Something short of marriage?

It is crucial we start a debate on extending the rights of cohabiting couples, whether or not they are same-sex, writes John …

It is crucial we start a debate on extending the rights of cohabiting couples, whether or not they are same-sex, writes John Mee.

Recent litigation by a lesbian couple seeking recognition of their Canadian marriage and now comments by the Taoiseach have stimulated debate about the legal status in Ireland of same-sex couples and unmarried cohabitees generally.

Despite a common misapprehension, the law does not recognise the notion of a "common law marriage" which would confer rights after a certain period of cohabitation.

However, change may be in the air. In April, the Law Reform Commission published a Consultation Paper on The Rights and Duties of Cohabitees which provisionally proposes sweeping reform.

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In considering how the law might be changed in this area, it is important to think specifically about the different types of relationship at issue. Same-sex couples are in a special position since they do not have the option to marry. The trend in Europe in recent years has been to allow same-sex couples to enter into civil partnerships which carry some of the rights associated with marriage (with the extent of the rights depending on the terms of the legislation in the country in question).

A smaller number of jurisdictions have gone further and permitted gay marriage. The British government is in the process of introducing civil partnership legislation for same-sex couples, although this has run into some problems in the House of Lords.

In light of modern conceptions of equality (recognised in the Constitution and reinforced by the European Convention on Human Rights), it is difficult to argue against, at the least, the introduction of a civil partnership scheme for same-sex couples in Ireland.

Some will fear that this would undermine the institution of marriage. However, a crucial aspect of marriage is the unique symbolic affirmation it gives to a relationship. A civil partnership scheme falls short of affording this special affirmation to same-sex relationships (and for this reason many gay activists would argue that it does not go far enough).

What such a scheme would do is extend to registered couples some of the legal regulation which currently governs only married couples. Much of this legal regulation is of very recent vintage and cannot plausibly be regarded as an intrinsic attribute of marriage. To take one important example, the legislation allowing for the redistribution of property upon marital breakdown dates back only to 1989.

It is important, however, to recognise that introducing civil partnership (or gay marriage) would not address all the issues in this area. There would remain a substantial number of heterosexual and same-sex couples who, for a variety of reasons, do not choose marriage, or would not enter a civil partnership.

In its consultation paper, the Law Reform Commission provisionally proposes a legislative scheme which would confer rights on couples, including same-sex couples, who have lived together in a marriage-like relationship for at least three years (or two years where there is a child of the relationship).

Under these proposals, broadly based on existing New South Wales legislation, a qualifying couple would automatically gain rights across a wide range of areas, including property adjustment, maintenance, taxation, pensions, succession, and domestic violence.

Unfortunately, the LRC declined to address the important question of whether their proposals would operate in addition to, or instead of, a civil partnership scheme.

A significant problem with the LRC proposals is that they assume that the special protection for marriage in Article 41 of the Constitution would require the exclusion from the scheme of cohabitees who are married to a third-party, even if that marriage is dead for all practical purposes.

Such an exclusion (which arguably is not, in fact, required by the Constitution) would cause the scheme to operate in an unacceptably discriminatory manner.

Moreover, it could lead vulnerable cohabitees to believe they are protected, whereas in fact (because, for example, they or their partner is only judicially separated and not divorced) they would have no protection. It is significant that the constitutional provisions on marriage have had an adverse influence on the LRC's proposals.

Those provisions have also led one High Court judge to hold that attempts by cohabitees to regulate their rights by contract are void under the Constitution.

Moreover, the Constitution could conceivably create obstacles to the introduction of a civil partnership scheme. Because of all this, there is a pressing need to modernise the constitutional provisions on the family, and one can only welcome the recent engagement of the Oireachtas Committee on the Constitution with this issue.

In trying to suggest the best way forward for the law, it must be recognised that increased legal regulation is not the answer to all problems. It is unclear whether Irish society is ready for the imposition of rights and duties on cohabitees who have not chosen to enter into any formal commitment.

While rates of cohabitation have risen sharply in Ireland in recent years, the Irish figures put us in the lower third of countries in Europe in this respect.

Other European countries, including Britain where cohabitation rates are far higher, have generally been unwilling to introduce the sort of automatic regime proposed by the LRC, restricting themselves to the introduction of civil partnerships schemes.

An obvious first step would be to try, through a publicly-funded programme of advertisements, to raise public awareness of the very limited legal regulation of relationships outside marriage.

In tandem with this, one could put one's reforming energy initially into the introduction of civil partnership legislation, identifying and (hopefully) dealing with any constitutional obstacles on the way.

This would leave open the possibility of later introducing a wide-ranging scheme to regulate the rights of couples who have not chosen to marry or to register a civil partnership (without prejudice to the possible introduction in the shorter term of more focused reforms in particular areas).

It is difficult to be categorical in making recommendations in this area because of the complexity of the issues and the wide range of possible human relationships.

However, increased debate on the subject, usefully informed by the LRC's consultation paper, must be the best way to develop a just and workable solution.

Dr John Mee is a senior lecturer in the Law Faculty, University College, Cork, and author of The Property Rights of Cohabitees (Hart Publishing, 1999) and co-author of The Partnership Rights of Same Sex Couples (Equality Authority, 2000).