ANALYSIS:What does the civil partnership legislation do and how will it work?, writes CARL O'BRIEN
BY ANY yardstick, the passage of the Civil Partnership Bill through the Oireachtas is a historic development.
For the first time, it extends many of the benefits of marriage to lesbian and gay couples. In addition, it provides a legal safety net for tens of thousands of unmarried cohabiting couples (gay or straight) who, until now, have been largely invisible in the eyes of the law.
For same-sex partners who choose to avail of a civil partnership, it is a milestone which campaigners never thought possible only a few years ago.
On paper at least, Ireland during the 1980s and early 1990s had one of the worst legal regimes for lesbians and gays in western Europe. There was no recognition or protection of any kind, while homosexual acts were still a criminal offence.
When the new legislation is enacted later this year, same-sex couples will have access to a range of marriage-like benefits in fields such as property, social welfare, pensions, succession, maintenance, enduring power of attorney, the creation of joint tenancies, pensions and tax.
We must still wait for separate legislation governing aspects of social welfare and taxation – which are expected later this year or early in 2011 – but the Government commitment is clear: civil partners will be treated in the same way as married spouses under the tax and social welfare codes.
The dissolution of civil partnerships will also mirror marriage in that applications to dissolve such unions may only be made once both parties have been living apart for four out of the previous five years, just as with divorce applications.
That said, it is far from full equality. The civil partnership legislation does not represent full marriage equality, while it also ignores children.
For gay couples who have children, there is no legal mechanism, for example, to establish a joint legal connection with their child. That fight for full equality is for another day.
For both straight and gay cohabiting couples who choose not to avail of civil partnerships (in the case of same-sex couples) or marriage (in the case of heterosexuals), the legislation is also ground-breaking.
Latest census figures show the number of cohabiting couples leapt from 31,300 in 1996 to 121,800 in 2006.
They now account for one in 12 family units. And all indications are that the number will keep rising.
Many unmarried couples living together for a long time often assume that they have a degree of legal protection. They don’t. Neither the length of a relationship nor the birth of a child results in any legal rights being attributed to cohabiting couples.
Family lawyers regularly report the injustice and financial hardship suffered when the relationships of cohabiting couples break down, sometimes after decades and having had children together.
However, this gap in the law will change. The Civil Partnership Bill gives legal protections to cohabitants who have been living together for five years.
This includes a redress scheme for cohabiting couples (same sex and opposite sex) who are not married. The scheme may be activated at the end of a relationship, whether by break-up or death.
It will allow for a “financially dependent” cohabitant to apply to court for redress. The orders that can be sought include a transfer of property, a lump sum, periodic payments and a share in the other person’s pension. If the relationship ends through death, the surviving cohabitant can make a claim on the estate.
In deciding whether to make the order, the court must consider a number of issues.
These include the duration of the relationship and the level of financial dependence between the couple; the contribution or sacrifice that each has made for the welfare of the other, etc.
For those who want to opt out of the redress scheme, couples must register a “cohabitant agreement” which regulates the shared financial affairs of the couples.
These are valid only if the cohabitants have each received independent legal advice or have received legal advice together and have waived the right to independent legal advice, have signed the agreement, and it complies with the generality of contract law.
The arguments in favour of the current legislation are generally that protections for unmarried couples are long overdue.
But there is also a substantial body of opinion which feels the State is trampling across a corner of freedom where couples have been able to escape the burden of family law and all of its responsibilities.
Whatever your standpoint, it is clear that Irish society has changed dramatically in recent years and that our family laws have been hopelessly out of date.
For the first time in decades, it seems legislators are finally beginning to catch up.
Carl O’Brien is Chief Reporter