The Civil Partnership Bill published by the Government in June will provide civil partners with equivalent rights and obligations to married couples across a range of areas including registration, maintenance and financial support, pensions, taxation, social welfare, succession, protection in equality legislation, immigration, residential tenancies and protection of the shared home.
The Bill also provides
a more limited set of protections for cohabitants, opposite or same-sex who do not marry or enter civil partnership. GLEN has commissioned Dr. Fergus Ryan,
Head of the Department of Law at Dublin Institute of Technology to do a legal analysis of the Civil Partnership Bill. The analysis below is in a Question and Answer format,
which we hope will be useful in understanding the scope of the Bill and the extent of the rights and responsibilities proposed.
A brief Overview of the Civil Partnership Bill is also available here.
For further information, contact GLEN at info@glen.ie
1.1 Overview and Purpose of this
Paper
1.2 When will this Bill become law?
1.3. Broadly, what does the Bill
propose?
1.4 Generally, what is the current
state of the law as it applies to unmarried and same-sex couples?
1.5 Generally, how will the
introduction of the Bill change the law for civil partners?
1.6 How does civil partnership
differ from marriage?
1.7 Generally, how will the
introduction of the Bill change the law for cohabitants?
2. Eligibility for Civil
Partnership
2.1 Am I eligible for Civil
Partnership?
2.2 We are opposite-sex partners.
Can we enter into a civil partnership in preference to marriage?
2.3. I am a transgendered person.
Can I enter into a civil partnership?.
2.4 Is it possible for close relatives
or siblings to enter into a civil partnership?
2.4.1 Can I enter into a civil
partnership with my former wife’s father?
2.5 Can I be a party to marriage
and a civil partnership at the same time?
2.6. Is there a residence
requirement for civil partnership?
3. Procedures for entering into a
Civil Partnership
3.1 What must we do prior to
entering a civil partnership?
3.4 Where does the ceremony take
place?
3.5 Can we celebrate our civil
partnership in a church?
3.6 When can the ceremony take
place?
3.7 Can someone (e.g. my mother or
ex-boyfriend) object to the civil partnership?
3.8 My partner does not speak
English. Can we enter into a civil
partnership?
3.9 Can we keep our civil
partnership a secret?
3.10 My same-sex partner and I got
married in Spain. Will our marriage be recognised in Ireland?
3.10.1 Which classes of foreign
legal relationships are likely to be recognised?
3.11 If I enter into a civil
partnership in Ireland, when does it take effect?
4. The rights and obligations of
civil partners.
4.1.1 What kind of dwelling
qualifies as a shared home?
4.1.2 What happens if my civil
partner sells the shared home against my wishes?
4.1.3 Is my consent required in all
cases?
4.1.4 I have a child. Will her
needs be considered in determining whether to dispense with consent?
4.2.2 In what circumstances will
civil partners be entitled to Maintenance?
4.2.3 What factors will the court
consider in deciding whether I receive maintenance, and how much?
4.2.5 Can we simply agree on our
own maintenance arrangements?
4.2.6 Can we agree to opt out of
the maintenance requirements in the Bill?
4.3 Rights on the death of a
partner
4.3.1 What happens if my civil
partner dies without making a will?
4.3.2 My civil partner has made a
will but has left me nothing but his CD collection. What can I do?
4.3.3. Are there circumstances in
which I can lose my succession rights?.
4.3.6 I already have a will, but am
entering into a civil partnership. What will happen to my will?
4.4 Recognition in equality
legislation
4.9.1 Specific Amendments to Ethics
Legislation.
4.11 Enduring Powers of Attorney
4.12 Succession to Protected
Tenancies
4.12.1 Inconsistencies relating to
children.
4.12.2 Housing (Private Rented
Dwellings) Act 1982.
4.13 What can I do to clarify my
legal status as a civil partner?
5. Relationship Breakdown:
Annulling and dissolving a civil partnership
5.1. My civil partnership has
broken down. Can we separate?
5.1.1. What is a separation
agreement?
5.1.2 Are such agreements
enforceable?
5.1.3 Am I totally free once I get
a separation agreement?
5.2 Dissolution of a Civil
Partnership
5.2.1 What are the grounds for the
dissolution of a civil partnership?
5.2.2 What is meant by ‘living
apart’?
5.3 Remedies available to the
parties on dissolution.
5.3.1 Maintenance and lump sum
orders.
5.3.2 Property Adjustment Orders.
5.3.4 Sale of Property of Civil
Partners.
5.3.5 Financial Compensation Order.
5.3.6. Allocation of Pension
Entitlements.
5.3.7 Termination of succession
rights.
5.4 On what basis does the court
decide to make particular orders?
5.5 Once an order is made can it be
varied?
5.6.1 Recognition of Civil
Partnership in Divorce legislation.
5.6.3 What are the obligations of a
person who enters into a new civil partnership or marriage?
5.9.1 What if my Irish civil
partnership is dissolved abroad?
5.10 Annulments/Decrees of nullity
5.10.1 Who may apply for a decree
of nullity?
5.10.2 What happens if I get a
decree of nullity?
5.10.3 What are the grounds for
annulment?
5.10.5 Are these grounds the same
as those that apply to marriage?
5.10.7 Capacity to form and sustain
a normal and caring relationship.
5.10.8 What are the consequences of
a void civil partnership?
6.1. If I take a case under the
Bill, will it be heard in private?
6.3 Who pays the costs of such
proceedings?
7.2 What is a ‘qualified
cohabitant’?
7.3. Can we be cohabitants or
qualified cohabitants if one or both of us is married to other people?
7.4 Do we need to register to
become cohabitants?
7.5 What rights do I have as a
‘cohabitant”?
7.5.1 Can we make our own
cohabitation agreement?
7.6 What rights do I have as a
‘qualified cohabitant”?
7.8 Can we opt out of this scheme?
8. The Rights of Children being
raised by Civil Partners
8.1 Surely by definition, same-sex
couples can’t have children?
8.2 What rights (if any) will
children have when they are being raised by civil partners?
8.3 Are the child’s best interests
being upheld by the Bill?
8.4 Does the Bill make any
reference to the children of civil partners?
8.5 What are the Succession Rights
of Children?
8.6 Conflicts of Interest involving
the child of a person’s civil partner.
8.7 Adoption, Guardianship, Custody
and Access.
8.9 Would the position be different
if same-sex couples were entitled to marry?
8.10 Possible Options for
Recognition.
8.10.1 Guardianship by Agreement
8.10.2 Guardianship by Court Order
8.10.5 Recognition of
surrogacy/donor agreements
8.10.6 A final note on these
options.
9. Taxation, Social Welfare and
Immigration
9.1 Taxation and Social Welfare
9.1.1 What rights are likely to be
conferred?
9.1.2 What Social Welfare reforms
are likely?
9.3 What is the current position on
immigration and same-sex couples?
9.3.1. We are both EU Nationals.
9.3.2 I’m Irish and my same-sex
partner is from Canada.
9.3.3 I’m an EU national and my
same-sex partner is Russian.
9.4 What will be the immigration status of civil partners?
9.4.1 Civil Partnerships and EU
Law: Council Directive 2004/38/EC.
9.4.2 Recognition of same-sex couples who are not civil partners.
10. What other improvements can be
made to the Bill?
10.1 The Definition of a ‘Family’
10.4.1 Definitions in Parts 5 and
6.
10.6 Qualified cohabitants: definition and matters of succession
10.7 Dissolution of a Civil Partnership
10.8 Application of variation clause to Property Adjustment Orders.
10.9 Third-party rights under
Contracts (including Contracts of Insurance)
10.10 Separate Legal Personality of
Civil Partners
10.11 Judicial Separation and Civil
Partners
10.11.1 What are the grounds for
Judicial Separation?
10.11.2 Should judicial separation
be extended to civil partners?
10.12 S.59E and Fees for Civil
Partnership Celebrations.
10.13 Creation of a joint tenancy.
10.16 Other miscellaneous
consequential amendments
1. Introduction and Context
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Notes
This analysis is for information only. It is not intended to offer legal advice. People seeking specific legal advice are advised to consult a solicitor.
The Civil Partnership Bill 2009 is not yet law. Until such time as the Bill is signed by the President, and brought into force by the Minister for Justice, Equality and Law Reform, the measures described herein do not have the force of law.
This paper addresses the likely consequences of the Civil Partnership Bill 2009 once it is enacted into law. It addresses, furthermore, the Bill as ‘initiated’, in other words, before either Dáil or Seanad Éireann have considered its measures. Specific provisions of the Bill may be changed during the passage of the Bill through either House.
While every effort has been made to ensure the accuracy of this paper, the author disclaims any responsibility for any errors or misstatements.
Where views are expressed in this paper, they are solely those of the author, and should not necessarily be attributed to any other person or organisation.
I welcome feedback, comments and suggestions at fergus.ryan@dit.ie
1.1 Overview and Purpose of this Paper
The Civil Partnership Bill 2009 was published June 26, 2009. While it is not yet law, its implementation will make profound changes to the law as it affects same-sex couples. It will also make other significant changes to the law applying to unmarried, unregistered cohabiting couples, both of the same sex and of the opposite sex (though these reforms will be more limited than those applying to civil partners).[1]
The provisions of the Civil Partnership Bill 2009 are significant and extensive, particularly when compared to the current state of Irish Family Law. Arguably, the Bill represents the most far-reaching reform of family law in a generation.
The Bill proposes to reshape considerably the landscape of Irish family law. Irish family law as currently constituted is significantly out-of-step with the reality of family life in modern Ireland. In particular, the current law makes minimal provision for the increasing number of families not based on the institution of marriage, and makes next to no provision for families led by same-sex couples.
The provisions of the Bill are complex and intricate. The Bill as initiated is 118 pages long, and contains 206 separate sections and a detailed Schedule with five separate parts. The Bill, moreover, seeks to amend over 130 separate (and often complex) pieces of legislation that confer rights or place obligations on spouses. The broad effect of these amendments is to provide equivalent protection for civil partners, and to a lesser extent to provide for cohabitants.
This paper aims to clarify the main points of the legislation, addressing the rights, duties, immunities and powers of those who enter into a civil partnership. It addresses, in particular, the legal consequences of civil partnership. It also, separately, deals with the consequences for cohabitants who are not eligible for, or choose not to enter into a civil partnership.
1.2 When will this Bill become law?
Go to top of pageA Bill is a proposal for legislation. It may be introduced in either Dáil Éireann or Seanad Éireann, the two Houses of the Oireachtas (National Parliament). Any member of the Oireachtas may introduce a Bill. In the specific case of the Civil Partnership Bill 2009, the Bill has been introduced by the Minister for Justice, Equality and Law Reform, a member of the Government.
Until a Bill is passed by both Houses of the Oireachtas[2] and signed by the President, it remains a proposal for legislation, and does not have legal effect. Once the President signs the Bill, the Bill comes into force on such day or days as will be designated by the Minister for Justice, Equality and Law Reform. It is possible that different provisions in the Bill will come into force on different dates. Some delay may be necessary in order to allow various state agencies (such as the Civil Registration Office and the Courts Service) to put in place measures to facilitate the celebration and recognition of civil partnerships, as well as civil partnership dissolutions.
While a Bill can take several months and sometimes years to pass through both Houses of the Oireachtas, the Government has indicated that it hopes the Bill will be tabled in the Autumn of 2009, and that it will be passed by December 2009.
It is worth bearing in mind that the Bill is based on a detailed Scheme published in June 2008. Some considerable work has already been undertaken in drawing up the original Scheme for the Bill and in converting the Scheme into a Bill over the course of the intervening year. This being the case, it is evident that the Bill has been well prepared for a relatively prompt passage through the Oireachtas, though clearly this will depend on the extent to which the Government prioritises the Bill.
1.3. Broadly, what does the Bill propose?
Go to top of pageThe Bill proposes the introduction of two separate schemes:
(a) A civil partnership registration scheme confined to same-sex couples
(b) A ‘presumptive’[3] cohabitation scheme for unmarried, unregistered cohabitants, whether of the same sex or the opposite sex (provided they are not close relatives).
These two schemes are quite distinct and should not be confused. The first applies only to same-sex couples who register their civil partnership under the Bill. By contrast, the second applies to unregistered, unmarried couples, both of the same sex and of the opposite sex. Both schemes, however, share an important feature: the parties must not otherwise be closely related to each other. Brothers and sisters, for instance, or uncles and nieces cannot become either civil partners or cohabitants under the legislation.
Civil partnership, therefore, is entirely separate from the cohabitation scheme also proposed by the 2009 Bill. While civil partnership applies only to people of the same sex (who are not close relatives) who register their relationship, the cohabitation scheme introduced in Part 15 of the Bill applies to all cohabitants whether of the same sex or of the opposite sex (provided they are not already married to each other or registered as each other’s civil partners, and provided they are not close relatives).
While the first
of these schemes – civil partnership itself – is the more significant in terms
of the rights and obligations conferred, potentially it is the second
‘presumptive scheme’ that will impact on the greater number of people. The 2006
census estimated that there are over 120,000 cohabiting couples in the State,
about one-third of whom have dependent children residing with them. Thus while the Bill has profound
implications for same-sex couples who choose to enter into a civil partnership,
it is also of importance to a significant constituency of families not based on
marriage.
1.4 Generally, what is the current state of the law as it applies to unmarried and same-sex couples?
Go to top of pageAs the law currently stands (i.e. in the absence of civil partnerships and cohabitant recognition proposed in this Bill) couples who are not married to each other have minimal rights, privileges and obligations. This remains the case regardless of the length of their relationship. Put at its simplest, a couple who are not married to each other are largely treated as strangers in law. In fact, the legal rights and obligations of a non-marital couple differ only marginally from those that would be conferred on flatmates not cohabiting in an intimate relationship.
Thus, at the moment, legal recognition of non-marital relationships is largely non-existent. Although some specific rights and entitlements have been extended to unmarried couples, these entitlements are confined to very specific and limited areas such as domestic violence and wrongful death. Even where such reforms have been enacted in favour of non-marital couples, they have often been worded with the intention of extending such rights and obligations only to opposite-sex couples, thus apparently excluding same-sex couples. (This is the case, for instance, with the right to succeed to a residential tenancy, which is extended to opposite-sex but not same-sex couples).[4]
This lack of legal recognition is felt most acutely in the most stressful of times – when a relationship breaks down and/or when a partner is incapacitated or dies. In such cases, unmarried partners currently enjoy little or no legal protection. For instance, as the law currently stands, if an unmarried partner dies without making a will, the survivor can make no claim against the deceased’s estate. If their relationship breaks down, the partners cannot seek maintenance from each other (though a child can always seek maintenance against a parent, even if his parents are not married to each other). A person who has lived in the house of a partner without making any contributions towards its purchase will have no claims against the property, and will not be able to block any sale, mortgage or lease in respect of the property.
1.5 Generally, how will the introduction of the Bill change the law for civil partners?
Go to top of pageThe proposals in this Bill will, if enacted, change the law profoundly. Civil partners will be entitled to seek maintenance (financial support) from each other during the currency of their relationship. As is the case with married couples, the shared home of the couple cannot ordinarily be sold, leased or mortgaged by one civil partner without the consent of the other civil partner. On the legal dissolution of a civil partnership, the former civil partners will be entitled to seek orders relating (amongst other things) to financial support and the ownership of property, as well as various important remedies relating to succession and pension entitlements. On the death of either partner, the surviving civil partner will be entitled to claim from the estate of the deceased in a manner similar to the entitlements enjoyed by widows and widowers.
Civil partners will be entitled to seek relief for domestic violence and wrongful death of a civil partner in the same manner as spouses. An employer as well as a provider of goods or services will not be permitted to discriminate against a person because they are or were a civil partner. For the purpose of determining eligibility for a pension, moreover, civil partners will be treated in a manner identical to the treatment of a husband and wife of the holder of pension entitlements.
For the purpose of determining whether a person has a conflict of interest or must disclose certain financial or other interests, a person with a civil partner will be treated the same as a married person. Similarly, the Bill amends over 130 pieces of legislation in such a way as to require civil partners to be treated, for the purposes of those Acts in a manner identical to spouses.
1.6 How does civil partnership differ from marriage?
Go to top of pageThe rights and obligations conferred by civil partnership are in most cases the same as or very similar to those rights and obligations that apply to married couples. Indeed, the Civil Partnership Bill is modelled on (and is in most cases identical to) several pieces of legislation that apply only to married couples, for instance, legislation relating to maintenance, succession, the family home and divorce.
Some critical differences do, however, arise. These relate mainly to the relationship between a civil partner and her partner’s children, a relationship which is not generally acknowledged for the purpose of the Bill. There are some key differences also in the grounds for dissolution and annulment of a civil partnership when compared with those grounds applying to marriage. These matters are discussed in further detail below.
1.7 Generally, how will the introduction of the Bill change the law for cohabitants?
Go to top of pageThe rights and obligations of unregistered cohabitants, though more limited than those of civil partners, are significant. A ‘cohabitant’ is a person living in an “intimate and committed relationship” with a person who is not that person’s spouse or civil partner. Cohabitants may be of the same sex as each other or of the opposite sex, though they may not be close relatives. Cohabitants generally will be recognised for a variety of purposes, including domestic violence legislation, wrongful death and succession to residential tenancies.
Special rules apply to couples who are deemed to be ‘qualified cohabitants’, that is, where they have lived together for at least three years, or two years if they have had a child or children together. A qualified cohabitant who is financially dependent on his or her cohabiting partner may seek a variety of remedies if their relationship ends or if one of the partners dies. These include orders for compensatory maintenance (financial support), for property adjustment and for the adjustment of pension entitlements. A qualified cohabitant may also seek provision from the estate of a deceased partner, provided certain conditions are met. The right of a qualified cohabitant to seek maintenance or a property or pension adjustment order may be waived (given up) by written agreement between the cohabitants.
1.8 Conclusion
Go to top of pageFull equality undoubtedly demands equal access to civil marriage. This Bill, however, represents a robust and comprehensive step in the right direction. Both practically and symbolically, these measures will (if implemented) represent real and substantial progress in the recognition and protection of non-traditional families. This is not to underestimate, however, the drawbacks in the Bill, most notably the apparent reluctance to tackle the rights and responsibilities of same-sex couples who co-parent children. While some improvements could certainly made (and have been suggested here and elsewhere), the Bill is undoubtedly significant and substantial.
2. Eligibility for Civil Partnership
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2.1 Am I eligible for Civil Partnership?
Go to top of pageIn order to
enter into a Civil Partnership, the two parties must be aged 18 or over. They
must be of the same sex, though it is not necessary that the parties be gay or
bisexual. Neither person may be a party to an already existing civil
partnership or marriage. Furthermore,
the parties may not be closely related.
For instance, a man may not enter into a civil partnership with his
father, uncle or grandfather (amongst others).
With the exception of the requirements as to the sex of the parties,
these requirements are largely identical to those applicable in the case of
marriage.
2.2 We are opposite-sex partners. Can we enter into a civil partnership in preference to marriage?
Go to top of pageIt is important to note that civil partnership is confined to couples of the same sex. While it is not necessary that the civil partners be gay or bisexual, the partners must be of the same sex. Opposite sex couples may, of course, marry (provided they are not already closely related or in another subsisting marriage or civil partnership with other people). They may also be recognised as cohabitants and qualified cohabitants for the purpose of Part 15 of the Bill.
2.3. I am a transgendered person. Can I enter into a civil partnership?
Go to top of pageA person who is transgendered, whether pre-operative or post-operative, may enter into a civil partnership with a person of the same legal sex. Correspondingly, a transgendered person may marry a person of the opposite legal sex.
‘Legal sex’ for this purpose generally is taken to mean the sex of the person as designated at the time of that person’s birth. Unfortunately, as Irish law currently stands, a person’s transgendered status is not yet recognised in law. Effectively, the law looks to the biological sex of the person when they were born. If a person when born had the anatomical, chromosomal and gonadal (i.e. testes or ovaries) features of one sex, a subsequent reassignment of anatomical gender will not currently be recognised as legally changing the gender of the person for the purpose of marriage or civil partnership.
This non-recognition has been deemed by the Irish High Court to be in breach of the European Convention on Human Rights.[5] Nonetheless, while the State now recognises gender reassignment for certain purposes (including the issuing of passports[6]), it is not recognised for the purpose of determining eligibility to marry. While the Bill is silent on this point, it is likely that a person will currently be recognised as being of the anatomical sex to which they were born.
This means, for instance, that a transgendered person who has transitioned from male to female (‘MTF’) may marry a person born biologically a female. Similarly, a person who has anatomically transitioned from male to female, will be able to enter into a civil partnership (but not a marriage) with a person born biologically male. In both cases, the anatomical transition is not legally recognised, and the person remains of the legal sex to which they were born.
The Bill does not address the consequences of an anatomical reassignment subsequent to entering into civil partnership. It is likely, though not certain, that such reassignment would not invalidate the civil partnership. This issue and others strengthen the case for the speedy adoption of comprehensive legislation providing for gender recognition, as has occurred in the United Kingdom (and indeed in virtually every other Council of Europe state).
2.4 Is it possible for close relatives or siblings to enter into a civil partnership?
Go to top of pageAs with marriage, it is not possible for people who are already closely related to each other within prescribed ‘prohibited degrees’ to enter into a civil partnership. For instance, a woman may not enter into a civil partnership with her grandmother, mother, sister, aunt or grandaunt, niece or grandniece, daughter or granddaughter. (Similar provisions apply to men.) Relationships in the half-blood (e.g. where the parties share one parent in common rather than two) are treated in the same manner as full-blood relationships (where the parties share both parents in common). Likewise, adopted children are treated in much the same way as biological children, such that a man cannot enter into a civil partnership with his adoptive father.[7] As with marriage, however, there appear to be no restrictions on civil partnership where one of the parties was a foster-child of the other party, or of the other party’s biological parents. Nor are first cousins prevented from entering into either a marriage or a civil partnership with each other.
The prohibited degrees for civil partnership are in most (though not all) cases similar to those applying to married couples. While a person may marry a grandparent’s brother or sister, or a grandnephew or niece, a civil partnership is not possible where such relationships exist. Both the Law Reform Commission[8] and the Inter-Departmental Committee on the Reform of Marriage Law[9] have recommended that a person should not be allowed to marry a grandparent’s brother or sister, a grandnephew or a grandniece, though as the law stands at the moment there is no legal prohibition on such marriages. It is unclear why this restriction should be extended to civil partnerships and not to marriages.
2.4.1 Can I enter into a civil partnership with my former wife’s father?
Go to top of pageIt is not immediately clear from the legislation whether relationships between people formed through prior marriages (or indeed prior civil partnerships) are also within the prohibited degrees for the purposes of civil partnership. The analogous rules relating to marriage prohibit marriage not only between parties who are related by blood (these are called relationships of ‘consanguinity’) but also between parties who are related by a prior marriage (these are called relationships of ‘affinity’). The Marriage Act 1835, section 2, renders a marriage void when it is contracted between persons within both the prohibited degrees of consanguinity and those based on affinity.[10] Thus, for instance, a man may not marry his former wife’s daughter or mother, (though he may marry her sister, even after divorce[11]).
The Civil Partnership Bill is silent on this point. Absent a specific provision, it is very unlikely that a prior civil partnership would create a relationship of affinity so as to prevent a subsequent marriage. Where the parties are already related through marriage, on the other hand, the position is less clear, though it seems that people already related by marriage are not prevented from entering into a civil partnership. On its face, the table of prohibited relationships for civil partnership makes no mention of people related through marriage. This contrasts with similar tables for marriage that do specifically make such reference.[12] Likewise, the Bill makes no reference to legislation that has amended the prohibited degrees of marriage as they relate to affinity (e.g. allowing a man to marry his deceased brother’s wife). This appears to suggest that the drafters of the Bill did not intend to transpose into civil partnership law the rules of affinity relating to marriage.
It is arguable that the rationale for preventing the marriage of people related through marriage (namely the avoidance of intra-familial discord), applies equally to civil partnership and people related through civil partnership. That said, both the Law Reform Commission[13] and the Law Reform Committee of the Law Society of Ireland[14] have recommended that restrictions on marriage founded on affinity should be abolished. Additionally, in the United Kingdom many of the restrictions on marriage between people already related through another marriage have been abolished (though restrictions still apply in the UK where the parties have previously lived together and one party has been in loco parentis in respect of the other party.)
In other words, the general trend is to move away from the prohibitions based on affinity. In this regard, the Civil Partnerships Bill may be more in step with current best practice than the law relating to marriage.
2.5 Can I be a party to marriage and a civil partnership at the same time?
Go to top of pageA person who is already married to one person cannot simultaneously enter into a civil partnership with another person. Likewise, a person who is a civil partner cannot marry or enter into another civil partnership with a third party. A person may, however, enter into a new civil partnership or marriage where a previous marriage or civil partnership has previously been annulled or dissolved by a court.
2.6. Is there a residence
requirement for civil partnership?
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There is currently, in the Bill, no residence requirement for civil partnership. Provided the parties meet the relevant notice requirements (see 3.1 below), it is not necessary that they live in Ireland or any part of Ireland. In particular, there is nothing preventing holidaymakers from coming to Ireland in order to contract a civil partnership (though to fulfil the notice requirements, either a long holiday or multiple visits will be required).
There is, however, a proposal in the Immigration, Residence and Protection Bill 2008 seeking to place restrictions on the marriage of certain non-EU nationals in Ireland. Section 126 of the Immigration Bill would prevent a marriage from being validly contracted in such a case unless (a) three months’ notice of the marriage has been given to the Minister for Justice, Equality and Law Reform and (b) the non-EU national has received ministerial permission to enter Ireland in order to marry, or otherwise holds a residence permission.[15] The General Scheme of the Civil Partnership Bill suggested that these restrictions would apply also to civil partnerships, though there is no mention of this matter in the Civil Partnership Bill itself.
3. Procedures for entering into a Civil Partnership
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The procedures for entering into a civil partnership are substantially the same as those that apply to marriage. The main difference is that while either a marriage registrar or a religious minister may ‘solemnise’ a marriage, civil partnerships may only be celebrated in the presence of a civil registrar, namely a registrar of marriages and civil partnerships.
3.1 What must we do prior to entering a civil partnership?
Go to top of pageFirst, the couple must give at least three months’ written notice of their intention to enter into a civil partnership. Both intending civil partners must deliver this notice, in person, to any registrar of marriages and civil partnerships. Effectively, this is the same official who celebrates civil marriages. Furthermore, at least five days prior to the ceremony, the intending civil partners must attend at the office of the same registrar and make a declaration to the effect that there is no legal impediment to the registration of their civil partnership. These notice requirements are identical to those that apply to parties wishing to marry. Failure to give advance notice, as required, will render the civil partnership invalid and of no legal effect.
In exceptional cases, the Circuit or High Court can lift the requirement for three months’ notice, allowing the parties to enter into a civil partnership without giving three months’ notice. As with marriage, the notice requirement may only be waived (i.e. lifted) where there are “serious reasons for the exemption” and where the court considers that the exemption is in the interests of the intending couple. Such reasons may include the fact that either party or a close relative is seriously ill, and may not survive three months, or where a party is due to be posted abroad for an extended period of time, e.g. as a UN peacekeeper.
Once these preliminaries are completed, the registrar will issue a ‘civil partnership registration form’. This is valid for six months from the date of issue.
3.2 Once notice is given, and we receive our civil partnership registration form, what must we do in order to give effect to the civil partnership?
Go to top of pageIn order for the civil partnership to come into effect, the parties must sign the registration form and make certain declarations. Ordinarily this must occur in public, before a registrar and at least two witnesses. In order for the civil partnership to be formalised, the parties must sign the civil partnership registration form in the presence of the registrar and two witnesses aged 18 or over. The parties must also each make a declaration stating that:
a. He or she knows of no impediment to the civil partnership registration,
b. He or she intends to live with and support his or her partner, and
c. That he or she accepts the other partner as a civil partner in accordance with the law.
These declarations are similar to those made by married persons, although the second declaration ((b) above) is novel and is not currently required of marrying couples. Little turns on this distinction – married couples are in law required to support each other, and unless legally separated are generally required to cohabit.[16]
It is not immediately clear from the legislation whether the declarations must be made orally, or whether the parties may make the declarations in writing, by signing a document to the effect that they accept the declarations. Section 59D(5) appears to imply that the oral reading of declarations is optional, though the point is unclear.
3.3 Will there be a ceremony?
Go to top of pageThe registration form must be signed and the declarations must be made in a public place, in the presence of the registrar and at least two witnesses. Otherwise, it is not strictly necessary that there be any formal ceremony. In theory, the parties could simply sign the register, make the required declarations and do nothing else. It is necessary, however, that the parties sign the register and make the declarations in public, usually at a registry office though other approved venues may be used. The only exception to the requirement of a public registration is where one of the parties is too ill to attend a public venue.
The Bill does, however, make provision for a ceremony, if the parties so choose. The Bill indicates that the parties may, before signing the registration form, take part in a public ceremony (though this is optional). Such a ceremony would include the parties orally making the above-mentioned declarations. The form of ceremony must be approved by an tArd-Chláraitheoir (the Head of the Civil Registration Service), and if it takes place, must take place in public in the presence of the registrar and the parties’ two witnesses.
3.4 Where does the ceremony take place?
Go to top of pageOrdinarily, the ceremony must take place in public (though an exception may be made if one of the parties is too ill to do so). While the ceremony may take place in a marriage registry office, the parties are free to choose alternative venues, subject to the approval of the Health Service Executive. It is likely that such venues will be the same as or similar to those which are approved for the celebration of a marriage. (Though see the point below regarding churches as venues).
3.5 Can we celebrate our civil partnership in a church?
Go to top of pageA civil partnership may only be celebrated in the presence of a civil registrar. There is no provision in the Bill for registration in the presence of a religious minister.
It is important to note that the Bill makes provision only for a civil ceremony. While the ceremony may take place in any approved venue, it is unclear whether a church would be approved for such a purpose. It is likely that the State would be reluctant to approve religious venues, given the civil nature of the ceremony. It is unlikely that it would be considered appropriate for a civil ceremony to be celebrated in a religious venue. There is, however, nothing in the Bill or in law precluding a separate church ceremony or blessing for the partners (though, likewise, there is nothing in the Bill that would require a church to facilitate such a ceremony).
3.6 When can the ceremony take place?
Go to top of pageAs discussed
above, at least three months’ notice must be given to the civil registrar. Additionally, the ceremony must take place
within six months of the issuing of the civil partnership registration form.
Otherwise, there are no specified restrictions on the timing of the ceremony,
though this must be agreed in advance with the registrar.
3.7 Can someone (e.g. my mother or ex-boyfriend) object to the civil partnership?
Go to top of pageAny person may lodge a written objection to a pending civil partnership, though only on the ground that there is a legal impediment to the registration, and not otherwise. In other words, the objection must be based on a claim that the civil partnership would not be legally valid because the legal requirements for civil partnership have not been met. The objection must be raised before the civil partnership is contracted.
Where an objection is lodged, An tArd-Chláraitheoir (the Head of the Civil Registration Service) will investigate the objection. Pending his or her determination, the civil partnership cannot proceed. If it is discovered that there is a legal impediment, the civil partnership cannot proceed. If, on the other hand, the objection is not upheld, the civil partnership can proceed as normal.
In all cases, the intending civil partners have the right to be notified of the objection. An objection that is upheld may be appealed to the Circuit Court.
3.8 My partner does not speak English. Can we enter into a civil partnership?
Go to top of pageProvision is made for the translation of the registration documents and declarations so that an intending civil partner who does not speak English will be able to understand these documents and declarations.
3.9 Can we keep our civil partnership a secret?
Go to top of pageWhile provision is made for a civil partnership to be registered otherwise than in public, this may only occur with the approval of an tArd-Chláraitheoir (the General Registrar) or of a superintendent registrar for marriages and only where a party’s illness prevents the celebration from taking place in public. The civil partnership will also be recorded in an official register to which the State and the public will ordinarily have access. The Bill also proposes that notice of intention to enter into a civil partnership may be publicised in a prescribed manner. (Provision is made, however, to ensure that the PPS numbers of the partners are not made available to the public.)
Symbolically, the celebration of a civil partnership in public is significant. Given the traditional culture of silence and scorn in relation to issues of homosexuality and bisexuality, and the closeted situation of many gay and bisexual people, now and in the past, it is clearly of great symbolic importance that ceremonies of civil partnership are publicly accessible and publicly acknowledged.
3.10 My same-sex partner and I got married in Spain. Will our marriage be recognised in Ireland?
Go to top of pageIt is likely that a Spanish same-sex marriage will be recognised as a civil partnership in Ireland. The married couple will have the same legal rights and obligations as Irish civil partners. Pending the recognition of same-sex marriage in Ireland, however, it is unlikely that the couple would be recognised as legally married in Ireland. The High Court in Zappone and Gilligan v. Revenue Commissioners[17] ruled that a foreign same-sex marriage would not be recognised as a marriage in Ireland, though this decision is currently on appeal to the Supreme Court.
Section 5 of the Bill allows the Minister for Justice, Equality and Law Reform to designate certain classes of legal relationships between same-sex couples recognised by a foreign state, requiring that the parties to such relationships be treated as civil partners under Irish law. It is for the Minister to determine precisely what those classes of legal relationships will be. That said, the Bill requires that any recognised class of legal relationship must:
(a) Be exclusive
(b) Be permanent (unless dissolved by a court)
(c) Be between persons who are not closely related (i.e. within the prohibited degrees discussed above at 2.4)
(d) Be registered in line with the legal requirements set out by the law of the state where the legal relationship is contracted, and
(e) Confer rights and obligations that are sufficiently similar to those conferred on civil partners in Ireland, such that the relationship would be treated comparably to an Irish civil partnership.
Considering these criteria, it is more than likely that a same-sex marriage
celebrated (for instance) in Spain, the Netherlands, Belgium, Norway, Sweden,
Canada, Iowa, Massachusetts, Connecticut, Vermont or South Africa will be
designated as conferring on the married couple the rights of civil partners.
Similarly, it is more than likely that a UK civil partnership will be
recognised.
It is important to note that no class of legal relationship will automatically be recognised. Formal legal recognition will depend instead on the passing by the Minister of secondary legislation in the form of a statutory instrument designating the classes of legal relationship to be recognised. It is also important to note that even where the foreign legal relationship is not confined to same-sex couples, the parties will only be treated as civil partners in Ireland if they are of the same sex.
3.10.1 Which classes of foreign legal relationships are likely to be recognised?
Go to top of pageIn the United Kingdom, similar legislative provisions allow for the recognition of overseas relationships. Currently, the following classes of legal relationship are explicitly recognised as having the same effect as a civil partnership:
Fig. 1, Schedule 20, Civil Partnership Act
2004 (UK) (as amended)
|
Andorra |
Uniό Estable de Parella |
|
Australia: Tasmania |
Significant Relationship |
|
Belgium |
Cohabitation Légale (statutory cohabitation) |
|
Belgium |
Marriage |
|
Canada |
Marriage |
|
Canada: Nova Scotia |
Domestic Partnership |
|
Canada: Quebec |
Civil Union |
|
Denmark |
Registreret Partnerskab (registered
partnership) |
|
Finland |
Rekisteröity Parisuhde (registered
partnership) |
|
France |
Pacte Civile de Solidarité (PACS/civil
solidarity pact) |
|
Germany |
Lebenspartnerschaft (life partnership) |
|
Iceland |
Staðfesta Samvist (confirmed cohabitation) |
|
Luxembourg |
Partenariat Enregistré or Eingetragene Partnerschaft |
|
Netherlands |
Geregistreerde Partnerschap (registered
partnership) |
|
Netherlands |
Marriage |
|
New Zealand |
Civil Union |
|
Norway |
Registrert Partnerskap (registered
partnership) |
|
Spain |
Marriage |
|
Sweden |
Registrerat Partnerskap (registered
partnership) |
|
USA: California |
Domestic Partnership |
|
USA: Connecticut |
Civil Union |
|
USA: Maine |
Domestic Partnership |
|
USA: Massachusetts |
Marriage |
|
USA: New Jersey |
Domestic Partnership |
|
USA: Vermont |
Civil Union |
Even if they are not explicitly recognised, other legal relationships may be recognised in UK law, on a case-by-case basis, provided they meet the general conditions set out in Part 5, Chapter 2 of the Civil Partnership Act 2004.[18] Since the latest amendment of Schedule 20 (the list set out above) same-sex civil marriage has been introduced in Connecticut, Iowa, Vermont, Norway, Sweden and South Africa, while various civil partnership/civil union registration schemes have been introduced in (for instance) the Czech Republic, Slovenia, Switzerland, and Uruguay, as well as several other US States and Australian territories.
Schedule 20 of the UK Act (as amended) may be useful as a guide to the type of legal relationship that may also be recognised in Ireland. Nonetheless, UK law provides no guarantee as to the classes of legal relationship that will be recognised in Ireland. It is also important to note that UK law allows a non-designated relationship (i.e. a class of legal relationship that has not been specifically recognised in legislation) to be treated as a civil partnership regardless of the lack of formal designation (though conditions do apply). In Ireland, by contrast, it appears that a relationship will only be treated as a civil partnership if it has been explicitly designated for recognition in a statutory instrument enacted by the Minister. It is arguable that the extraordinary pace of change worldwide militates in favour of a general provision for recognition of civil partnerships and marriage, as is the case in the UK.
3.10.2 My same-sex partner and I entered into a civil partnership in Denmark in 2003. Will my civil partnership be recognised as valid with effect from 2003?
Go to top of pageA foreign legal relationship will only be recognised with effect from (at the earliest) 21 days after the Minister designates the class of legal relationship in question. If the parties enter into a legal relationship later than this date, their relationship will only be recognised from the date their actual legal relationship is contracted.
Therefore, even if the parties entered into a Danish civil partnership in 2003, it will only be recognised for the purposes of Irish law from a date 21 days after the Minister recognises Danish civil partnerships generally i.e. prospectively and not retrospectively.
It does not appear to be possible to give retrospective effect to the foreign registration. It will only be treated as a civil partnership with effect from, at the earliest, 21 days after the Ministerial order providing for recognition. For instance, a couple who enter into a civil partnership in Northern Ireland in 2005 will only be recognised as civil partners with effect from the a date 21 days after the Minister provides for recognition of UK civil partnerships.
3.10.3 I entered into a Danish civil partnership in 2002, but my civil partner sadly passed away in 2004. Am I entitled to be treated as a civil partner for the purpose of, say, the widow’s pension?
Go to top of pageUnfortunately, the Bill is unclear on this point. Section 5 appears to indicate that a person who has entered into a civil partnership abroad will only be regarded as a civil partner prospectively and not retrospectively. This means that, looking at the example above, it would not be possible to claim that the parties were legally entitled to be treated as civil partner at the specific time of death.
This may prove problematic in a number of cases. If a piece of legislation is amended to confer a right or entitlement on a surviving civil partner, it is possible that, absent clarification, that entitlement will only be conferred where the person would have been recognised as a civil partner or former civil partner at the time of death.
The Social Welfare (Consolidation) Act 2005, for instance, does not define a widow or widower except to say that these terms include divorced spouses as well as those still married at the time of the spouse’s death. Thus, it is unclear whether that Act requires that the person be recognised as married person or divorced at the time of death. The issue simply does not arise, though presumably if the marriage had been void, the survivor would probably not be entitled to any pension.
If the widow’s/widower’s pension and like entitlements are extended to civil partners, it would thus be important to define a surviving civil partner in such a way as to ensure that a person whose legal relationship would have been recognised had both partners survived, will also be entitled to claim the pension and other entitlements. If such provision is made, however, it is unclear whether the entitlement would be backdated. In other words, would the surviving civil partner be entitled to relief from the date of death or only from the date on which the class of foreign legal partnership is first recognised by the Minister? The greater likelihood is that the effect of any such recognition would be prospective only.
3.11 If I enter into a civil partnership in Ireland, when does it take effect?
Go to top of pageA civil partnership celebrated in Ireland is deemed to take effect from the point in time when the parties have made the required declarations and the parties, the registrar and their witnesses have signed the civil partnership registration form. Once these formalities have been complied with, the parties will be deemed to have all the rights and obligations of civil partnership.
This is slightly different from the point at which a marriage takes effect, though the difference is arguably of theoretical relevance only. The parties to a marriage are deemed to be married to each other when both of them have made the required declaration in the presence of each other, the registered solemniser and the two witnesses that they accept each other as husband and wife.
4. The rights and obligations of civil partners.
Go to top of page
Once a civil partnership is celebrated, the civil partners will enjoy a substantial range of legal rights and entitlements. It is important in this regard to stress that the civil partners will also have significant legal obligations to each other that heretofore have not been recognised in Irish law. It would be wise to make oneself aware of these right and obligations prior to entering into a civil partnership, as they can have significant implications for the civil partners, particularly in cases of death and relationship breakdown.
4.1 The Shared Home
Go to top of pageThe dwelling in which civil partners reside is termed the ‘shared home’. The Civil Partnership Bill will prevent a civil partner from agreeing a unilateral conveyance (e.g. a sale, lease or mortgage) of the shared home without the prior written consent of the other civil partner.
4.1.1 What kind of dwelling qualifies as a shared home?
Go to top of pageThe definition of a ‘dwelling’ for this purpose includes a building or part of a building (e.g. an apartment). Also included are vehicles such as a mobile home, as well as a vessel such as a barge or a boat, in which the civil partners cohabit. Notably, a dwelling will be treated as a shared home if the civil partner who is not a party to the relevant conveyance formerly resided in the property before leaving the other civil partner. In other words, if the civil partners are separated, the dwelling will be a shared home if the civil partner whose consent is required lived there at some point in the past.
The definition of a shared home is also deemed to embrace a garden or yard, if any, attached to the home. The definition also includes any other land occupied with the building, that is subsidiary or ancillary to it and required for its amenity or convenience. Land used primarily for commercial purposes, however, such as a farm or a business premises, will generally not be deemed part of the shared home.
4.1.2 What happens if my civil partner sells the shared home against my wishes?
Go to top of pageThe measures relating to a shared home mirror those of the Family Home Protection Act 1976, which applies to the family home of spouses. Basically, a civil partner cannot sell, lease, mortgage or otherwise convey a dwelling (or a part of a dwelling) that is his and his partner’s shared home, without obtaining the prior written consent of his civil partner. Any conveyance of a part or all of the shared home made without the prior written consent of the other civil partner will generally be void, i.e. of no legal effect. These rules apply whether or not the civil partner who is not involved in the conveyance of the shared home has a legal or beneficial interest in that property. In other words, the party whose consent is required does not need to own the property, provided he or she lives there or has lived there in the past.
4.1.3 Is my consent required in all cases?
Go to top of pageConsent will not be required, however, where the transaction is a joint transaction entered into by both civil partners (e.g. where they are joint owners). Additionally, a court will be able to dispense with consent where it is established that consent is being unreasonably withheld. Before it does so, however, the court will have to be satisfied that suitable alternative accommodation is available to the civil partner whose consent is normally required.
4.1.4 I have a child. Will her needs be considered in determining whether to dispense with consent?
Go to top of pageAs discussed above, a civil partner cannot dispose of an interest in the shared home without the consent of the other civil partner. A court may dispense with such consent. In determining whether to dispense with the consent of the non-disposing partner for this purpose, the court is required to have regard to “the respective needs and resources of the civil partners”. Where alternative accommodation is offered, the court may have regard to the suitability of that accommodation having regard to the respective degrees of security of tenure in the shared home and in the alternative accommodation.
By contrast with the Family Home Protection Act 1976, however, no reference is made to the needs of any children of the non-disposing partner, or indeed of either civil partner. Theoretically this means, for instance, that the court might deem alternative accommodation available to the non-disposing partner as suitable for the civil partner alone even if it is not suitable for the accommodation of a parent with children. In other words, the section theoretically permits the court to make a determination independent of the context of parenthood and child-rearing responsibilities.
The omission of any express mention of the children of either or both parties may mean that the court’s determination could technically ignore the presence of these children. Theoretically, this could mean that a court could make a determination to dispense with the consent of the non-disposing partner where alternative accommodation is suitable for a civil partner living on her own, but not for a civil partner with children. For instance, a one-bedroom apartment in a city-centre location may be suitable as alternative accommodation for a childless civil partner, but may not be suitable for a civil partner rearing young children.
Arguably, when assessing the needs of the non-disposing civil partner, a pragmatic court should take into account the context in which that civil partner finds herself. This would include whether he or she is raising children. Nonetheless, the Bill as framed ring-fences the civil partners such that considerations relating to persons other than the partners technically do not feature.
A pragmatic interpretation of ‘needs’ of each civil partner could, of course, include an assessment of the context of the partner’s living arrangements, including that he or she is raising children. That said, the Family Home Protection Act 1976 makes explicit mention of the requirement to consider the needs of children in this context. The omission of a similar provision in relation to a shared home in the Civil Partnership Bill will possibly result in serious detriment to children being reared by civil partners.
4.1.5 My civil partner has removed all of the furniture from our house and refuses to pay the bills. What can I do?
Go to top of pageIt will be possible for a court to restrain a civil partner who is behaving in a manner likely to cause the loss of the home, or to make it uninhabitable. This may arise, for instance, where a civil partner refuses to pay the mortgage or utility bills. Where a civil partner has behaved in such a manner, a court may take action to restrain the partner in order to protect the shared home. In extreme cases, such action may include transferring the property to the other civil partner. A court may also take action to prevent the disposal of household goods, where such disposal will render the shared home substantially uninhabitable. For instance, a civil partner may be restrained from removing furniture, bedding, washing machines, cookers and other white goods from a home, if this removal makes the shared home uninhabitable.
4.2 Maintenance
Go to top of page4.2.1 What is Maintenance?
Go to top of page‘Maintenance’ is another word for financial support for a spouse,[19] civil partner or biological child. Husbands and wives are generally required to support each other financially. An identical obligation will be placed on civil partners.
As the law stands at the moment, husbands and wives may be required by a court to pay a sum or sums of money to support each other financially. Likewise, a child (whether or not its parents are married to each other) is entitled to seek financial support from each of its parents until he or she reaches the age of 18 (or 23, if still in full-time education).[20]
This does not necessarily mean that a spouse or child is automatically entitled to a sum of money. It is unlikely, for instance, that a person with independent income equivalent to that of her spouse will be granted maintenance. Nonetheless, if one spouse is in need and the other spouse has sufficient resources to meet that need, it is likely that a court will order maintenance in favour of the spouse in need.
4.2.2 In what circumstances will civil partners be entitled to Maintenance?
Go to top of pageUnder the Bill, it is proposed that a similar obligation will be placed on civil partners, such that civil partners may be ordered by a court to maintain each other financially. Such an order may be made even while the couple continues to cohabit – it is not necessary that the couple have first separated.
In order to receive court-ordered maintenance, the recipient must show that his civil partner has failed to provide such sums of maintenance as the court considers proper in the circumstances. A maintenance order typically takes the form of an instruction requiring periodical payments to be made to the recipient. This means that the intended recipient will be entitled to receive sums of money at periodic intervals, e.g. once a week or month. There is no set or standard amount of maintenance. The exact amount awarded and the specific arrangements for payment will depend on the respective needs and resources of the parties.
Technically, a maintenance order is never deemed to be final or permanent. In particular, an order may subsequently be varied or discharged, in particular if the circumstances of the parties change.
4.2.3 What factors will the court consider in deciding whether I receive maintenance, and how much?
Go to top of pageIn determining whether to make a maintenance order, and how much to award, the court has to take account of the income and resources of both civil partners, as well as their individual needs. The court must also have regard to the financial and other responsibilities of both partners including each partner’s obligations to any former spouse or civil partner.
Although the legislation does not require a person to maintain the biological child of his civil partner, the court is also required to take into account the financial responsibilities of a civil partner to his or her own biological child. In other words, while the Bill does not allow a court to order a person to maintain a child who is not his or her biological child, the court is required, in setting maintenance for a civil partner, to have regard to the responsibilities of that civil partner towards his or her biological child.
4.2.4 My civil partner has been ordered to pay maintenance, but so far I’ve received nothing. What can I do?
Go to top of pageEnforcement is often a key problem in cases where maintenance is ordered. The legislation provides, however, for the ‘attachment’ of the earnings of the person against whom the order in made. This allows the court to draw the maintenance direct from the wages or salary of the person who is required to pay maintenance. It is then paid through a District Court clerk to the intended recipient. This can only happen, however, where the person required to pay maintenance is an employee and not where he or she is self-employed. An attachment of earnings order, moreover, will be made subject to a ‘protected earnings rate’ below which maintenance cannot be deducted from the maintenance payer’s salary. (This is designed to provide a minimum level of income to the maintenance payer net of maintenance.)
The Bill does not, however, provide for periodical payments to be secured, or for lump sum payments to be ordered instead of periodical maintenance. Legislation relating to married couples and children does provide such remedies. (Sections 41 and 42 of the Family Law Act 1995) These are particularly useful remedies where the maintenance debtor (the person who is required to pay maintenance) is dragging his or her feet, and not paying maintenance on time. There is clearly every good reason to extend these mechanisms to civil partners, with a view to ensuring greater compliance with maintenance orders.
4.2.5 Can we simply agree on our own maintenance arrangements?
Go to top of pageSubject to an important caveat, there is nothing in the Bill preventing two civil partners from making their own maintenance arrangements. In particular, it is reasonably common in a marital separation agreement to make provision for the maintenance of one of the spouses.
Indeed, the Bill expressly provides for the possibility of making agreed maintenance arrangements a ‘rule of court’. This allows an agreement as to maintenance to be treated as if it were a court order, thus making it easier to enforce such an agreement.[21] This would suggest that generally agreements may be made providing for maintenance to one or other civil partner.
4.2.6 Can we agree to opt out of the maintenance requirements in the Bill?
Go to top of pageIt is not possible, however, to waive or give away one’s right to seek a court order for maintenance. As is the case with married couples, a provision in any agreement between civil partners that seeks to exclude or limit the right to seek court-ordered maintenance will be void and of no legal effect. Such voidness, however, only affects the specific provision seeking to oust the right to seek court-ordered maintenance. The remainder of any such agreement will not be affected and will remain legally operative (though only to the extent that it does not attempt to exclude the right to seek a maintenance order).
4.3 Rights on the death of a partner
Go to top of pageOne of the most tragic features of the law as it currently stands is that, unless a person makes a will, their non-marital partner has no right to claim from his estate. As such, it should be the priority of every non-marital partner to make a will.
Once civil partnership is enacted, however, civil partners will enjoy automatic legal protection on the death of a partner. The rights of the surviving partner are (in the main) identical to those of a widow or widower.
4.3.1 What happens if my civil partner dies without making a will?
Go to top of pageWhere a person dies without making a will, his or her surviving civil partner will have a legal entitlement to claim a portion of the deceased’s estate.
If the deceased died without leaving any children, the surviving civil partner will be entitled to the entirety of the deceased’s estate.
If the deceased had surviving children of any age, the surviving civil partner will be entitled to two-thirds of the deceased’s estate, the remaining one-third being divided equally between the deceased’s children.[22] Nonetheless, the Bill allows a child of the deceased civil partner to apply to court seeking further provision from the estate of the deceased, even if this reduces the surviving civil partner’s share. The court may grant such provision if it believes, in all the circumstances, that it would be unjust not to do so. In making such an order, the court must have regard to the extent to which the child has been provided for during the deceased’s lifetime, the child’s age and reasonable financial requirements, the financial situation of the deceased and the deceased’s obligations towards the surviving civil partner. Regardless of the decision of the court, the child cannot receive less than the amount to which he or she would have been entitled if no court order had been made. Nor will the child be entitled to receive more than he or she would have received had the deceased died leaving neither a spouse nor civil partner.
While it appears to be envisaged that such orders would be exceptional, (they will only be made if the court considers it unjust not to do so), clearly this provision allows a court to eat into the two-thirds portion of the estate to which the civil partner is legally entitled. This provision is notable in that it only applies where a deceased person leaves a surviving civil partner and not where the deceased was married at the time of death. In other words, the child may apply where his parent was a civil partner, but not where the parent was married.
This measure clearly provides important protection to children living with civil partners, and in this regard is to be welcomed in its own right. It is possible that the measure is designed to ensure that children of formerly married parents are not unfairly prejudiced by the fact that one of the parents subsequently enters into a civil partnership. Nonetheless, it is unclear why the law is not being amended in a similar manner so as to offer a similar facility to children in respect of the estate of their formerly married parents where one of the parents remarries. The measure appears, in other words, to place the children of civil partners at an advantage relative to the children of married couples.
4.3.2 My civil partner has made a will but has left me nothing but his CD collection. What can I do?
Go to top of pageEven where a deceased person makes a will, his or her surviving civil partner is legally entitled to a minimum share in the estate. This minimum share or ‘legal right’ is identical to that enjoyed by spouses, namely one-half if the deceased had no children, and one-third if he or she had children. As part of that minimum share, the civil partner may (subject to certain conditions) earmark the shared home of the partners.
4.3.3. Are there circumstances in which I can lose my succession rights?
Go to top of pageIn general, any person who has been convicted of certain offences serious against the deceased is precluded from taking any share in the estate of the deceased. Specifically, where the survivor has been convicted of the murder, attempted murder or manslaughter of the deceased (unless the deceased made his or her will after the offence of attempted murder was committed), the survivor is prevented from taking any share in the estate, whether conferred by will or under the Succession Act 1965, as amended.
Additionally,
there are a number of circumstances in which spouses and civil partners can
lose the right to succeed on the
death of a spouse or civil partner (though they may still succeed if named in
the deceased’s will). These include:
- Where the surviving civil partner has been in desertion of his or her civil partner for at least two years prior to the latter’s death, the survivor cannot claim as of legal right or on intestacy (i.e. where the deceased died without a will) (though if they are named in the will, they may take the share stipulated in the will)
- Where the surviving civil partner has engaged in conduct which justified the deceased in separating and living apart from the survivor (‘constructive desertion’), the survivor cannot claim as of legal right or on intestacy (though if they are named in the will, they may take the share stipulated in the will)
- Where the surviving civil partner has been found guilty of an offence against the deceased civil partner attracting a prison sentence of two or more years, the survivor cannot claim a share in the estate as of legal right (though if they are named in the will, they may take the share stipulated in the will, and may also succeed on intestacy)
- Where the parties have, in writing, renounced their legal right to succeed either before or after the civil partnership is created, the parties will not be able to claim from the estate as of legal right (though if they are named in the will, they may take the share stipulated in the will, and may also succeed on intestacy). A surviving civil partnership may also disclaim his or her right to succeed on intestacy.
- Where the parties have waived their rights under the Succession Act 1965 in a written separation agreement, the parties will not be able to claim as of legal right and, if the agreement so provides, on intestacy (though if they are named in the will, they may take the share stipulated in the will)
- Where the parties’ civil partnership has been dissolved, the parties will not be able to claim as of legal right or on intestacy (though if they are named in the will, they may take the share stipulated in the will).
4.3.4 My deceased civil partner, who left a will, has surviving children. What are their rights on her death?
Go to top of pageIf the deceased
died without making a will, her children (regardless of their age) are entitled
to one-third of her estate, to be divided equally between them. The
civil partner is entitled to the remaining two-thirds (subject to the right of
a child to seek additional provision, as discussed above).
While children have no automatic legal right to be provided for in the will of their parents, it is possible for a child to seek provision from the estate of a deceased parent. This can be achieved if it can be shown that the parent has failed in her moral duty to provide for her child. Section 117 of the Succession Act 1965 allows a child of the deceased to claim that he or she was not properly provided for either in the will or during the lifetime of the deceased. If the court accepts this argument, it may grant the child an interest in the deceased’s estate as it thinks proper. In making its decision, the court takes the stance of a ‘just and prudent parent’.
4.3.5 Is it possible for the children to claim a portion of the estate which includes property in respect of which a civil partner has a legal right?
Go to top of pageOrdinarily, an order made under section 117 of the Succession Act 1965 cannot affect the legal right of a civil partner. In other words, generally the court cannot eat into the portion of the estate to which the civil partner is legally entitled.
Nonetheless, the Civil Partnership Bill creates an exception allowing the court to apportion to the child of the deceased a part of the estate that would otherwise be the civil partner’s by legal right. This may only be done if the court believes that it would be unjust not to make such an order. Before the court does so, it must consider all the circumstances, including the deceased’s financial circumstances and his or her obligations towards the surviving civil partner.
This exception arguably protects the interests of children and thus is generally to be welcomed. It is notable, however, that in the case of married couples no such exception exists. A section 117 order made in favour of a child cannot affect the legal right of a spouse in any circumstances. The measure appears, in other words, to place the children of civil partners at an advantage relative to the children of married couples.
It is unclear why the court should be allowed to make exceptions in respect of the children of a civil partner and not in a case where the child’s parent is married. This seems to discriminate in favour of the children of civil partners, for reasons that are unclear. It is arguable that a similar exception should apply in respect of the children of married parents.
4.3.6 I already have a will, but am entering into a civil partnership. What will happen to my will?
Go to top of pageA will made by a
party before entering into a civil partnership will be ‘revoked’ (invalidated)
by the party’s subsequent civil partnership.
In other words, an existing will becomes invalid if the testator (the
person who made the will) subsequently becomes a civil partner. The will is not invalid, however, if made in
contemplation of the subsequent civil partnership. (The same principles apply to
marriage).
4.4 Recognition in equality legislation[23]
Go to top of pageEquality legislation will be amended to prevent discrimination against civil partners. It will thus become illegal to discriminate between people on the basis of their civil status, namely the fact that they are married, a party to a civil partnership, divorced, widowed, separated, single, or a party to a dissolved civil partnership. In particular, it will not be possible to discriminate against a person in employment or in the provision of goods and services on grounds that the person is or was a party to a civil partnership.
Notably, the Bill extends the definition of a ‘member of the family’ of a person for the purposes of the Employment Equality Act 1998-2004 so as to include the civil partner of a person as well as the child of his or her civil partner. Other relatives of a person’s civil partner are also deemed to be included. (By contrast, the definition of ‘near relative’ in the Equal Status Acts will include a civil partner but not the child of one’s civil partner).
4.4.1 My civil partner is very ill in hospital and the nurse at reception won’t let me see her. What can I do?
Go to top of pageThere are a number of important contexts in which it will not be possible to discriminate. A hospital that provides treatment to a patient will not be permitted to differentiate between spouses and civil partners, for instance, in relation to visiting entitlements and consultation where a civil partner or spouse is mentally incompetent to make decisions. Hotels and caterers will not be permitted to treat marrying couples differently from intending civil partners in making arrangements for a post-registration reception. Employers who give special leave or make special arrangements for newly-weds will also be required to make similar provision for new civil partners. Any benefit of employment that is extended to the spouses of employees will also have to be extended to employees’ civil partners.
4.5 Domestic Violence
Go to top of pageIn relation to acts of domestic violence, a civil partner will be in the same legal position as a spouse. In particular, a civil partner will be entitled to seek a barring order, safety order, protection order or interim barring order on the same basis as if the parties were married to each other. Domestic violence includes not only acts of physical violence, but also any conduct that undermines the safety or welfare of a civil partner.
The Criminal Damage Act 1991 is also amended. This Act creates a variety of offences relating to deliberate damage to property. In general, it is a defence to such a charge to show that the property belongs to the defendant (unless the property is damaged with intent to endanger the life of another or to defraud another). The Act (as amended) ensures that this defence will not, however, be available where the accused has damaged property that he or she owns, if that property is a family home from which he or she has been excluded under a domestic violence order. The Civil Partnership Bill will extend this rule to a civil partner or former civil partner who has been legally excluded from the shared home as a result of domestic violence. In other words, a civil partner who has been excluded from the shared home by reason of a domestic violence order will not be able to claim that the home is his or her own home in defending himself against a charge of criminal damage to the shared home.
Notably, a civil partner will be able to apply for an order under the Domestic Violence Acts with a view to protecting the dependent child of either civil partner, if the child is under the age of 18 or, in the alternative, disabled to such an extent as to prevent the child living an independent life. The applicant must either be the biological or adoptive parent of the child, or alternatively a person in loco parentis in relation to the child. Theoretically, this would allow a person to seek a barring order against his or her civil partner to protect either the applicant’s biological child or that of the civil partner against whom the order is being sought.
4.6. Wrongful Death
Go to top of pageThe right to sue for wrongful death in respect of a deceased civil partner will also be conferred on the surviving civil partner. This allows a person to sue in respect of the wrongful death of that person’s civil partner, where the death was caused by the negligence or wrongdoing of another person and has resulted in injury or mental distress to the applicant. Notably, while the child and step-child of the deceased may apply for relief, no provision is made for the child of the deceased’s civil partner.
4.7. Refugees
Go to top of pageA person may already seek asylum in Ireland on the basis that he or she fears persecution if returned to their country of nationality on the basis (amongst other things) of their sexual orientation. Currently, once he or she is granted refugee status, a refugee has a legal right to be joined in Ireland by his or her spouse and dependent children.[24] This right of reunification will, under the Bill, be extended to the civil partner of a refugee.
4.8 Pensions
Go to top of pageThe Bill requires that where a pension scheme provides a benefit for the spouse of a person, that pension scheme will be deemed to provide equally for the civil partner of a person. In other words, in assessing pension entitlements, civil partners will be treated as if they were spouses.
In addition to setting out a general principle of equality, the Schedule to the Bill amends at least 17 separate pieces of pensions legislation so as to ensure equal treatment in specific cases.
4.9 Conflicts of Interest
Go to top of pageA number of pieces of legislation require that a person must declare certain financial and other interests that they have with a view to identifying and avoiding potential conflicts of interest. (See for instance the Ethics in Public Office Act 1995). For this purpose, legislation typically requires also that the person must identify the financial interests of their spouses and other connected relatives, such as the children of that person. The purpose of this legislation is to avoid a situation where a person is entrusted with making a decision that may affect the their own financial interests or those of their spouse or other connected relative, and thus act to the advantage of that spouse or relative.
Legislation also precludes certain people from serving in positions in relation to a company or other organisation, where an officer of that company or body is a spouse or other relative of the person. For instance, section 187 of Companies Act 1990 prevents the appointment as auditor to a company of a person who is a spouse, parent, sibling or child of one of the company’s officers.
The Civil Partnership Bill generally requires that where any legislation dealing with ethics and conflicts of interest makes reference to a ‘connected person’ or ‘connected relative’ of a decision maker, such reference will be deemed also to refer to the decision maker’s civil partner. Where the person’s civil partner has a child who ordinarily lives with the couple, that child will also be deemed to be a connected relative or connected person for the purposes of any legislation. Ironically this requires the civil partner in his commercial and/or civic behaviour to avoid a conflict of interest arising from a relationship that the law otherwise does not recognise.
Similarly, any declaration of interests that a person must make in respect of the interests of their spouse must also be made in respect of that person’s civil partner (though not, strangely, in respect of the child of the person’s civil partner). What this means is that, as a general rule, where a person has a civil partner, the person will be required to declare any interests of that civil partner on the same basis as applies to a married spouse.
4.9.1 Specific Amendments to Ethics Legislation.
Go to top of pageIn addition to the general requirement of equal treatment, the Bill specifically proposes to amend 27 Acts, updating their conflict of interest provisions so as to include civil partners. These include, for instance, the Ethics in Public Office Act 1995, and the Companies Act 1990.
In some, but not all of these specific cases, the relevant amendments recognise the relationship between a person and the child of that person’s civil partner. For instance, section 13 of the Ethics in Public Office Act 1995 requires all holders of high political office to reveal the interests of their spouses and children, as well as the children of their spouses. The Civil Partnership Bill will require similar declarations to be made in respect of the civil partners of the office holder, as well as the children of the office holder’s civil partner.
Nonetheless, several other provisions of the Ethics in Public Office Act 1995 that are currently applied to the child of a spouse will not, it appears, be extended to the child of a person’s civil partner. For instance, Section 15 of the 1995 Act requires a holder of high political office to declare certain gifts made to him or his spouse or child, as well as to the child of his spouse. The Civil Partnership Bill proposes to extend these provisions to civil partners, but not to the children of the civil partner of the office holder.
Similarly, the Building Societies Act 1989, section 52 will (if amended by the Bill) regard the civil partner, spouse and child of a director of a Building Society as a person connected to that director for the purpose of that Act. The 1989 Act expressly defines a child as meaning a child or ‘step-child’ of the director, ‘step-child’ ordinarily meaning the child of a spouse. No explicit amendment is made to recognise the child of one’s civil partner.
The general provisions of the Bill do provide for recognition of the child as a ‘connected person’. Nonetheless, there appears to be some general equivocation as to whether the specific conflicts of interest provisions amended in Part 1 of the Schedule to the Bill will apply in respect of a person to the children of that person’s civil partner. For the sake of consistency, it is suggested that such inconsistencies should be explicitly addressed. Where the child is or has lived with the civil partner of a parent, there is every likelihood that the civil partner will in substance treat the child as if the child were his own biological child. As such, the risk of a conflict of interest is arguably as great as if the child were his own biological child, and thus every good reason to extend the conflicts of interest measure explicitly.
4.10. Mental Health
Go to top of pageThe Bill amends the Mental Health Act 2001 so as to ensure that, for the purpose of that Act, civil partners are treated the same as spouses. In particular, a civil partner will be included in the category of persons who may seek to apply for the involuntary admission to a psychiatric institution of a mentally ill civil partner (provided the parties are not separated and provided the applicant has not been the subject of an application under the Domestic Violence Acts).
4.11 Enduring Powers of Attorney
Go to top of pageAn enduring power of attorney allows a person (the ‘donor’) to nominate an ‘attorney’ who will be allowed to act on that person’s behalf where the person subsequently becomes mentally incapacitated. Where the power has been conferred, the attorney will ordinarily be permitted to make decisions relating to the business and financial affairs of the incapacitated person. It may also allow the attorney to make certain personal care decisions on behalf of the incapacitated person.
Subject to certain exceptions, a person generally may nominate any other adult to act as his or her attorney. This may include a spouse or civil partner. That said, unless the power of attorney provides otherwise, a power of attorney will be invalid if made in favour of a civil partner from whom the donor is separated, or where the parties’ civil partnership has been dissolved or annulled. Similarly, if a person grants a power of attorney to his or her civil partner, this will ordinarily be terminated if the parties subsequently separate or if the civil partnership is dissolved or annulled. Ordinarily a power of attorney will also be invalid or will end if any orders are or have been made against the attorney, at the donor’s request, under the Domestic Violence Acts.
Where a person other than the civil partner is appointed as an attorney, that person is required to consult with the civil partner of the donor in relation to the care of the donor. Likewise the Bill provides that where an attorney seeks to register the power of attorney under the Act, the attorney must give notice to the civil partner of the donor.
An enduring power of attorney cannot be created in favour of the owner of a nursing home in which the donor resides. A similar restriction applies to a person who resides with the owner, and to agents and employees of the owner. These exclusions, however, do not apply if the person appointed as attorney is the spouse, parent, child or sibling of the donor. Under the Bill, this exclusion will also not apply if the attorney is the civil partner of the donor.
4.12 Succession to Protected Tenancies
Go to top of pageVarious pieces of legislation confer protection on tenants in respect of certain types of private rented property. The Housing (Private Rented Dwellings) Act 1982 offers security of tenure and restricts rent increases in respect of certain rent-controlled dwellings. Likewise the Residential Tenancies Act 2004 offers statutory protection to tenants, including security of tenure, provided certain conditions as to the duration of the tenancy have been met.
Both Acts provide a right to succeed to the protected tenancy, which is conferred on specified persons (including spouses and children) who were legitimately residing in the dwelling at the time of the tenant’s death. In the case of each Act, the Bill extends this right to the civil partner of the deceased tenant.
4.12.1 Inconsistencies relating to children.
Go to top of pageBoth Acts already extend rights to members of the family of a deceased tenant, living with the tenant at the time of his death, to succeed to a protected tenancy. Notably, any person may, for the purpose of the Housing (Private Rented Dwellings) Act 1982, be deemed to be a member of the tenant’s family, provided certain conditions as to residence are met and provided the tenant was in loco parentis in respect of the child. Theoretically, this may include a child of a deceased tenant’s civil partner. (The child must have lived in the property, however, for at least six year’s before the tenant’s death.
By contrast, the Residential Tenancies Act 2004 does not recognise the child of the deceased’s civil partner as a member of the deceased’s family. Although the Act dies recognise a step-child of the tenant, this presumably includes only a child of a spouse, rather than the child of a civil partner.
4.12.2 Housing (Private Rented Dwellings) Act 1982.
Go to top of pageThis Act relates specifically to rent-controlled private dwellings. The Bill amends section 9(2) of the Act so as to permit a civil partner as well as a spouse of a tenant to succeed to such a tenancy on the death of the original tenant. The spouse or civil partner must have been residing in the property at the time of the original tenant’s death. Section 9(3) of the Act allows a member of the family of the original tenant to succeed to the tenancy, though if the tenant’s spouse is entitled to succeed to the tenancy, the family member will only retain possession as tenant on the death of the spouse. Arguably, for the sake of equality and consistency, section 9(3) should be amended to read “spouse or civil partner”. Section 9(3) clearly gives priority in respect of the right to succeed to the spouse. A civil partner, by contrast, may be required to share the tenancy with other members of the original tenant’s family.
4.12.3 I live in local authority housing rented to my civil partner. Am I entitled to succeed to the property if she pre-deceases me?
Go to top of pageThe Bill amends a number of provisions relating to public housing.[25] In general, however, it is for local authorities and housing associations to determine to whom public housing will be allocated and how succession arrangements will operate. Usually, local authorities recognise spouses and often recognise the partners of tenants for this purpose. The position of civil partners wishing to succeed to such a tenancy is, as yet, unclear. It is recommended, however, that a general clause should be included in the Civil Partnership Bill to require a local authority to treat spouses and civil partners equally for this purpose.
4.13 What can I do to clarify my legal status as a civil partner?
Go to top of pageAny person who is or was a civil partner (or any other person with a sufficient interest in the matter) may seek a court order clarifying the status of their relationship. This may include an order confirming that the civil partnership was valid when created or that it existed on specific date. It is also possible to seek an order to the effect that the civil partnership did not exist on a specific date, for instance because it had been dissolved. If a civil partner believes the civil partnership is void, he or she may also seek a decree of nullity, though this will be granted only on very limited grounds. (See below at 5.10).
4.14 My civil partner and I have separated and my partner now claims she owns our home and that I have no rights in relation to the home. What can I do?
Go to top of pageSection 104 of the Bill allows a civil partner to seek clarification from the courts regarding the ownership of disputed property. This may include clarification in relation to money, shares or other items, as well as in respect of interests in land. The court in offering such clarification may only decide to what property the parties are legally entitled – the court cannot change the legal entitlements of the parties.
It is important to note that where one person is named as sole legal owner of a property, another person may acquire a beneficial interest in that property if they have made contributions either directly or indirectly towards its purchase. This may include a contribution towards the purchase price or mortgage, as well as contributions made to the household while the mortgage is being paid off. Payments made, however, for the improvement of property belonging to another, and contributions in the form of home-making or child-raising, regrettably, will not be treated as contributions for the purpose of acquiring a beneficial interest in property legally owned by another.
Section 104 does not seem to apply to civil partners whose relationship has been dissolved, though it does apply to the parties to a void civil partnership.[26] It is also possible for the personal representative of a deceased civil partner to seek a section 104 order. Notably, the child of a deceased person who was a civil partner before death may also seek such an order.
5. Relationship Breakdown: Annulling and dissolving a civil partnership
Go to top of page
Regrettably, relationships sometimes come to an end. In the case of marital breakdown one of the primary purposes of family law is to allow for the orderly separation of the parties. In particular, the provisions of family law aim generally to ensure that married couples will be properly supported on separation and divorce.
5.1. My civil partnership has broken down. Can we separate?
Go to top of pageAlthough the matter is not dealt with explicitly, there appears to be nothing, in the Bill or in the law generally, preventing civil partners from living separate and apart. Although the parties must make a declaration on civil partnership that they will live with each other, there appears to be no legal mechanism to enforce this promise. (Nor is there any legal mechanism in respect of spousal cohabitation). That said, while the parties may choose informally to go their separate ways, it is usually advisable for separating parties to enter into a legally binding separation agreement.
5.1.1. What is a separation agreement?
Go to top of pageUnder a separation agreement, the parties agree to live separate and apart. Such an agreement may envisage, in particular, that while the parties will remain as civil partners, they will live separate lives free from the control and intervention of the other. In the case of separated spouses, a separation agreement typically also provides for such matters as the maintenance (financial support) that will be provided by one spouse to the other, the treatment of property belonging to the spouses or either of them (including the family home), and the custody of children (as well as access arrangements in respect of the non-residential parent).
Usually, a separation agreement will also provide for the extinguishment of succession rights, relieving the parties of any legal succession rights they may have when a spouse dies. It is likely that similar provisions would feature in the separation agreements of civil partners (though it is important to note that absent an agreement to extinguish the succession rights of separated civil partners or spouses, these legal rights are not terminated by separation alone).
One particular advantage of a separation agreement is that it formally records the date on which the parties begin to ‘live apart’, which is important if they wish subsequently to obtain a dissolution on the basis of two years of having lived apart from each other.
5.1.2 Are such agreements enforceable?
Go to top of pageAlthough the courts have proved reluctant to enforce an agreement that contemplates the possibility of a future separation, an agreement providing for immediate separation of married parties is typically enforceable, subject to the normal contractual defences. There is no reason to believe that a court would not enforce such an agreement between civil partners. In particular, there are no obvious public policy grounds for the non-enforcement of such an agreement. Indeed, section 127(3) of the Bill expressly refers to such agreements, requiring the court to have regard to separation agreements in considering the making of post-dissolution orders under the Bill. Similarly, section 47 of the Bill allows the maintenance provisions of such an agreement to be adopted as a rule of court (in much the same way as the maintenance provisions of a spousal separation agreement may be treated under section 8 of the Family Law (Maintenance of Spouses and Children) Act 1976). This allows the provisions of the agreement relating to maintenance to be enforced as if they were orders made by the court itself.
While a court is required to have regard to any separation agreement when considering whether to grant remedies on dissolution, it is not bound by the terms of the agreement. In particular, the court may make orders on dissolution that effectively change the agreement. That said, increasingly the courts tend to uphold the terms of separation agreements unless particular injustice would be done to either party.
5.1.3 Am I totally free once I get a separation agreement?
Go to top of pageIt is important to note that while civil partners who enter into a separation agreement are free to lead separate lives, they may not marry or enter into a new civil partnership unless they obtain a court-ordered dissolution (see 5.2 below).
5.1.4 I am contemplating entering into a civil partnership, but I want to make sure that my new civil partner will not be able claim an interest in my farm if the relationship breaks up. Can I make a’ pre-nuptial’ agreement?
Go to top of pageThe position of a pre-nuptial agreement in Irish law is somewhat unclear. An agreement made in contemplation of marriage that provides for the possibility of a future separation has traditionally been regarded as void for public policy reasons. Nonetheless, the 2007 Report of the Study Group on Pre-nuptial Agreements[27] concluded, by contrast, that such agreements were enforceable in Irish law.
The position of
a pre-registration contract between civil partners is not dealt with directly
in the Bill, and the position of any such agreement is unclear. Indeed even if an agreement between civil partners
regarding property is recognised, a court may vary the agreement on
dissolution. The court can, in granting a property adjustment order, vary a
pre-registration or post-registration settlement made by the civil partners
(including by means of a will, codicil or trust) in favour of one of the civil
partners. A court would, however, more
than likely be reluctant to subdivide a farm or business, or to transfer such a
farm or business if owned by a partner whose main livelihood is derived from
the farm or business. In C.C. v. C.J.[28]
the High Court refused to make an order in relation to business premises owned
by the husband, the wife having had “no connection” with the business.
5.2 Dissolution of a Civil Partnership
Go to top of pageThe Civil Partnership Bill also provides a mechanism for the ordered break-up of a civil partnership. This mechanism, called dissolution’, is largely similar to a divorce on the break-up of a marriage, though some notable differences arise. Such dissolutions may only be granted by a court, subject to certain conditions.
5.2.1 What are the grounds for the dissolution of a civil partnership?
Go to top of pageA civil partner may seek to dissolve his or her civil partnership where certain conditions are met. These are that the partners must have been living apart for periods amounting in total to at least two years out of the previous three years. The period of living apart need not be continuous, but it must amount in total to at least two years of living apart during the three years preceding the application. This is considerably shorter than the constitutionally mandated living apart period for divorce, which requires that the parties live apart for at least four of the previous five years.
A court will also only be entitled to grant the dissolution where it is satisfied that proper provision (e.g. the provision of financial support and appropriate accommodation) has been or will be made for both civil partners. This is similar to the requirement that applies in the case of divorce; subject to the exception that the court must also be satisfied in granting a divorce that proper provision has been made for any dependent children of the family. Notably, the requirement relating to proper provision for the dependent children of spouses or either of them does not apply where a civil partnership is being dissolved.
5.2.2 What is meant by ‘living apart’?
Go to top of pageFor two parties to be deemed to be living apart, the parties must be leading separate lives. It is not enough, however, that the parties are not physically present in the same place. Living apart requires both a physical element and a mental element. Take, for instance, an otherwise happy couple one of whom lives in Ireland while the other has been posted abroad to work (e.g. as a diplomat, on an oil rig or in the armed forces). The couple will not be regarded as ‘living apart’ unless at least one of them has the necessary mental element, namely that he or she regards the civil partnership as over.
The quality of
living apart is thus as much a state of mind as it is a physical state of
separation. Correspondingly, the law
applying to married couples recognises that a couple may be living apart from
each other even if they are sharing the same house or premises.[29] While the parties may ostensibly be living
in the same house, if the evidence establishes that they are effectively
leading separate lives, they may be deemed to be living apart. For this purpose, the court will look to all
household arrangements.
5.2.3 My civil partner wants a dissolution, but I think we can patch things up. Will she be granted the dissolution?
Go to top of pageUnlike divorce, there is no requirement that the parties seeking a dissolution of a civil partnership demonstrate that there is no chance of reconciliation between them. By contrast, a divorce (in relation to a marriage) will only be granted where it can be established that there is no reasonable prospect of reconciliation. Proceedings for divorce, moreover, may only be commenced where both of the parties’ solicitors certify that they have advised their clients regarding all of the alternatives to divorce, including mediation, separation and counselling with a view to reconciliation. In short, legislative policy dictates that every possible alternative avenue should be explored before a divorce is granted. Divorce, the legislation suggests, should only be granted as a last resort, when all other options have been considered.
The Civil Partnership Bill makes provision to adjourn dissolution proceedings to allow the parties to discuss the possibility of reconciliation or agreement, if the parties so wish. There is, nonetheless, no overriding requirement that steps be taken to ensure that all alternatives to the dissolution of a civil partnership have been explored.
It is unclear why a reconciliation requirement similar to that in place for divorce should not also apply to civil partners. The fact that the period of living apart is much shorter for dissolution of a civil partnership than for divorce arguably militates strongly in favour of ensuring that the civil partners are indeed irreconcilable.
It is probably fair to say that the very fact that the parties have been living apart for two years strongly suggests that their relationship is well and truly over. That said, it is contended that a mechanism should be included to ensure that the dissolution will only be granted where the parties are unlikely to be reconciled. Given the consequences of the dissolution of a civil partnership, it would appear prudent to avoid such dissolution unless there is no other option but to do so.
5.3 Remedies available to the parties on dissolution.
Go to top of pageThe remedies available to both parties on the dissolution of civil partnership are extensive. Once the dissolution is granted, and as a general rule at any time after dissolution, either party may seek one or more of a number of remedies provided by the Bill. These remedies (sometimes called ‘ancillary orders’) are generally identical to those available to divorced spouses.
5.3.1 Maintenance and lump sum orders.
Go to top of pageThe remedies include a right to seek maintenance. This may comprise periodical payments, or may be paid in a lump sum or lump sums, at the discretion of the court. The court may also order that such payments be secured. Additionally, on the granting of a maintenance order in favour of either former civil partner the court may direct that the maintenance be drawn directly from the salary or wages of the other former civil partner. This is done by means of an ‘attachment of earnings’ order.
5.3.2 Property Adjustment Orders.
Go to top of pageThe court may also make extensive orders in relation to any property owned by either former civil partner. In a nutshell, the court may, at its discretion, take any property owned by either or both former civil partners and redistribute the ownership of such property between the civil partners as the court considers appropriate. Property for this purpose includes not only land and houses, but also personal property such as furniture, household appliances, money, shares and even family pets. The court may, in relation to such property, make a variety of property adjustment orders. These orders can be used to transfer ownership of a property or an interest in property from one former civil partner to the other or otherwise to alter the property interests of one former civil partner to the benefit of the other. Existing settlements of property made by the partners in each other’s favour may also be varied.
A property adjustment order cannot be made under the Bill in respect of property which is now the shared home or family home of one of the former civil partners and his or her new civil partner or spouse.
5.3.3 Shared home.
Go to top of pageSpecific provisions relate to the shared home of the former civil partners. The court may, on dissolution, make an order conferring a right of residence in the shared home, either for life or for some defined period, to the exclusion of the other former civil partner. This allows a former civil partner to continue occupying the home. The court may also make an order under the Domestic Violence Acts 1996-2002, for instance, a barring order excluding one of the former civil partners from the shared home. It may, in the alternative, order the sale of the home, and the distribution of the proceeds of sale.
An order in respect of the shared home cannot be made under the Bill in respect of property which is now the shared home or family home of one of the former civil partners and his or her new civil partner or spouse.
5.3.4 Sale of Property of Civil Partners.
Go to top of pageThe court is also empowered to order the sale of any property of the former civil partners, under certain conditions (namely, that the court has also made a secured periodical payment order, a lump sum order or a property adjustment order). The main purpose of such a sale appears to be to allow periodical payments or lump sums to be made to either party, though the proceeds may also be used to purchase new property for either civil partner.
An order for the sale of property cannot be made under the Bill in respect of property which is now the shared home or family home of one of the former civil partners and his or her new civil partner or spouse. Likewise, a court making an order for the sale of property under the Bill cannot affect any order made by the court granting a former civil partner the right to occupy the shared home (see 5.3.3 above). (Though see the discussion below at 5.6.2 relating to orders following divorce).
5.3.5 Financial Compensation Order.
Go to top of pageThe court may also order a former civil partner to set up a life insurance policy for the benefit of the other former civil partner, or to assign an existing policy to the latter. The purpose of so doing is to ensure the financial security of the beneficiary of the policy.
5.3.6. Allocation of Pension Entitlements.
Go to top of pageThe Bill also permits the court to grant a pension adjustment order. A pension adjustment order allows the court to direct that the pension entitlements of a former civil partner be allocated (either now or at some point in the future) between the former civil partners, as the court considers appropriate. This means that a former civil partner will be able to benefit from the pension of his or her partner, once the pension becomes payable.
5.3.7 Termination of succession rights.
Go to top of pageAs with divorce, dissolution of a civil partnership will terminate the succession rights of the former civil partners. This means that on dissolution, the various legal rights discussed above at 4.3 (both in relation to wills and where a civil partner dies without making a will) will be extinguished. The now former civil partners will not be entitled to succeed at all if one or other dies without a will. Additionally, the surviving former civil partner will also no longer be able to claim a minimum portion of his former partner’s estate, should the latter die.
It is still possible, of course, for a person to provide for his former civil partner by will, though he or she is not obliged to do so where the civil partnership has been dissolved.
Nonetheless, the
Bill (as is the case on divorce) allows a former civil partner to seek
provision from the estate of a deceased former partner if certain conditions
are met. A court may grant the
surviving former civil partner a share in the deceased’s estate if the court is
satisfied that proper provision has not been made for the survivor during the
deceased’s lifetime. Such provision
must be sought within 6 months of the granting of representation in respect of
the estate. This right to seek provision
may, however, be extinguished at any time after dissolution (as it may be on
divorce) by order of the court.
5.4 On what basis does the court decide to make particular orders?
Go to top of pageSection 127 sets out a variety of factors that the court must consider when deciding to grant the remedies discussed above after a civil partnership has been dissolved. There are at least twelve factors in total, and each of these must be taken into account by the court before deciding what remedies to award the parties:
- The income, earning capacity, property and other financial resources of each civil partner (e.g. is one partner considerably wealthier than the other?)
- The financial needs, obligations and responsibilities of each civil partner. (Theoretically, the court should have regard to the obligations and responsibilities of a civil partner to his or her biological child.)
- The standard of living enjoyed by each civil partner before they broke up
- The partners’ ages and the duration of their civil partnership, as well as the length of time they have cohabited after their civil partnership. The court, in this context, is required only to have regard to time spent living together after the civil partnership is contracted.[30] It is suggested that the Bill should be amended to allow the court to have regard to the duration of the parties’ relationship preceding as well as post-dating the civil partnership. After all, many couples who may become civil partners may have been living together long before the opportunity to enter into a civil partnership became an option.
- Do either of the civil partners have a mental or physical disability?
- The contributions made by each civil partner to the civil partnership, including their contribution to the income, earning capacity, property and financial resources of the other civil partner
- The contribution made by either or both civil partners by looking after the shared home
- The effect on each partner’s earning capacity of taking on certain responsibilities while civil partners, in particular any impairment of the earning capacity of a civil partner arising from his or her relinquishing paid employment in order to look after the shared home
- Any income or benefits to which either partner is entitled by statute (e.g. social welfare entitlements)
- The conduct of the parties, but only if it would be unjust to ignore it (the courts for instance, generally ignore acts of infidelity between spouses)
- The accommodation needs of each civil partner
- The value of any benefit that either civil partner will lose or forfeit as a result of the dissolution (this may include the loss of succession or pension rights)
- The rights of a third party, including a new civil partner or spouse of either party, or any child to whom either partner owes an obligation of support.
When making an order the court is also required to have regard to any separation agreement entered into between the civil partners (though this does not preclude the court from effectively varying such an agreement). There is also an overriding requirement that a court may not make an order unless it is in the interests of justice to do so.
5.4.1 I have two young children who lived with my civil partner and I. Will the court take their interests into account when granting remedies on dissolution of the civil partnership?
Go to top of pageRegrettably, the Civil Partnership Bill makes little provision on dissolution for the children of civil partners. The dissolution may be obtained, for instance, without having regard to whether proper provision has been made for any dependent child of either civil partner. By contrast, a divorce may only be granted where a court is satisfied that proper provision has been made for both spouses and any dependent members of the family. [31] Theoretically, this means that a civil partnership may be dissolved in circumstances where a child of either party may be financially disadvantaged as a result.
Similarly, the various factors outlined above tend in the main to ignore the impact on children of making orders under the Bill after the dissolution is granted. No reference is made, for instance, to the contribution of a civil partner in rearing or caring for her own children or those of her civil partner. Nor is the court directed to have regard to the impact on the earning capacity of a civil partner who stays at home to care for any child or children who reside with the couple. The accommodation needs of children are also generally ignored.
Divorce legislation, by contrast, requires the court to have regard, in making any orders, to the contribution either spouse has made to the raising of children, and to their care. The Family Law (Divorce) Act 1996 also requires the court to take into account the effect on a spouse’s earning capacity and income where he or she has given up work outside the home in order to raise children. Notably, these factors are not referenced in the Civil Partnership Bill. Indeed, ironically, the Bill allows the court to take into account the contribution a civil partner has made to the shared home of the partners, and the effect such a contribution has made to his or her career, but not the contribution made to the raising of children.
This appears odd, given that the primary reason a spouse or civil partner would voluntarily give up a career outside the home would be to care for their children. The Bill strangely would recognise the contribution a civil partner makes by staying at home to cook for, clean and iron for the other civil partner, but not the more profound contribution made by helping to raise children.
Section 127(2)(l) may, however, may provide some relief for civil partners with children, though not directly for their children. This sub-clause requires a court, when granting remedies after a civil partnership has been dissolved, to have regard to the rights of any child to whom either of the civil partners owes an obligation of support. This does not place any obligation on a civil partner who is not the biological parent of a child. It does, however, require the court to take into account the rights of the child in making any order.
This may mean, for instance, that a court would grant remedies that take into account the fact that one of the former civil partners has a child or children. In other words, the remedies awarded to former civil partners may differ depending on whether either of them owes obligations to his or her biological child.
Section 127(4)
may also be of significance in this context.
It prevents a court from making an order on dissolution unless it would
be in the interests of justice to do so.
It is strongly arguable that the interests of justice would not be
served if a child were to be disadvantaged as a result of such an order being
made. This overriding requirement of
justice may thus be used to ensure that the interests of any child of either
former civil partner are upheld in making orders after dissolution.
5.5 Once an order is made can it be varied?
Go to top of pageMost of the orders made by a court on the dissolution of a civil partnership or thereafter can be subsequently altered by the court. In general, however, an existing order can only be varied if the circumstances of the former civil partners have changed since the original order was made.
In particular, it is possible for a court to change an order for maintenance or periodical payments, a financial compensation order, certain property adjustment orders and orders in respect of the shared home as well as a pension adjustment order. The court may vary or suspend an existing order or revive a suspended order.
The general rule is that few orders made under the Bill will be valid for all time. Circumstances may change, and the courts will adapt orders to cater for these changes. For instance, a former civil partner may, at the time of dissolution, have no means of income and be granted maintenance. Five years down the line, if he or she is now in well-paid employment, the other former civil partner may be justified in seeking to terminate the original order. Similarly, maintenance may need to be altered if the person required to pay maintenance loses his or her job.
5.6 Is there a deadline for seeking remedies on dissolution? Are there any other restrictions on my right to seek remedies?
Go to top of pageA former civil partner may ask the court to make any of the orders discussed above at the time of dissolution or at any time thereafter. Therefore, as is the case on the divorce of a married couple, there is no ‘clean break’ available on dissolution. There is no time limit on the right to seek remedies on dissolution. Theoretically, this means that either former civil partner may seek continuing support in the form of financial support, but may also seek fresh orders relating to property, pensions