This new act is without question the most significant piece of social legislation introduced in Ireland since the Divorce Act of 1996. The Act was signed into law by President McAleese on 19 July 2010 but has not yet commenced. It is envisaged that the Act will be commenced in two stages, firstly the civil partnership registration scheme and secondly the cohabitant scheme.
The Act was titled the Civil Partnership Bill until just before its signing into law when reference to cohabitation was added. The original title did not by any stretch of the imagination qualify for a “Ronseal award” for doing what it said on the tin. Indeed in part due to the title of the original bill the proposals in the bill regarding cohabitation slipped under public and indeed the media radar for well over a year and only really came to prominence earlier this year.
As is evident from the new title to the Act, it deals with two major and distinct issues, namely the introduction of civil partnership for same-sex couples and a scheme of financial redress for qualifying cohabitants.
A third strand of the Act is the provision made for cohabitation agreements. Public awareness of this aspect of the Act appears very limited even now, notwithstanding that these provisions of the Act offer couples an opportunity to regulate their own financial affairs and largely to ‘opt out’ of the scope of the Act.
The first portion of the Act introduces Civil Partnership. This is a form of civil union available to same-sex couples. It is in effect an alternative for same-sex couples to marriage, which continues to be available only to opposite sex couples. The restrictions on entering into a civil partnership and the registration process mirror those of marriage. However a civil partnership can only be celebrated in the presence of a civil registrar and, whereas marriages are solemnised, civil partnerships are registered.
The Act provides that civil partners shall have various rights in respect of each other including rights in relation to a “shared home”, maintenance and succession rights. It is also intended that civil partners will be granted similar rights to married couples in the tax and social welfare codes.
The Act provides for the annulment and the dissolution of civil partnerships. A civil partnership can only be dissolved on the death of either civil partner or by a Court Order.
Upon an application to Court to dissolve a civil partnership, the Courts have power to grant various reliefs to either civil partner, similar to those available in cases of judicial separation or divorce (e.g. lump sum payments, property and pension adjustment orders, financial compensation orders, etc). One of the biggest differences between the civil partnership legislation and divorce legislation is that, upon dissolution of a civil partnership, the Court is only required to ensure that financial provision is made for the civil partner and not for any dependent children that may be residing with either of the parties, save in certain limited respects. The Act effectively creates no legal relationship between an individual and his or her civil partner’s children. The rights and obligations of a civil partner to his or her own children are unaffected by the Act.
In essence civil partnership creates rights and obligations between the parties which are similar to spouses in a marriage, save in a number of key respects. These differences appear somewhat arbitrary and may have been designed so that civil partnership can be argued to create a legal relationship somewhat less than that of marriage.
The cohabitation scheme in the Act applies to both opposite sex and same-sex couples, who are not married or not in a civil partnership and are unrelated. The Act does not seek to confer immediate rights on couples simply because they are living together, as is the case with married couples or civil partners. The overall aim of the Act is to provide a financial ‘safety net’ for individuals who are financially vulnerable because of their involvement in a cohabiting relationship. This aim is achieved by what is called a ‘redress model’, whereby certain qualifying couples who cohabit can seek financial relief from each other, either at the end of the relationship or on the death of one of the parties.
The scheme only applies to “a couple cohabiting in an intimate and committed relationship and not related to each other”. The Act details a number of factors which are to be taken into consideration to determine whether or not a couple are cohabiting for the purposes of the Act.
In order for a cohabitant to avail of the ‘redress model’ rights conferred by the Act, he or she must be what is defined as a “qualified cohabitant”. A qualified cohabitant is a person who is in a relationship of cohabitation for a period of:
a) two or more years (in the case where they are the parents of one or more dependent children) or,
b) five or more years in any other case
The five year period was previously three but was changed during the passage of the Bill through the Oireachtas following strong lobbying, particularly from farmers organisations. The Act specifically provides that an adult cannot be a qualified cohabitant if he or she is married to somebody else, unless seperated for a period of at least four years during the five years prior to the cohabitation ending.
In the event of a breakdown of such a relationship, the Court can grant financial redress to a qualified cohabitant. To do so the Court must be satisfied that the applicant for financial relief was financially dependent on the other qualified cohabitant and that such financial dependency arose from the relationship or the ending of that relationship.
The Court has power to make various orders in relation to compensatory maintenance, property, pensions and succession rights. While it is unclear as to how the Courts might interpret the scale of financial reliefs to be granted to a qualifying cohabitant, it is clear from the general terms of the Act that any such financial reliefs would not typically equate with reliefs granted in marital breakdown cases (or indeed on the dissolution of a Civil Partnership).
The Act also specifically provides that cohabitants can enter into agreements to govern financial matters between them during their relationship or when the relationship ends, whether through death or otherwise. Such agreements allow the parties to effectively ‘contract out’ of the rights provided by the Act to qualified cohabitants, although under the Act the Courts retain the right to vary or set aside any such agreement in exceptional circumstances where enforceability would cause serious injustice. Interestingly these provisions of the Act confer rights upon cohabitants that do not exist for married couples in circumstances where there is no legislative provision whatsoever in Ireland for pre-nuptial or other such agreements. This has been cited as one ground on which the Act may be subject to a constitutional challenge, as arguably undermining the status of marriage which is given special protection in the Irish constitution.