait until the Law Reform Commission completes its consultation.
The Minister might think it useful for the Human Rights Commission to compare and contrast the positions of protection available in Ireland with the EU Convention and others. I would like us to agree that the debate should go on and that it is not necessary for us to divide the House. I commend the debate and I was particularly struck by the content and humanity of the Minister's response. These are the values that we must recognise.
Brian Hayes (Fine Gael)
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I welcome this debate and congratulate Senator Henry and her colleagues for putting down this motion. I hope the House will not divide on the Government's amendment which is on the Order Paper. The debate started here and should continue here. I welcome Senator Norris's proposal to bring forward legislation on this matter. I would also welcome its early publication so that the Seanad could play a lead role. This is one of the areas in which the House has an immense contribution to make to Irish politics. Despite all the political pow-wowing that goes on in the other House, we have time to debate matters rationally here and there is much expertise on both sides of the House. Legislation will eventually be introduced in this area and we could make our mark on it. I very much welcome this debate.
I congratulate my party colleague, Senator Terry, whose policy document on civil partnership proposals was passed by our front bench. It will be published in the coming weeks and will reflect many of the ideas that have already been aired in the House. On behalf of the party I thank her for her work on this important issue.
Brian Hayes (Fine Gael)
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I am a great believer in marriage. I understand that, psychologically, men do much better from marriage than women.
Brian Hayes (Fine Gael)
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They live longer. International studies show that men do much better out of marriage than women.
Brian Hayes (Fine Gael)
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Long may that be the case. We must wake up to the variety of relationships that exist in society. The State must recognise the coming together of loving people to share a space, a family home, for a long period of time. It must meet them not only half-way but, in the fullness of time, must provide fully for such relationships. That is the kernel of this debate. We have a long way to go to recognise the multifaceted forms of Irish family that exist.
As a young parent of a child of two and a half years and one of seven months, I do not know how single parents cope. It is difficult to have one parent exclusively looking after one, two or three children. For the most part, this work is done by women. I do not know how they cope. We must legislate for families in all their shapes and forms.
We hear a great deal of talk about the care and protection given to children. It is a scandal at a time when so many couples want to adopt children, and go to extraordinary lengths to do so, that we cannot find enough people for long-term fostering of children. That is the experience of health boards in regard to foster parents, at a time when parents are looking all over the world for children to adopt.
When civil partnerships are ultimately recognised, which I hope will be the case, this should in no way dilute the importance and primary role of marriage in society. Nobody has suggested that civil partnerships should be on an equal footing with marriage; it is not a legitimate argument. Marriage has a special status and we must continue to highlight its importance and encourage people to marry, as well as to form long-term relationships. That does not undermine the fundamental unfairness that exists for many cohabiting couples. A young man and woman in my constituency could not afford to buy a house. The young woman has a child by another partner. The young man's father gave the couple a plot of land on which to build a house. The young woman has to pay stamp duty, whereas if the couple were married she would not be liable to pay it. That is a classic case of inequity. This family cannot afford to build a house that would be a loving home, which is a matter that needs to be addressed.
On pension provisions, if a gay or heterosexual couple are living together for 20 or 35 years, why can part of the pension not be given to the remaining partner on the death of the other? We must address this unfairness. One of the greatest benefits of marriage is that when one marries a non-Irish citizen, after a period of time, that person is automatically entitled to residency. The same is not true for cohabiting couples and this is another issue we must address.
Colleagues referred to welfare benefits. Another matter of serious concern relates to compassionate leave. If a loving couple who are living together are not married, why does labour law not give any protection to them in a case where one of the parties is sick or needs long-term care?
The issue of next of kin is another obvious example where we need to modify the law, as is the area of property rights. It is horrendous that people can live together for a long period of time yet not be able to provide for the future on the death of one of the parties. That issue has to be addressed in future legislation.
The Minister referred to a fundamental discrimination that exists in regard to religious communities, whereby community members cannot bequeath their estate to the community. The same anomaly exists in the case of elderly brothers and sisters living together, which is common in rural Ireland.
Brian Hayes (Fine Gael)
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Why should the law be different for them?
Brian Hayes (Fine Gael)
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We must provide a structure for elderly brothers and sisters who care for each other and live in the same house to ensure they are not discriminated against.
I welcome this debate. We are at the start of a long road. In the presence of the Leader, I urge the Government to continue the debate in this House where we can make considerable progress in terms of advancing some of the recommendations of the Law Reform Commission. Government and the Opposition can work in a bipartisan way to ensure the legislation is updated to give the necessary recognition to civil partnerships.
Mary O'Rourke (Fianna Fail)
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I concur with the leader of the Opposition, Senator Brian Hayes. This is not a polarised debate. We did not set out just to talk about cohabiting couples or heterosexual "cohabitees", a term which the Minister decried because he wished to use a different word. Neither did we set out to talk about lesbian or gay relationships. We set out to discuss the totality of relationships outside the married state. The debate so far has been most interesting. The Minister made the point, as did Senator Henry, Senator Maurice Hayes and many others, that we are well aware of the article in the Constitution which recognises that the State must work positively to underpin marriage — the actual wording is more legalistic than that. We adhere to that and recognise that it should be the case. However, we also recognise that the world — and Ireland is no different — is made up of couples of varying needs, desires and circumstances which lend themselves to other types of relationships. Over time, such relationships gain recognition and demand responses from the State.
Senator Walsh, the party spokesman on legal matters will be in the House before 6.55 p.m. and with Senator Henry will propose a composite arrangement, which we hope will find favour with all Members.
We have come a long way. As Senator Quinn and Senator Henry stated, the world has changed. We could all put our heads in the sand and pretend that nothing exists outside of happy, fulfilled marriages. We are all pleased there are many happy fulfilled marriages and there is no doubt that there are. I was extremely lucky in that regard. However, that does not mean I am not aware that there are many other sad relationships or couples in marriages, which have long failed, who, for some reason or because of convention, are not willing to say so. I know of couples who live in silence and that is sad. They go in and out the one door, meals are eaten and dishes washed in complete silence. To pretend that everyone is like Cinderella or Pollyanna is ridiculous and out of kilter with what is happening in society. I emphasise that I do not decry the state of marriage but applaud it. I applaud people who have entered into it, worked at it, continue to work through various difficulties and challenges which rise to meet them almost on a daily basis and who decide they can work towards a fruitful and happy relationship. It is the most blissful state one could be in.
However, I recognise there are many other relationships. When I was a member of a local authority most of my work there related to housing. At that time local authorities recognised the needs of single mothers. I echo what Senator Hayes said about the work involved in a mother, whether a single mother or a mother who was married and is separated, rearing one, two or three children. It is mostly women who rear children on their own; I do not know of many men who do so. Thankfully, the State has recognised single mothers, but I remember when it did not and castigated them from the pulpit and all sorts of other places. Local authorities decided early on that there are different definitions of family units and dealt with them according to their housing needs, not according to their morals, or as others might say, their absence thereof.
I note from the Law Reform Commission's paper that the number of relationships involving two men or two women is increasing. They have increased from 150 couples to 1,300 couples in recent times. Equally, there has been a major increase in the number of men and women living together. Some 77,000 recognised couples live in a loving inclusive relationship and want to continue in that type of relationship. To decry any relationship, regardless of a couple's gender, which is loving, inclusive and brings happiness is wrong. Who are we to throw stones? Who is anyone to castigate another person because he or she may appear to be different or in a relationship that is outside what, in true Catholic terms, would be regarded as normal? I feel I can talk openly about this issue because I was lucky to be in a marriage that was happy and inclusive, although we also had major difficulties at times. We did not get up every morning and go to bed every night thinking the sun was shining on us.
This consultation paper by the Law Reform Commission is a good start to an ongoing debate, as Senator Brian Hayes said. This paper sets out what various countries are doing in this regard and the different types of cohabiting couples. It also sets out the recognised, contractual and presumptive relationships and what they can yield.
Our justice spokesperson will be here before the end of this debate. He has consulted Senator Henry, myself and others and I hope we can come to an arrangement on this matter. I have dipped in and out of this consultation paper and have read most of it. It is worth reading to learn what is happening in other countries in this area. We cannot put up a big fence and say that people will stay forever in the wonderful orchard of happy marriage. Many will, and good luck to them, I am happy for them, but many will not be able to. If they are not able to, we should start to examine the legislative path ahead. We can do that but it will take a long time. There will not be a metamorphosis in society overnight or a clap of thunder and suddenly everything will be in place to meet the needs of every type of couple. That will require an awakening, which has begun. It will require careful reading in this regard and for the Government to give this matter careful consideration.
This House is the better for being able to have debates such as this where Members of all parties can express themselves freely and not feel they are overstepping the mark or making comments which might be harmful. We are making them with clarity, in truth and with respect. Respect is the key word. We must respect people and their various relationships.
Joe O'Toole (Independent)
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This debate is a landmark in the discussion on this issue. The positive input by the Minister to this motion, proposed and seconded by my colleagues, marks an important move forward. I ask the Minister and his Department officials to examine this in a challenging and open way, along the lines proposed by Senator Hayes. This is not a party issue. There is no political or party gain to be made from it. We need to examine how we can move forward. Senator Norris has made major progress in drawing up a Bill on this matter. The Department should be open to helping and supporting him in developing it and, if necessary, taking it over at some stage. I formally put it to the Minister to take that approach and I hope he will do so.
In the maturation and development of society, there are clear signs along the way. Societies have always developed, irrespective of the ideas of different philosophers, with levels of antipathy between different groups. People of different views, culture, colour or who support different football teams start from a base of antipathy towards each other. As society develops, people move to at some stage recognising their similarities and differences but not accepting difference, and then later to acceptance of difference. People move to a stage where there is a tolerance of difference, of which we on this island have observed a great deal. One of the problems society creates for itself in terms of its objective of achieving a developed society is that tolerance is often given far too high a level of credibility because it is taking a step beyond tolerance that will effectively be the criterion on which society is judged, namely, the positive movement towards people of difference. In the creation, development and building of a multifaceted society, diversity and difference is cherished and perceived to be an enriching quality and people seek not only to create the space for difference but work towards creating what would be described in other discussions as an intercultural society, an objective that can also be ascribed to this debate. This issue is about interculture and interplay between people of different backgrounds and beliefs, people in different groups who support different models. That is what defines a society.
An issue that was recognised tonight is that concepts of love, commitment, sharing, support and longevity are not only to be found in the family model. As Senator Maurice Hayes said, often there can be situations in the marriage model which are less than positive, good, or supportive for the development of children and family life, and that is well recognised. We are dealing with recognising how we as a society can move forward, which is what we should do.
The tone of the debate has been non-threatening, which is great. The archbishops should not have to be concerned about this matter. There should be no attempt to undermine the value and position of the family in the Constitution or in society. We should simply consider giving recognition to what exists.
I do not know if we really understand the difficulties experienced by people who are different. I have many friends of long standing and people close to me who are gay. I do not believe Senator Norris will object to me stating that I shared an office with him for the first five years I served in the House. I saw some of the post he received and the negativity, abuse and horrible comments to which he was subjected. The Senator knows my views quite well and is aware that since then I have always advised gay people that they should not feel any need to come out or declare themselves to be gay. These people have enough trouble in their lives without adding more.
I was involved in a discussion recently with some friends of mine who are positive, supportive and open. We were talking about mutual friends who were present and one asked why they would not just tell us that they are gay. That is the point where difficulties arise. Nobody should ever feel the need to make a declaration of their sexuality. It should never be necessary to do so. No more than someone should have to say he or she is heterosexual, neither should a person have to declare he or she is homosexual. There should simply be supports in place for these people in our society. We should give careful consideration to that matter. Many gay relationships are more loving, stable, long-term and loyal than the traditional family models. That is no reflection on anybody; it is just worth knowing.
There are two groups in society about which I am always concerned. The first comprises the ageing parents of Down's syndrome children who worry about what will happen to their children when they die. The other group is comprised of partners in gay relationship who are the main earners and who wonder what will happen to their loved ones when they die. I am aware of funerals where gay partners were not even recognised by the families at the service. None of that is necessary. It is not about us trying to decide how matters should develop. It is about us being open and tolerant, without threatening anyone's beliefs, undermining anybody's faith or giving any offence to the Constitution. We must work along the lines outlined by the Minister. Much of what he said has been supported by the comments made by other speakers.
Is it not possible to recognise that this is an issue for everyone and move forward? There are many examples of problems arising because someone decided to take a particular party line. I cannot conceive of any party line that might be taken in respect of this matter. In moving it forward we need to recognise the kind of supports people need. Where people have given their lives to each other — regardless of whether they happen to be unmarried or involved in a same sex relationship — we must recognise that they have given a commitment and have an entitlement. We must, therefore, deal with many matters such as pensions, property and wills. The Minister outlined the various items of common law that are evolving. This is a complex and complicated area and we need to address it.
This debate has been a hugely important step forward and has also been completely non-confrontational. I am delighted that the Minister indicated that it is possible that we may reach an agreement on the motion. I compliment Senator Henry on tabling the motion and appeal to the Department to discuss with Senator Norris the content of the Bill to which he referred so that this issue can be moved forward in an all-party fashion.
Martin Mansergh (Fianna Fail)
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I welcome the Minister of State, Deputy Parlon, and his officials. I also welcome the motion tabled by the Independent Senators on which there has already been an extremely worthwhile debate.
It is far better in this type of area to proceed by means of debate, clarification and consensus. Like most Members, I recall that 20 years ago this type of debate could have been quite divisive with one side wanting to force through so-called enlightened measures against the traditional view. However, since the late 1980s we have worked, to a large extent, together. I refer, for example, to the judicial separation legislation on which Fianna Fáil and Fine Gael worked together. In addition, there was the legislation on illegitimacy. In the early 1990s, Fianna Fáil and Labour worked together on homosexual reform. In the mid-1990s, the then Leader of the Opposition, now the Taoiseach, Deputy Bertie Ahern, played an important role in securing agreement on the way in which the divorce referendum could be passed.
Nothing any of us wishes to say should be taken as a detraction from the important and vital roles of marriage and the family, which are recognised in the Constitution and are particularly valuable social institutions. Equally, everyone recognises that the pattern of relationships has changed. We are not starting from scratch in this regard. As the Minister pointed out, we have already made progress in narrowing a gulf that once existed between marriage and the family, on one hand, and any other sort of relationship, on the other. While there is a great deal of detail to be dealt with, most of us support that progress on humane grounds.
I am contributing to this debate because I want to introduce a concept to it. I have in my possession a paper by the Law Reform Commission which refers to cohabitees. Senator Brian Hayes, the Leader of the Opposition, used the phrase "civil partnership". I wish to introduce a third phrase, "companionship", which reflects that about which we are talking, namely, loving relationships. The vital point — which was made by the Minister and Senator Brian Hayes — is that we should not be referring to relationships that are defined by sexuality, be it heterosexuality or homosexuality.
Martin Mansergh (Fianna Fail)
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The debate must be broader than that. I recall instances where brothers and sisters, friends or whomever lived together. We should not, therefore, view relationships in terms of sexuality.
As Senator O'Toole stated, outside of marriage, people's precise relationship with each other, regardless of its nature, is no one else's business. There is an exception, however, if there are children involved or if it is a one-parent family. Recognising what Senator O'Toole stated, is there not a need for something broader? It is on this point that I disagree with the Law Reform Commission which, in respect of non-sexual relationships states "The Commission is not concerned with such relationships because, in our view, it is not possible to devise a single scheme for the determination of legal rights and duties". That is a challenge we must embrace and overcome. It would have a liberating effect on the debate in this area if, for example, gay relationships or unmarried relationships — regardless of whether divorced persons are involved — could be subsumed into a wider category I prefer to call "companionship" but which others may prefer to term "civil partnership". What we are discussing is broader than the term "cohabitation" which makes central the sexual nature of a relationship. If we could do that, we would be doing something useful and enlightened. We would also be able to get consensus on the matter if we were not exclusively focused on certain types of relationships. While this, obviously, subsumes and includes those sexual relationships, it does not necessarily put them up in lights as being the main reason for what we are doing. Many valuable, loving relationships exist.
I was conscious, when a member of the tax strategy group under the previous Government, that tax revenue has much to do with the problem. The Exchequer collects an enormous amount of revenue from people who, although they may be in the types of relationships about which we are talking, are not recognised for tax purposes as such, for example, brothers and sisters, etc. There are some exceptions, particularly in the agricultural sector, but they are limited. If we look at capital transfer revenue, a huge amount of it comes from people who are living together not necessarily in a sexual sense, but under the same roof, or from relatively close relations but not parent-child or married.
The Department of Finance holds much of the responsibility in this area. We might like to think that it is all a question of moral attitudes and of changing them but we need to disabuse ourselves of that idea. Tax revenue has much to do with a certain degree of resistance to change in this area.
Don Lydon (Fianna Fail)
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I wish to share my time with Senator White.
Don Lydon (Fianna Fail)
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This important debate is being conducted in a calm and rational manner. I like the idea of moving forward with consensus, if that can be achieved. This is the beginning of a debate that will carry on for some time. The subject needs much discussion because of the many issues at stake.
I am not sure I can agree with Senator Mansergh that sexuality should be removed from the equation. Surely, we do not propose giving the same rights to brothers as we would to people living together, whatever their sex.
Don Lydon (Fianna Fail)
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I know what the Minister said, but that does not mean I agree with him. The Minister can be wrong also.
David Norris (Independent)
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Does that apply even to a Fianna Fáil Minister? Surely not.
Brian Hayes (Fine Gael)
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That is an example of a marriage of two of a kind.
Timmy DooleyDon Lydon (Fianna Fail)
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This debate is useful but there is a long way to go. My main reason for speaking on this issue is to second the amendment. It covers most of what we would like to see achieved in the area and it calls on the relevant members of the Government to keep the law on these matters under review and bring forward legislative proposals as appropriate. When Senator Norris brings forward his Bill, we can examine it. Article 40.3.1° is important and should be examined carefully.
Mary White (Fianna Fail)
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I compliment Senator Henry, Senator Norris and the other Senators who raised this matter. We are here as legislators to respond and to take regard of evolution in society. In our lifetimes a spontaneous evolution of family and relationships has taken place. It is difficult to believe the change in the perception of marriage and homosexuality from that held only 20 years ago to the view that is held today. What is wonderful about 2004 is that we have become more tolerant and I am pleased to be part of that move.
In our Constitution the family is seen as the married couple. Research in the United States leaves no doubt but that children raised by two parents have better opportunities. A child raised by two people has an easier life and more opportunities than a child brought up by a lone parent because of the greater earning power of two people.
I would like us to evolve in the manner suggested by Senator Henry. We have 90,000 one-parent families with children under 19 years of age. We have 77,000 co-habiting couples and one third of all births are outside marriage. I do not believe that our laws cater for the children from these relationships. Children are invisible in the eyes of the law. Our law must evolve to take into consideration children who do not get equal opportunities to those of children of a two-parent family. The State has a responsibility to look after those children.
I have often pointed out that the Government has a responsibility to those who are less well off. It must be concerned about the children of single mothers, the cost of crèches, etc. The State must look after the human rights of each of its children. They did not ask to be born. We have an obligation as legislators to look after the children and to protect them from the changes that have taken place in society.
Sheila Terry (Fine Gael)
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Some married couples also live in poverty.
Mary White (Fianna Fail)
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I do not dispute that fact. However, I am concerned with the issue of family as raised by Senator Henry. She knows what I mean.
7:00 pm
Mary Henry (Independent)
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I am profoundly grateful to all the Senators who contributed in such a constructive manner on this debate. I am also grateful to the Minister of State for his remarks.
Let me cheer Members up. Marriage is still incredibly popular. The marriage rate in Ireland is approximately the same as it was in 1951. Far fewer people got married then because of poverty and other reasons. The outlook, as far as marriage is concerned, is cheerful. Most couples who can get married and who have a loving relationship with a companion look on marriage as a gold standard.
The Constitution does not propose something unnatural but something the majority of people seem to want eventually. While it is true that 90,000 family units are headed by single persons, 85% of whom are women, many of those single parents were already married and are either separated or divorced. Senator White is right that the children of such institutions must be carefully nurtured. This is very important. Approximately one third of the children born in this country are born outside marriage but about two thirds of those children are born to people in stable relationships. Many of those eventually marry which is what most of them want.
My reason for asking the Minister to address this issue — I was pleased with his reply — is to ensure greater stability in society, not less. People have obligations as well as rights. We must suggest to them that despite the fact that they have not made legal and, in some cases, religious promises to each other, they have the responsibilities of the companionship they may have had, as mentioned by Senator Mansergh also. This is important.
I am delighted that this debate arose at the same time as the debate on the rights and duties of cohabitees or cohabitants. I will send Mr. Justice Budd a copy of this extremely useful debate and I hope the Law Reform Commission will find it useful in its deliberations before bringing forward its paper.
Jim Walsh (Fianna Fail)
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I propose the amendment be taken as an addendum to the main motion.
Mary Henry (Independent)
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I agree to that. I certainly do not want to divide the House after such a good debate.
Brian Hayes (Fine Gael)
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On a point of order, is it suggested that the words in the Government amendment be added to the motion in the name of Senator Henry and her colleagues?
Paddy Burke (Fine Gael)
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The proposal is to add the following wording as an addendum to the motion:
Seanad Éireann
(1) notes that
(a) it is an objective of the Government that Ireland fulfils its obligations under international law, including its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms,
(b) Irish law takes account, in a number of ways, of non-marital relationships and the situation of unmarried parents,
(c) under Article 41.3.1° of the Constitution, the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack, and
(d) the Law Reform Commission, as part of its Second Programme of Law Reform which was approved by the Government, has recently published a Consultation Paper on Rights and Duties of Cohabitees and has invited persons to make submissions on this by 30 September 2004, and
(2) calls on the relevant members of the Government to keep the law on these matters under review and bring forward legislative proposals on them as appropriate.".
Is that agreed?
Don Lydon (Fianna Fail)
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Is that not a different motion? Was there not an original motion and an amendment to be taken first? If that is another motion, it is a different debate.
Martin Mansergh (Fianna Fail)
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I agree to the proposal. It would be a great shame to divide the House on this matter.
Martin Mansergh (Fianna Fail)
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Adding our amendment to the motion put forward by Senator Henry should satisfy the interests of all sides of the House.