Unmarried parents are skating on thin legal ice in this State, especially fathers, writes Louise Holden
Just because one in three Irish children is born out of wedlock doesn't mean that one in three Irish pregnancies is a "crisis". The recent report of the Crisis Pregnancy Agency brought some interesting figures to light, but it didn't throw much light on the incidence of successful unmarried co-parenting in this State.
According to the last census, 30,000 Irish families were nuclear in every respect but the marriage certificate. With the trend towards cohabitation growing across the industrialised world, the next census will almost certainly reveal an increase in that figure.
The Law Reform Commission is due to publish a consultation paper on the rights and duties of cohabitees this summer, to address the issue of whether or not the law should recognise these relationships.
Many countries now confer automatic legal rights to "common law" or de facto couples and families - Ireland is not one of them. The Irish constitution does not recognise an unmarried couple and their children as a family. For the thousands of mothers, fathers and children living together in this State, this is an absurd proposition. And yet it goes further than being an insult. Without a marriage license your rights are minimal.
At present, the most vulnerable figure in the cohabiting family is the father. "Many unmarried parents believe that if they put the father's name on the child's birth certificate, that gives him rights. It doesn't," says Margot Doherty of the unmarried parents support group Treoir.
Putting the baby's father's name on the birth certificate is nice for the child, but, beyond the feel-good factor, it carries little weight, a fact of which many unmarried Irish fathers are unaware.
Unmarried parents will have noticed that they were not allowed to put both their names on the birth certificate in hospital - if unmarried, you both have to go into the registry office and sign a form. That's the first indication that, as an unmarried couple, the path of parenting may have a few extra speedbumps.
In the Republic of Ireland, unless a man is married to the mother of his child, he has no automatic rights of parenthood. Even if he has been a full-time, live-in father from day one, upon the mother's death he is left to apply to the courts for guardianship of his offspring. Cohabitees take note: make a will appointing the father as guardian, or he could be left with a costly and distressing legal procedure.
"Making a will is not high on the agenda for young parents but it should be - in the event of the mother's death the unmarried father is left high and dry," says Margot Doherty.
She also warns that when a cohabiting couple breaks up, and the mother subsequently marries somebody else, the new husband can apply to adopt the children of the previous relationship. If he succeeds, the biological father can be cut out of the legal equation altogether.
Even where the mother and the relationship survives, the unmarried father can be refused information about his children by doctors, teachers and public bodies.
Unmarried partners are not treated similarly to married couples for the purposes of adoption, and cannot, as a couple, adopt children.
If, as an unmarried couple, you wish to have your child's name on both of your passports, you need to get a special form from the passport office, which is called the "I Am The Mother" form.
Unmarried mothers, or married mothers who have a different surname to their children, may be required to produce a letter of consent from the baby's father to be allowed to leave the country with their child.
Where financial benefits are concerned, cohabiting parents get the worst of both worlds. Where only one parent is working outside the home, he or she cannot avail of the other's tax relief. Fair enough, but by that logic the couple should enjoy the same tax benefits as single parents - the special income tax allowance. Not so. The Department of Social Welfare recognises cohabitation for the purpose of denying special income tax allowance, but the Exchequer does not recognise it for the purpose of conferring married couple tax benefits.
If you are not cohabiting, however, and the child stays with one parent one night a week, then both parents can apply for single parent tax relief. The tax system encourages unmarried parents to live apart.
If the property shared by an unmarried couple is in one name only, and that person decides to sell, the other partner has no say in the matter. The legal owner may ask the other to leave at any time and, if necessary, the courts will facilitate this by granting an injunction or an eviction.
If the property is jointly owned and one partner dies, the survivor must pay inheritance tax on the deceased partners' interest in the property.Public service pensions in Ireland are paid to the legal spouse only. The State will not pay a widow's pension to a person whose marriage is not recognised by the State.
Cohabiting partners don't benefit from the Succession Act, so if a partner dies without making a will, the surviving partner has no rights of inheritance. Even where there is a will, partners are treated as strangers for tax purposes and inheritance tax applies.
This list is by no means exhaustive. Maintenance rights in the case of separation, legal recourse in the case of domestic abuse, and tax liability where gifts are exchanged are all risk areas for unmarried couples and parents. The recent court decision not to grant automatic citizenship to parents of Irish children, has implications for unmarried parents too. Without a work visa or a marriage certificate an unmarried partner could find himself or herself alienated from citizenship here.
Not everyone wants to or, indeed, can marry. For many people, the institution of marriage has been hollowed out by the availability of divorce, the recession of religious influence or the experience of parental separation.
For now, however, the married-with-children idyll is the only domestic permutation fully protected under Irish law. As this month's Crisis Pregnancy Agency figures reveal, this leaves a significant cohort of Irish "families" in a legal wilderness.
lholden@irish-times.ie
