Dealing with the position of unmarried couples in society and constitutional reform poses problems, as the devil is often in the detail, writes Dr John Mee
The Minister for Justice, Equality and Law Reform has recently established a working group on domestic partnership. This follows the publication in January of the Report on the Family of the All-Party Oireachtas Committee on the Constitution.
The new working group is now seeking submissions and will report to the Minister by October. A key limitation on the remit of the working group is that it is to consider the legal recognition of non-marital relationships only to the extent which is compatible with current constitutional provisions on the family.
This results from the Oireachtas committee's rejection, by a majority, of the idea of a referendum to expand the constitutional definition of the family. At present, the constitutional provisions cover only the family based on marriage, with the State being obliged to protect the institution of marriage from attack.
The term "domestic partnership", at once cosy and anodyne, serves to de-emphasise the controversial nature of the working group's task. There is, however, a more significant political compromise at play here.
It makes no sense that, prior to the working group's close examination of the issues, options necessitating a change in the constitutional definition of the family have already been ruled out. The Oireachtas committee justified its rejection of a referendum on the basis that it would cause "deep and long-lasting division in our society".
The committee felt it could avoid the "anguish and uncertainty" of a referendum by dealing with the position of unmarried couples through legislation. But, as always, the devil is in the detail and the committee refrained from getting into the detail of possible legislative reform.
On closer inspection, our constitutional provisions create significant difficulties for some of the most obvious reform options.
Consider the possibility of giving legal recognition to a form of civil partnership for heterosexual couples which would carry a less comprehensive set of rights and duties than marriage.
In relation to such a proposal, one must remember the State's pledge in Article 41.3 of the Constitution to guard with special care the institution of marriage and to protect it from attack. If the State sets up a new institution to compete with marriage, designed to cater for those who have ideological objections to traditional marriage or who would simply prefer marriage-lite, surely this is as direct an attack on marriage as can be imagined?
The committee argued that the balance of constitutional case law suggests that the Oireachtas may give marriage-like privileges to cohabiting couples provided these do not exceed those of married couples. However, these cases involved legislative measures on individual matters (eg on aspects of the tax code), rather than the creation of a package of rights which would put a rival institution in competition with marriage. The committee saw civil partnership as a possible solution to the "problem" of unmarried cohabitation.
However, it cannot be denied that a significant number of couples would choose a civil partnership scheme instead of marriage, rather than cohabitation. Therefore, such a scheme appears to involve a constitutionally-forbidden attack on marriage.
Significantly, this objection does not appear to apply in the context of civil partnership for same sex couples, since such couples could never marry as the Constitution stands. Therefore, there is no danger of their being wooed away from marriage by a trendier alternative institution.
Besides a civil partnership scheme, which must be entered by couples on the basis of a positive choice, an alternative approach to reform involves imposing a set of rights and duties by default on couples who have cohabited in a marriage-like relationship for a specified period (eg for more than three years). Such a "presumptive" scheme was proposed by the Law Reform Commission in a 2004 consultation paper. However, again there may be constitutional problems.
The Law Reform Commission took the view that the constitutional protection for marriage required the exclusion from any such scheme of couples where one or both of the parties was still legally married to a third party, even if that marriage was in reality long dead.
This would be a damaging restriction, since it would arbitrarily exclude a significant proportion of cohabiting couples.
Moreover, given the international evidence that cohabiting couples tend to misconceive their legal rights, it would be likely to lead vulnerable people to the false assumption that they enjoyed legal protection.
Notwithstanding the above points, it is not impossible to work within the current constitutional framework. The first step is the prompt enactment of civil partnership legislation for same sex couples.
There appears to be no compelling reason to extend such a scheme to heterosexual couples, who already have the option of marriage. As well as the constitutional problems, international experience suggests that the level of take-up from heterosexual couples would be rather low.
The introduction of a presumptive scheme (to apply to same sex couples also) would have a greater practical impact. It is true that rates of cohabitation have increased but very little research has yet been conducted into the nature of cohabiting relationships in Ireland and the reasons why people choose not to marry.
Dr John Mee is a senior lecturer in the Law Faculty, University College Cork