Two important and thought-provoking documents on legislating for the recognition of cohabitants, including same-sex couples, have just been published - one from the Law Reform Commission, the other from the Working Group on Domestic Partnership. Publication follows a clear Government commitment to examine this issue sympathetically.
According to the 2002 Census, there were over 77,000 cohabiting couples in the State, a figure which is likely to have increased in the intervening four years. More than a third of them had children. Almost 2 per cent of them were same-sex couples.
The problems such couples face when things go wrong - through the death or illness of one of them or through the relationship breaking up - are legion, and can include homelessness and penury for the vulnerable partner and children of the relationship. Even where one partner attempts to provide for the other, a raft of tax and other regulations exist to thwart that intention. Both the working group and the Law Reform Commission have put forward proposals for addressing these problems.
The working group examined a number of options, ranging from limited civil partnerships to full civil partnerships that would closely resemble marriage. It also outlined the option of marriage for same-sex couples, but warned that this is vulnerable to constitutional challenge, given that the courts have interpreted the constitutional definition of marriage as the voluntary and permanent union of one man and one woman. It saw no such difficulty with full civil partnerships for same-sex couples, though this option might be problematic for opposite-sex couples, as it would set up a competing institution to constitutionally protected marriage. A limited civil partnership would allow couples to choose the range of duties and responsibilities to which they signed up.
The Law Reform Commission is primarily concerned with the protection of the vulnerable parties in a situation where there is no civil partnership. It stresses that its proposals complement, rather than compete with, those of the working group. The commission states that cohabiting couples should be encouraged to make agreements on financial matters. It also says that there should be general recognition of cohabitants - defined as those who live together for three years, two where they have children - in tax law, social welfare law, private tenancy law, in the health care system and in domestic violence law. A redress system should exist for those left economically vulnerable at the end of a relationship.
Together these proposals provide a framework for long-needed legal reform in this area. Some campaigners for the rights of same-sex couples have urged immediate progress on their right to marry. A decision of the courts is awaited on this issue, and it is a demand that must be listened to sympathetically. But it cannot delay action on the pressing matter of providing immediate protection to those whose domestic partnerships, often lasting decades, end through death or separation.