Recognition of same-sex unions in the Republic of Ireland
Civil partnerships in Ireland, granted under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, give same-sex couples rights and responsibilities similar, but not equal, to those of civil marriage. Recently, there has been growing discussion on the legal recognition of same-sex marriage. This may require an amendment to the Irish Constitution. A referendum to approve such an amendment will be held on 22 May 2015. According to one October 2014 poll, the amendment is supported by about 67% of respondents.
- 1 Civil partnerships
- 2 Legal position before civil partnerships
- 3 Public debate
- 4 The 'KAL' recognition case
- 5 Law Reform Commission
- 6 Other statutory bodies and NGOs
- 7 Constitutional review
- 8 Department of Justice working group (Colley Report)
- 9 Enabling legislation
- 10 See also
- 11 References
- 12 External links
Civil partnerships, introduced by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, give same-sex couples rights and responsibilities similar, but not equal to, those of civil marriage. The legislation also provides rights for participants in long-term cohabiting relationships (opposite- or same-sex) who have not entered into a civil partnership or marriage. The following entry focuses primarily on the same-sex civil partnership aspect of the Act, as opposed to the cohabitation aspect.
The Civil Partnership Act came into effect on 1 January 2011. It had been expected that the first ceremonies would not take place until April 2011 due to a three-month waiting period required by law for all civil ceremonies. However, the legislation does provide a mechanism for exemptions to be sought through the courts, and the first partnership, which was between two men, was registered on 7 February 2011. While this ceremony was carried out publicly in the Civil Registration Office in Dublin, the mainstream media were not present.
It was not until 5 April 2011, the date originally anticipated as the date for the first ceremonies, that the media covered a civil partnership. This partnership ceremony, which was between Hugh Walsh and Barry Dignam, also took place in Dublin
The tax code was amended in July 2011 under the Finance (No. 3) Act to take account of civil partnership. The Act, in the main, is retrospective to 1 January 2011 and it creates virtual parity, in taxation matters, between civil partners on the one hand and married people on the other hand. The Social Welfare code had already been amended in December 2010 to take account of civil partnership.
Recognition of foreign partnerships
Certain foreign partnerships and same-sex marriages are recognised as civil partnerships since 13 January 2011. While Glenn Cunningham and Adriano Vilar are often cited as the first same-sex couple to have their civil partnership formally recognised in Ireland, in fact several hundred couples were recognised together at the exactly the same time. The couple formed a civil partnership at a ceremony in Northern Ireland in 2010.
Section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 states the criteria used to govern which classes of relationships can be recognised. They are:
- the relationship is exclusive in nature
- the relationship is permanent unless the parties dissolve it through the courts
- the relationship has been registered under the law of that jurisdiction, and
- the rights and obligations attendant on the relationship are, in the opinion of the Minister, sufficient to indicate that the relationship would be treated comparably to a Civil Partnership.
The recognition is formally authorised by a statutory instrument, four of which in been passed: in 2010, listing 33 relationship types in 27 jurisdictions; in 2011, adding 6 relationships; in 2012, adding 4; and in 2013, adding 14.
The French PACS is not included, nor are some other legal relationships – for example, the Dutch Civil Partnership and some of the Domestic Partnerships in the United States. The reason is that these kinds of relationships can be dissolved by agreement between the parties (that is by both parties signing a document with a lawyer), not through the courts.
Legal position before civil partnerships
In March 2004, there was controversy in the Dáil surrounding a definition of 'spouse' when it was claimed that the Minister for Social and Family Affairs, Mary Coughlan was seeking to exclude non-married partners from Social welfare legislation. The exclusion was a Government response to a finding by the Equality Tribunal that a same-sex couple was discriminated against in travel privileges.
In 2004, the Civil Registration Act, which included a prohibition of same-sex marriage was passed. The act explicitly declared that there was an "impediment to a marriage" if "both parties are of the same sex".
In December 2006, judgment in the 'KAL Case' (see below), the Irish High Court held that marriage as defined in the Irish Constitution was between a man and a woman and that there was no breach of rights in the refusal of the Revenue Commissioners to recognise foreign same-sex marriages.
Following the decriminalisation of "buggery" in 1993, gay rights was not a high-profile issue in Ireland. From 2001 however, Irish media increasingly covered international developments in the same-sex partnerships issue. This has included coverage of reports on the issue, legal cases taken by Irish same-sex couples, surrogate parenthood, adoption, extra-legal same-sex unions, blessings and the foreign partnerships of Irish politicians. There was extensive coverage of the 2005 introduction of Civil Partnerships by the British Government, which apply to Northern Ireland.
Irish Legislators began to comment publicly from 2003, some tentatively suggesting legislation, and some referring to Catholic teachings. Among the general public, reaction was favourable, with a 2005 online poll showing most respondents seeing some recognition as inevitable and acceptable. More rigorous public polls taken during 2006 showed an increasing majority of the population, up to 80%, supporting the introduction of some partnership rights for same-sex couples, with a slim majority favouring full marriage. The numbers in favour of adoption by same-sex couples were lower but less clear.
At the 2002 general election only the manifestos of the Green Party and the Labour Party (Ireland) explicitly referred to the rights of gay couples, but from 2004 all political parties, including the then Fianna Fáil/Progressive Democrat government, produced polices or made statements in favour of varying forms of recognition. In 2004 Fine Gael was the first party to launch an explicit policy document supporting civil partnerships.
In the run-up to the 2007 general election, the manifestos of all parties supported Civil Unions for same-sex couples with Sinn Féin and the Green Party supporting full civil marriage. All parties ran advertisements in GCN (Gay Community News) with commitments to same-sex couples.
Existing and new gay organisations such as GLEN, GLUE and Noise began specifically campaigning for recognition in 2006.
A survey carried out in 2008 showed that 84% of Irish people supported civil marriage or civil partnerships for same-sex couples, with 58% (up from 51%) supporting full marriage rights in registry offices. The number who believe same-sex couples should only be allowed to have civil partnerships fell in the same period, from 33% to 26%.
A public survey in October 2008 revealed 62% of adults would vote Yes in a referendum to extend civil marriage to same-sex couples. A breakdown of the results shows that support is strongest among younger people and in urban areas. Women were more supportive at 68% compared to 56% of men. There was slightly less support for same-sex couples being given the right to adopt. A total of 58% of those under 50 believe same-sex couples should be able to adopt, falling to 33% among the over-50s. A total of 54% believe the definition of the family unit in the Irish Constitution should be changed to include same-sex families.
A survey commissioned by MarriagEquality in February 2009 indicated that 62% of Irish people supported same-sex marriage and would vote in favour of it if a referendum were held.
In September 2010, an Irish Times/Behaviour Attitudes survey of 1,006 people showed that 67% felt that same-sex couples should be allowed to marry. This majority extended across all age groups, with the exception of the over-65s, while 66% of Catholics were in favour of same-sex marriage. Only 25% disagreed that same-sex couples should be allowed to marry, opposition that was concentrated among older people and those in rural areas. In terms of same-sex adoption, 46% were in support of it and 38% opposed. However, a majority of females, 18-44-year-olds, and urban dwellers supported the idea. The survey also showed that 91% of people would not think less of someone who came out as homosexual, while 60% felt the recent civil partnership legislation was not an attack on marriage.
A poll in March 2011 (by the Sunday Times/RED C), showed that 73% of people supported allowing same-sex marriage (with 53% "agreeing strongly" with the idea), while 60% felt that same-sex couples should be allowed to adopt children.
A late 2012 poll by Millward Brown Lansdowne shows that 75% would vote in favour of extending marriage to same-sex couples.
A poll in November 2013 (by RED C for Paddy Power) showed that 76% of voters intended to support the introduction of same-sex marriage in any referendum, with 18% opposed and 6% undecided (with the undecideds excluded the ratio is 81% support, 19% against). Support was highest among women (85%), those under 44 (87%), Labour supporters (96%) and those living in Dublin and commuter counties (83%).
A poll in April 2014 by the Irish Times and Ipsos MRBI found that 67% would vote in favour of same-sex marriage and 21% against, with 12% undecided. When the undecided are excluded, 76% are in favour and 24% against.
The 'KAL' recognition case
In November 2004 lesbian couple Katherine Zappone and Ann Louise Gilligan (K & AL) were granted leave by the Ireland's High Court to pursue a claim to have their September 2003 Vancouver marriage recognised for the filing of joint tax returns in Ireland. Mr. Justice Liam McKechnie remarked that the case was significant and would embrace far-reaching issues touching many aspects of society. Lead barrister, Gerard Hogan, argued that neither the 1937 Irish constitution nor more recent tax laws specifically define marriage as between one man and one woman. Following a delay, the Government announced in April 2005 that it would contest the case on the basis of advice from the Attorney General that it would prevail. The case attracted media coverage in The Boston Globe and the couple were interviewed on The Late Late Show.
The case was heard in October 2006 and in the judgment was delivered on 14 December 2006. Ms. Justice Dunne found that although a "living document", the Irish constitution had always meant for marriage to be between a man and a woman, that the definitions used in the Civil Registration Act of 2004 was an expression of the current attitudes of the state and that she could find no reason to change that. Further, she found that the constitution did not violate the plaintiffs' rights under European law. The judgment did say, however, that the topic is very much in the news and that there were undoubtedly difficulties and hardships for same-sex and unmarried heterosexual couples and that
- "It is to be hoped that the legislative changes to ameliorate these difficulties will not be long in coming. Ultimately, it is for the legislature to determine the extent to which such changes should be made."
Of note, the Dunne judgment did not explicitly opine that same-sex marriage if agreed by the Oireachtas, would be unconstitutional. On 23 February 2007 the case was appealed to the Supreme Court. The case came before the Supreme Court in 2012, although returned to the High Court to challenge different elements of law, specifically the Civil Registration Act of 2004 and Civil Partnership Act of 2010.
Law Reform Commission
In December 2000, as part of the Second Programme of Law Reform, the Government requested the Law Reform Commission of Ireland to examine the Rights and Duties of co-habitees. In April 2004, the commission published a consultation paper with provisional recommendations on legal issues related to cohabiting relationships. The report included an analysis of issues for same-sex couples. Following responses, the final report was launched in December 2006 by Justice Minster Michael McDowell.
The consultation proposals called for legal 'presumed' recognition of qualifying cohabiting relationships. Qualifying Cohabitees were defined as unmarried same-sex or opposite-sex cohabiting couples in a 'marriage-like' relationships of 2 years (or 3 years in some cases), to be determined by the courts.
The commission reviewed such areas as property, succession, maintenance, pensions, social welfare and tax and recommended some changes in the law to provide rights for qualifying co-habitees. These rights would be applied by the court on application as distinct from the 'automatic' rights of legal marriage. The commission took care not to propose anything which would equate co-habitation with marriage due to concerns that such a proposal might violate the constitutional protection of the family.
The paper also included recommendations on other steps that cohabiting couples should take such writing wills, defining power of attorney, etc.
Other statutory bodies and NGOs
Since 2002, various statutory bodies have issued reports calling for recognition of homosexual and de facto heterosexual relationships.
Equality Authority: In January 2001, the authority produced a report on Same-sex partnerships in Ireland, which it had commissioned to inform its own debate. In May 2002, the Equality Authority issued its formal report on Equality for Lesbians Gays and Bisexuals, which highlighted the lack of recognition for same-sex couples in Irish law. In a departure from the norm, the report recommended legislative changes. These were to give legal recognition to same-sex couples, to provide equality with married couples in the areas of adoption, inheritance and taxation to eliminate discrimination.
NESF: In April 2003, the National Economic and Social Forum (NESF) published Report 27 – The implementation of Equality policies for Gay, Lesbian and Bisexual people. The recommendations included calls for the Law Reform Commission to consider models to achieve equal rights for same-sex couples in its then upcoming report.
Human Rights Commission: In a report on de facto couples presented to the Justice Minister in May 2006, the Irish Human Rights Commission evaluated international standards in dealing with unmarried couples, and assessed the changes needed in Irish law from a human rights perspective. The Commission called for legal recognition of all de facto relationships, but did not call for civil marriage to be made available to same-sex couples. The IHRC has also released a report on the Civil Partnership Scheme in January 2009.
Irish Council for Civil Liberties: Legal recognition of partnership rights and addressing inequalities in family law are a strategic objective of the ICCL for 2004–2009. In a December 2004 submission they welcomed the Law Reform proposals, but said that registered unions were necessary. In a 2005 radio interview the partnerships officer said that full civil marriage would not be likely to succeed in a referendum. However, their May 2006 report on the issue, "Equality for All Families" launched by ICCL founder Kader Asmal, called for legislated partnership registration and revisions to the constitutional provisions on civil marriage and the family, to give improved protection to children. This revision, which might require a referendum, should include a right to marry irrespective of sexual orientation.
The All-Party Oireachtas Committee on the Constitution, re-established in December 2002, has been conducting a review of the entire constitution. In October 2004 it invited submissions on the Articles related to the family. Chairman Denis O'Donovan TD stated that it was examining these Articles to ascertain the extent to which they are serving the good of individuals and the community, with a view to deciding whether changes in them would bring about a greater balance between the two. Among the many issues raised by the committee were the definition of the family and the rights of same-sex couples to marry.
The relevant provisions are Articles 40.3, 41 and 42
- Article 41
- 1° 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 committee held oral hearings in Spring 2005 and received an unexpectedly large volume of written submissions with at least 60% being opposed to any constitutional changes to marriage or the family. The final report, the Tenth interim report of the committee, was launched by Taoiseach Bertie Ahern on 24 January 2006. It recommended no change to the constitutional definitions, as it expected such a referendum to fail. It suggested that there should instead be legislation for a civil partnership registration open to same-sex or opposite-sex couples which would confer succession, maintenance and taxation rights. Controversially, it also recommended that the 'presumed' recognition of co-habiting partners by the courts, as recommended by the Law Reform Commission, should also be legislated for, but only for opposite-sex couples. The basis for the limitation was that it would be easy for the courts to determine the validity of an opposite-sex relationship if there were children.
Department of Justice working group (Colley Report)
On 20 December 2005, Minister for Justice Michael McDowell announced that he was creating a working group in the Department of Justice to provide options for government consideration. This announcement came on the day after Belfast in Northern Ireland held the first of the new UK Civil Partnership registration ceremonies. The Government said that it would legislate following the report, but Taoiseach Bertie Ahern also said there might not be time to do so before the then upcoming election.
Chaired by former TD Anne Colley, this working group included GLEN, the gay rights lobby organisation, who said they expected a recommendation for civil marriage. The group facilitated a conference on the topic in May 2006, as input to its reports which was attended by experts from other countries which have introduced civil unions and same-sex marriage. During his speech, McDowell was interrupted by members of the Ancient Order of Hibernians opposed to the Government plans.
Initially to report by March 2006, the group presented its report to Government in November 2006. They recommended that a civil partnership scheme would resolve most of the issues for same-sex and cohabiting couples, while providing less benefits than marriage. Offering civil marriage to same-sex couples would be open to constitutional challenge. They also recommended a legal presumption of partnership for couples which have lived together for three years, or have children together. No recommendations were made for couples in non-conjugal relationships due to lack of research. The cabinet reviewed the report, but no legislation was introduced before the 2007 General election, and in the intervening period the Government rejected opposition legislation, saying that legislation should await the KAL Case Supreme Court challenge.
Norris bill 2004
Life in Ireland
In December 2004 Independent Senator David Norris, who had been central to the 1970s and 1980s Campaign for Homosexual Law Reform tabled a Private Member's Bill on Civil Partnerships in the Seanad. The bill provided for the recognition of unmarried partnerships, both same-sex and opposite-sex cohabiting couples. It defined eligibility for a civil partnership and the process of registering a civil partnership. Rather than listing all the rights of a civil partner, it specified that all the rights of marriage would apply to anyone in a civil partnership. However, it specifically defined the dissolution process and the process for recognising foreign civil partnerships.
Norris said the Bill was initiated "to protect the rights of adults who find themselves in relationships outside the conventional bonds of marriage" and "to meet the requirements of those who are making arrangements in their personal lives outside the formalities of marriage" and who also "need to be supported in the creation of mature stable relationships". Norris said he had done substantial research in order to achieve consensus on a moderate bill which took on board stated reservations.
The debate, including contributions from Justice Minister Michael McDowell, took place on 16 February 2005. The majority of speakers supported the principles behind the bill and complimented Senator Norris on his work. Some expressed reservations due to the Constitutional protection of the family.
A Government amendment designed to postpone a vote attracted much acrimony. This postponement was to allow for input from then ongoing investigations: the Law Reform Commission, the High court KAL Case on the Canadian Marriage and the Constitutional Review committee. Eventually it was agreed to debate the bill but adjourn a vote indefinitely.
Labour Party bills 2006, 2007
Similar to the Norris bill in its provisions, this bill defined a Civil Union as providing all the rights and duties as defined for marriage, but specifically limited Civil Unions to same-sex couples. It also provided for adoption by Civil Union couples.
The debate, again including contributions from Justice Minister Michael McDowell, took place in February 2007. All speakers supported Civil Unions for gay couples and complimented Deputy Howlin on the bill. One expressed reservations about adoption. Minister McDowell claimed that the bill violated the constitutional provisions on marriage and the family. Government speakers said that Civil Unions needed to be introduced but that more time was needed to take account of the ongoing Supreme Court case and investigation work in the department of Justice.
The Government amended the bill to delay debate for six months. As expected, the bill then fell when the Dáil was dissolved in the intervening period for the 2007 general election. Deputy Howlin said that the real reason for the delay was that the Government did not want to enact this type of social legislation in the face of an election.
Labour again brought their bill before the new house on 31 October 2007 but the Government again voted the bill down. The Green Party, now in Government also voted in opposition to the bill, with spokesperson Ciarán Cuffe arguing that the bill was unconstitutional but without giving a reasoning. The Government committed itself to introducing its own bill for Registered Civil Partnerships by 31 March 2008, a date it failed to meet.
Government legislation 2008–10
With the entering of the Green Party into Government in 2007, a commitment to legislation introducing Civil Partnerships was agreed in the Programme for Government in June of that year. On 24 June 2008, the Government announced the Heads of its Civil Partnership Bill. The Bill was expected to take approximately 6 months to pass, with the legislation expected to come into effect by June 2009.
In response to the legislation, Government Senator Jim Walsh put forward a party motion to counter the Bill. and the Irish Times reported that around 30 unidentified backbenchers had signed the motion. One anonymous Senator was quoted as claiming that the motion "would have considerable support from the more conservative sections of the parliamentary party". Taoiseach Brian Cowen, responded by insisting that the registration of same-sex couples would not interfere with the constitutional status of marriage. Cowen noted that the Bill had been drawn up in close consultation with the Attorney General and had been included in the programme for government. The motion was referred to the parliamentary party's justice committee on 1 July 2008 but a Fianna Fáil spokesperson was quoted as saying that there was "broad support" within the party for the legislation, while the Taoiseach and the Minister for Justice, Equality and Law Reform Dermot Ahern reaffirmed the constitutional compatibility of the law.
The announcement of the Heads was denounced as inadequate by the opposition parties Labour and Sinn Féin. Sinn Féin spokesperson Aengus Ó Snodaigh commented that "the Government must do better".
The Government published the full Civil Partnership Bill on 26 June 2009 and said that it would be operational before the end of 2009. Dermot Ahern, the Minister for Justice, Equality and Law Reform, introduced the bill's second stage on 3 December 2009. He said that consequent modifications to the finance and social welfare provisions would come into effect when the bill was passed. There was further Second Stage debate on the bill on 21 January 2010. The Second Stage finished on 27 January 2010. The Committee Stage of the bill was completed on 27 May 2010. The bill was passed in the Final Stage by the Dáil without a vote on 1 July 2010. The bill was passed in the Final Stage in the Seanad by a vote of 48–4, on 8 July 2010 and was signed by the President of Ireland on 19 July 2010. The Minister for Justice and Law Reform Dermot Ahern said: "This is one of the most important pieces of civil rights legislation to be enacted since independence. Its legislative advance has seen an unprecedented degree of unity and support within both Houses of the Oireachtas."
The Minster for Justice signed the commencement order for the Act on 23 December 2010. The Act came into force on 1 January 2011. The date of commencement of the act was dependent on further legislation in the areas of taxation and social welfare, which was enacted separately. The Social Welfare and Pensions Bill 2010 was passed by the Dáil on 14 December and the Seanad on 17 December 2010.
Government proposals 2011–present
The coalition government which took office in March 2011 held a special Constitutional Convention to discuss proposed amendments to the Constitution of Ireland, including plans to introduce same-sex marriage. On 10 July 2012, the Dáil, the lower house of Parliament, referred the issue of whether to make provision for same-sex marriage to the Constitutional Convention, to report back in a year. On 14 April 2013, the convention approved provisions allowing for same-sex marriage, to be discussed by the Oireachtas and put to a public referendum.
On 2 July 2013, the Constitutional Convention delivered the formal report to the Oireachtas, which had four months to respond.
On 5 November 2013, it was announced that a referendum to legalise same-sex marriage is to be held in the first half of 2015. On 1 July 2014, Taoiseach Enda Kenny announced that the same-sex marriage referendum will take place in Spring 2015. It has since been confirmed that the referendum will be held on May 22, 2015
The wording of the proposed amendment to the Constitution was announced on 21 January 2015. If approved by the electorate, a new section will be added to Article 41 of the Constitution, Article 41.4, stating: ‘Marriage may be contracted in accordance with law by two persons without distinction as to their sex'. No change is proposed to the existing constitutional provisions on marriage.
In March 2015, the Department of Justice published the general scheme of a Marriage Bill 2015. The bill set out the changes to be made to legislation if the proposed amendment is approved. These changes include removing the current legislative bar on same-sex couples marrying (though the wording of the amendment is self-executing and designed to invalidate it irrespective of legislative delay), addressing the situation of civil partnership, and updating terminology of existing legislation to reflect the new provision.
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