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Civil Union

Civil Union

Labour's Civil Union Bill was debated in the Dail on October 31st View extracts of the debate here

If you would like to read who said what, the last time Labour tabled the Civil Union Bill last February then go to here

Extract from the Dail exchange in February 2007:

Labour's Civil Union Bill deals with the benefits, protections and responsibilities of parties to a civil union. The essential purpose is to provide that parties to a civil union are entitled to the same rights, privileges and benefits and are subject to the same obligations, penalties and other sanctions, whether deriving from statute law, common law or an administrative scheme, policy, rule, procedure or practice, as those to which spouses in a marriage are entitled or subject

PRINCIPAL FEATURES


Civil union defined
The purpose of this Bill is to provide for the recognition and registration of civil unions. A civil union is defined as a “conjugal status relationship … by virtue of which two persons of the same sex as each other receive the benefits and protections, and are subject to the responsibilities, of parties to a marriage”.

By virtue of common law rules, buttressed by section 2 (2) (e) of the Civil Registration Act 2004 and, more importantly, the constitutional understanding of marriage, persons of the same sex cannot marry each other.

This Bill seeks to create an equivalent status relationship for the benefit of persons who are of the same sex. It provides that, in most respects, the rules of law applying to marriage will apply also to civil unions.

Article 41.3.1 of the Constitution states 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 considered that this Bill would not offend against that subsection since the institution it seeks to create is solely for the benefit of those who cannot marry and so runs parallel to marriage rather than in competition with it.

Capacity to enter civil union


The Bill assimilates the general law as to capacity to enter a civil union with capacity to marry. The impediments to entering a civil union will be similar to the impediments to marriage: underage, previous valid marriage or union, mental incapacity and prohibited degrees of relationship.
Solemnisation, etc
The law as to the notification, solemnisation and registration of a civil union will be similar to the law applicable to marriage and Part 6 of the Civil Registration Act 2004 will apply accordingly.

However, it is specified that nothing in the Bill will require a “registered solemniser” who is not a civil registrar of marriages to solemnise a civil union if the religious body of which he or she is a member has no recognised form of ceremony for the purpose of if he or she has a conscientious objection to so doing.

“Registered solemniser” is the term introduced by the Civil Registration Act 2004 to describe persons appointed and authorised to solemnise marriages. It includes the local registrar of marriages and also those clergy of various religious denominations who apply for the purpose.
Same benefits, protections, responsibilities
The Bill deals with the benefits, protections and responsibilities of parties to a civil union. The essential purpose is to provide that parties to a civil union are entitled to the same rights, privileges and benefits and are subject to the same obligations, penalties and other sanctions, whether deriving from statute law, common law or an administrative scheme, policy, rule, procedure or practice, as those to which spouses in a marriage are entitled or subject.

In addition, parties to a civil union are to be included in any definition or use of terms such as “married couple”, “spouse”, “family”, “dependent”, “next of kin”, and the like. And the expressions “brother-in-law”, “daughter-in-law”, “parent-in-law”, “sister-in-law”, “son-in-law”, “step child” and step-parent” and similar expressions will include relationships arising by virtue of a civil union as well as relationships arising by virtue of a marriage.

And the Bill provides in particular that parties to a civil union are responsible for the support of one another to the same degree and in the same manner as is provided by law for married persons.

Dependent child


The rights and obligations of parties to a civil union with respect to a dependent child are the same, mutatis mutandis, as those of a married couple with respect to such a child. A “dependent child” means –

  • a child adopted by both parties or in relation to whom both spouses are in loco parentis, or

  • a child of either party or adopted by either party or in relation to whom either spouse is in loco parentis, where the other party has treated the child as a member of the family,
    who is under the age of 18 years. It also includes children above that age in full-time education and children with a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully.

    Pre-nuptial agreements


    The Bill deals, to the extent that the law already recognises them, with pre-nuptial agreements. It states that persons who are entering or who are parties to a civil union may agree particular terms and conditions with respect to their union in the same manner, to the same extent and with the same effect in law as persons who are entering a marriage or who are married.
    Recognition of foreign civil unions and same sex marriages
    There are rules about foreign civil unions and foreign same sex marriages. The Bill creates a rule for the recognition of such relationships under Irish law in terms that are similar to the existing rules for the recognition of foreign marriages. Those rules require that, for a foreign marriage to be recognised as valid:

  • the formalities of the place in which it was celebrated must be complied with, and
  • the parties must have had capacity under the law of their domicile.

    As applied here, the rule states that, where a foreign jurisdiction provides for same sex marriage or civil union, then that relationship shall be recognised as a civil union under the laws of the State if the same rules as would, mutatis mutandis, apply to the recognition of a marriage solemnised outside the State are satisfied both as to the capacity of the parties and the obligation to meet any requirements for the formal validity of the relationship.

    Breakdown and disputes


    The Bill assimilates various aspects of existing family law to civil union relationships. These include rules relating to annulment, separation, divorce, child custody and support and property division and maintenance.

    However, the rules relating to annulment on grounds of non-consummation and judicial separation on grounds of adultery are excluded since neither concept, as defined in Irish law, is applicable to same sex relationships.

    The section stipulates that the Circuit Family Court and the High Court, will, as with marriage breakdown cases, have concurrent jurisdiction. Various existing rules relating to the venue of the courts hearing family law cases, the transfer of business between courts, the hearing and conduct of proceedings, and so on, are also applied to civil union cases.

    It is stated that such proceedings shall follow the same procedures and be subject to the same substantive rights and obligations as are involved in proceedings relating to a marriage.

    In addition, provision is made for appropriate rules of law to deal with the jurisdiction of the courts in relation to civil unions solemnised outside the State and the recognition of the judgments and orders of the courts of other states in proceedings relating to civil unions.

    Adaptation of statutes


    The Bill enables the Minister for Justice, Equality and Law Reform by regulations to make such general or specific adaptations of or modifications in other statutes, “in conformity with the purposes, principles and spirit of this Act”, as are necessary or expedient in order to enable such enactment to have the same force and effect in relation to civil unions as it does to marriages. He or she may also by regulations adapt forms and the information to be contained in any notice to be used for any purpose to which this Bill relates.

    Adoption


    The Bill has two substantive provisions dealing with adoption. First, it provides that parties to a civil union who are living together may apply to adopt a child. At present only a married couple or a single individual (regardless of sexual orientation) can adopt. There is no provision for joint adoption save by married couples.

    Second, the Bill makes a general amendment to the law of adoption by setting out, for the first time, adoption principles or criteria, to be of general application in all adoption cases. The subsection provides that, in any decision on or relating to an application to adopt a child, whether made by parties to a civil union or otherwise, due regard shall be had to –


    • the principle that the first and paramount consideration is the best interests and welfare of the child, throughout his or her life,

    • the concomitant principle that no person, whether by virtue of membership of a particular class of persons or otherwise, has a right to adopt a child or any particular child or a right to preferential consideration of his or her application to adopt a child or any particular child,

    • the child’s ascertainable wishes and feelings regarding the decision, considered in the light of the child’s age and understanding,

    • the child’s particular needs,

    • the likely effect on the child, throughout his or her life, of having ceased to be a member of the original family and become an adopted person,

    • the likely effect on the child, throughout his or her life, of having become an adopted child of the person or persons who applied to adopt that child,

    • the child’s age, sex, religion or religious background, national origin and cultural and linguistic background and any other relevant characteristics,

    • any harm which the child has suffered or is at risk of suffering,

    • the relationship which the child has with relatives and with any other relevant person, including –

    • the likelihood of any such relationship continuing and the value to the child of its doing so,

    • the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs,

    • the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child,

    • the child’s right to know the identity of his or her parents and as far as practicable to be brought up by his or her parents and each of them or by other family members.

    Cohabitation


    In a section dealing with cohabitation rather than civil unions, the Bill provides that enactments, rules of law and administrative schemes, practices and the like that confer rights, privileges or benefits or imposes obligations, penalties or other sanctions on a cohabiting couple or either of them, whether as between themselves or as regards other persons, shall operate to the same effect regardless as to whether each of the couple are of different sexes or the same sex.

     

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