The law makes it difficult to recognise relationships outside of the framework of biological parenthood

About a thousand same-sex couples have entered into civil partnerships since the first Irish ceremony took place in April 2011. For many of these couples, thoughts will now be turning towards starting a family.

However, current family law is ill- equipped to deal with the complexity of civil partnership families, according to Dr Fergus Ryan, a law lecturer at DIT.

“Two civil partners cannot be the legal parent of a child at the same time,” he says. “They can’t share legal responsibility.

“The law is not simply outdated with lesbian and gay couples – it’s outdated generally. It was initially put together in the 1960s. There have been reforms but it makes it difficult to recognise relationships outside of the framework of biological parenthood.”

Biological parent
While same-sex couples can foster children, and gay and lesbian people are allowed to adopt on an individual basis, there is no provision for civil partners to adopt a child jointly.

Also, in a civil partnership where one partner is the biological parent of the child, there is no provision to establish a legal relationship between the child and the non-biological parent.

“The biological parent can provide for passing guardianship in their will – testamentary guardianship,” says Ryan, “but this can be challenged by any surviving parents. It makes the situation of the child and the family very precarious.

“The basic position is that the biological parent has fairly extensive rights and obligations, whereas the non-biological parent – even if starting a family was a joint decision and they are supporting each other – has no obligation.”

Rights include the ability to make decisions regarding education, religious and medical matters. In a report on same-sex parenthood published in February by LGBT Diversity, gay and lesbian parents gave examples of the practical problems this creates, from not being able to sign a note for school to not being able to give consent in a medical emergency.

If a couple splits up, then the situation is stark. “If the non-biological parent has been in a parenting position then he or she can seek access,” Ryan says. “There is a recognised right of a child to have contact with other important people.

“Other than that, the non-biological parent cannot seek guardianship in the lifetime of the existing guardian. They can’t seek custody. They also don’t have to pay maintenance to the child or provide for them in their will.”

However, Jennifer O’Brien, head of the family law department at Mason, Hayes & Curran, says that where a civil partner with no legal relationship has been acting in loco parentis over a period of time, rights of maintenance may spring up.