Court to rule today on lesbian couple's recognition challenge

The High Court will give its decision today on whether an Irish lesbian couple who married in Vancouver, Canada, a year ago may take legal proceedings to have their marriage recognised here and to have the Revenue Commissioners treat them under the Tax Acts as a "husband and wife".

Ms Katherine Zappone and Ms Ann Louise Gilligan claim there is no legal impediment to recognition of a same-sex marriage.

They say the refusal of the Revenue to grant them the same tax reliefs as available to an opposite-sex married couple discriminates against them on grounds of gender and/or sexual orientation and breaches their rights under the Constitution, European Convention for the Protection of Human Rights and Fundamental Freedoms, and the charter of Fundamental Rights of the EU.

They claim their rights to marry and to respect for their private and family life have been breached as have their rights to benefits under tax law. The conduct of the Revenue and State has, they claim, caused them distress, inconvenience, loss and damage.

Yesterday, Mr Gerard Hogan SC, and Ms Ivana Bacik, for the couple, applied for leave to take judicial review proceedings in which they will seek, among various reliefs, orders compelling the State and Revenue to recognise their marriage in Canada and to treat them as a married couple under the Tax Acts.

Mr Justice McKechnie said he wished to consider the matter overnight and would give his decision this morning. The respondents in the proposed proceedings are the Revenue, Ireland and the Attorney General. If leave is granted, the outcome of the case will have significant implications for the tax rights of same-sex and cohabiting couples.

According to the 2002 census, some 1,300 couples described themselves as same-sex couples while there were 77,600 family units based on cohabiting couples.

The judge heard yesterday that Ms Zappone, a public policy consultant and member of the Human Rights Commission, and Ms Ann Gilligan, an academic, have been living together for 23 years and are joint owners of a home at Glenaraneen, Brittas, Co Dublin, and a holiday home at Kimego West, Caherciveen, Co Kerry.

They married in a ceremony in Vancouver, British Columbia, Canada, on September 13th, 2003, before family and friends and describe themselves as a lawfully married couple living together.

However, when they applied to the General Register Office here for confirmation that their marriage was legally binding in Ireland, they were told that was not a matter which came within the remit of that office. While there is no mechanism in law for having a foreign marriage registered here, the couple say a foreign marriage certificate, accompanied by a translation from a reputable translation agency if necessary, is acceptable by the State for most legal and administrative purposes.

The couple wrote to the Revenue on April 26th last informing them of their marriage and enclosing a copy of their marriage certificate, plus an affidavit from a Canadian lawyer confirming their marriage was legally recognised under Canadian law. They claimed to have the same allowances as a married couple under the Taxes Consolidation Acts.

The Revenue informed them on July 1st, 2004, that it would not allow their claim for allowances as a married couple. The couple say that while the Tax Acts do not define the terms "husband and wife", the Revenue had told them that the Oxford English dictionary defined "husband" as a married man and "wife" as a married woman and justified its refusal on that basis.

The couple claim that, if they were an opposite-sex couple resident in Ireland who married in Canada, then their marriage would be recognised here and they would receive the various reliefs available to a married couple under the Tax Acts. Under those Acts, persons legally married and living together as husband and wife are entitled to certain income tax and capital gains benefits not available to cohabiting couples.

Outlining the basis of the case, Mr Hogan said he would be contending that the Constitution, the ECHR and the Tax Acts contain no definition of what constitutes marriage.

While the Constitution did not stipulate that marriage involves a husband and wife, Mr Hogan said he accepted that was the understanding in 1937 when the Constitution was drafted. However, the Constitution "did not freeze constitutional standards in the permafrost of 1937".

Matters had moved on and the Constitution must be interpreted as a living document.