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Rules of law applying to marriage should also apply to civil unions

Issued : Wednesday 31 October, 2007

Ceann Comhairle,

It is with a feeling of déjà vu that I propose the motion in my name and those of my Labour colleagues to restore to the Dáil Order Paper the Civil Unions Bill 2006.

Members will recall that this Bill was debated in February of this year; and in what I regarded as a cynical exercise the then Minister for Justice, Equality and Law reform proposed a reasoned amendment. That amendment while allowing the Bill to pass second stage postponed its passage beyond the time limit of that Dáil. In effect the Bill fell with the last Dáil.

I believed then as I do now that a majority of deputies in this House support this equality measure. It is time therefore to stop talking about equality and to legislate for it.

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

There are many Irish citizens in stable long-term partnerships who are denied legal recognition; who are denied the protections and rights of loving couples simply because of their gender. We have progressed a long way in Irish society. I firmly believe that most people today would have no difficulty in supporting the provisions of this Bill and taking this major step to ensuring equality for all Irish citizens.

Under the constitutional understanding of marriage and in accordance with current law, persons of the same sex cannot marry each other.

This Bill does not alter or seek to alter the current constitutional understanding of marriage. The Bill seeks instead to create an equivalent status relationship for the benefit of persons of the same sex. In simple terms, it provides that in most respects, the rules of law that apply 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." We believe that this Bill does not offend against that provision since it caters for people who cannot marry and so it is in no way in competition with the constitutional definition.
When this Bill was previously debated some sought to confuse this issue. This Bill provides a secure legal framework of recognition to same sex couples for whom marriage is not available.

The former Justice Minister in his amendment noted, that the Bill appears to be unconstitutional but did not provide in his speech any convincing argument for that view. So if that is a view to be put again - let's see the case for it.

Presumably those who believe that this measure would undermine the
institution of marriage are not saying that citizens of a homosexual orientation should reconcile themselves to heterosexual marriage; or arguing that offering civil unions to same sex couples would lure heterosexuals away from marriage. So on what possible basis can it be argued that making specific provision for same-sex couples would have any effect on an institution which is confined to opposite sex couples?

I believe that this Bill or one like it will soon become law and in future years we will again look back and wonder why the fuss.

Let me set out the details of the Bill.

Firstly, we propose that the general law as to capacity to enter a civil union would be the same as capacity to marry; with similar restrictions, i.e. underage, previous, valid marriage or union, mental in capacity or closeness of blood relationship.

We provide similar legal provision for notification, solemnisation and registration of a civil union to that of marriage under the Civil Registration Act 2004. We provide that where a religious registered solemnise has a conscientious objection to presiding he/she will not be required to so preside. This of course does not apply to civil registrars.

The Bill deals with the benefits 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 as those to which spouses in a marriage are entitled or subject. In particular the Bill provides 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.

We propose that the rights and obligations of parties to a civil union with respect to a dependent child be the same as those of a married couple with respect to such a child.

The Bill deals with such issues as pre-nuptial agreements; the recognition of foreign civil unions; civil union break-up and other related issues. In general the Bill applies the various aspects of existing family law to civil union relationships.

I know that one area of particular focus is the issue of adoption. We felt that this Bill should be as comprehensive as possible and we carefully examined this matter.

Our examination led us to propose a general amendment to the law of adoption. We set out for the first time in law basic principles or criteria for adoption. These principles would have general application in all adoption cases.

The subsection provides that in any decision on or relating to an application to adopt a child 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.

We set out in some detail the child focused criteria that must be considered:-

- 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 identify of his or her parents as far as practicable to be brought up by his or her parents and each of them or by other family members.

This provision is in accordance with the child welfare amendment published by the government and proposed to be examined by an all party committee vis 42.(A)

4. Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the best interests of the child.

In essence our proposal is that in any adoption case the paramount consideration is the welfare of the child.

Finally, the Bill makes provision for similar recognition in terms of existing practices and regulations for same sex cohabiting couples as cohabiting couple of different gender.

I have said that this Bill is reasonably narrow in its focus. It seeks to deal with same sex couples.

Other issues need to be addressed separately and should not be brought into this debate to cloud the issue. The Bill does not address the position of cohabiting opposite sex couples, nor does it aim to do so. That is for another day.

The Bill under discussion tonight has been informed by the debate and expert consideration in recent times, most notably the Colley working group. What Ms Anne Colley and her group recommended, was that full civil partnership for same-sex couples was viewed by the group as a distinct institution, separate from and not competing with marriage.

Let us tonight and tomorrow in this house respond to a social and human need for thousands of our citizens. Hardworking, taxpaying members of all our communities who wish simply to get on with their lives. Who wish to have their sexual orientation respected and their partnerships legally recognised.

I hope that members on all sides respond to that need with generosity and understanding.

I commend this motion to the House.