Differences betwen unions run deep

Question: What is the difference between marriage and civil partnership?

 A Marriage Equality poster featuring campaigners Grainne Healy  and Denise Charlton. Photograph: Dave Meehan

A Marriage Equality poster featuring campaigners Grainne Healy and Denise Charlton. Photograph: Dave Meehan

 

“I voted for civil partnership out of recognition that gay and straight people are equal citizens who deserve to have their loving relationships respected,” Independent Senator Fidelma Healy Eames said in February.

It was a line that flagged one of the key arguments the No side would build their campaign around: that civil partnership, introduced in Ireland in 2010, gave same-sex couples similar protection to married couples.

Civil partnership and marriage have a lot in common, but there are also key legal differences between them. Civil partners enjoy extensive rights that are similar or identical to those of married couples in areas such as property, tax, social welfare, maintenance, immigration and pensions.

Adoption and guardianship

Some of the clearest differences, when partnership was introduced, were in areas such as adoption and guardianship, but the enactment last month of the Children and Family Relationships Act eliminated those differences.

What remain are at least 21 legal differences, according to Dr Fergus Ryan, lecturer in law at NUI Maynooth.

For example, civil partners are not entitled to a judicial separation. It’s not clear whether next of kin rules apply to them. Married spouses cannot normally be compelled to give evidence against each other in a court of law because discussions between spouses are said generally to be “privileged”. This entitlement does not extend to civil partners.

In addition, it is easier to exit a civil partnership than a marriage. “With marriage, couples have to have been living apart for four out of the previous five years to divorce. By contrast, with civil partnership dissolution, the partners have to live apart for two of the previous three years,” Dr Ryan has written. “The rules relating to the recognition of foreign dissolutions of civil partnership are also significantly different from those applying to foreign divorces.”

More broadly, marriage enjoys more legal protection than civil partnership. As the latter exists only as a piece of legislation, it can be repealed by the Oireachtas at any time. Families enjoys Constitutional protection, and that confers rights on couples who get married.

The most obvious difference, of course, is in the name itself. Same-sex couples who formalise their union must go through a different process to opposite-sex couples; in effect the State is saying that it regards their union as qualitatively different to that of an opposite-sex couple. The No side believes there’s nothing wrong with treating two types of union differently.

 

Heart of argument

For the Yes camp, however, equality is at the heart of the argument. It argues that, far from making gay and straight couples equal, as Healy Eames contended, civil partnership’s very existence amounts to a declaration by the State that same-sex and opposite-sex unions are not to be granted the same status.

 

It is a bespoke and more limited legal arrangement, a category of recognition expressly designed so as not to be marriage.

Family law specialists know precisely what civil partnership means, but everyone knows what marriage is, because, notwithstanding the fact that many heterosexual couples choose never to get married, the institution remains society’s way of recognising a loving, long-term relationship.

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