Marriage by default and the Civil Partnership Bill 2009

[Updates at end.] The Civil Partnership Bill 2009 is one of the most significant pieces of legislation ever proposed in Ireland and, if passed, will rank alongside the Succession Act 1965 and the Family Law (Divorce) Act 1996 in that context. Introducingthe second stage of the Bill in the Dáil, the Minister for Justice, Equality and Law Reform said:

My own party’s 2007 manifesto contained the clear commitment that, “based on our republican ethos and building on the agenda for equality to which we are committed” Fianna Fáil, if re-elected, would introduce civil partnership legislation in order that same sex couples could live in a supportive and secure legal environment. Today, through the Civil Partnership Bill 2009, the Government responds to these commitments.

The Bill has attracted a good deal of controversy and debate: almost all relating to the provisions affecting civil partnership. It is understandable that the elements of the Bill most relevant to same-sex couples will consume most of the attention given to the legislation, but this is at the expense of provisions which are almost as significant and which affect all genders and orientations.

Marriage, though mostly thought of in terms of emotional bonds and religious significance, is primarily a legal status which confers benefits and imposes obligations on the parties to the marriage. Marriage has legal consequences for a wide range of personal issues including finances, children, inheritance and domestic violence.

Most of these benefits and obligations do not arise in the case of non-marital relationships, especially when there are no children of the relationship. The phrases “common law wife” and “common law husband” have no legal significance. The Bill, however, proposes to legislate for a form of common law marriage by imposing consequences on parties by default; most likely without the knowledge of many persons likely to be affected.

Part 15 of the Bill deals with the rights of cohabitants, defined as adults living together as a couple in an intimate and committed relationship. You might wonder what constitutes “an intimate and committed relationship”. It is not defined, but section 170(2) sets out the criteria to be considered when determining whether or not two persons are cohabitants. Subsection (3) clarifies that sexual activity is not a determinative factor.

The consequences of the Bill arise in the case of “qualified cohabitants”: cohabitants who, immediately before their relationship of cohabitation ended (whether through death or otherwise) were living together as a couple for three years or more. This qualification period is reduced to two years when the couple have had a child. When a cohabitation relationship breaks down, a qualified cohabitant will have two years in which to bring applications to the courts for maintenanceproperty and/or pensionadjustment orders, similar to those applications a separated spouse or civil partner can make.

It is claimed that section 199 of the Bill allows cohabitants to opt-out of Part 15. That section provides:

Notwithstanding any enactment or rule of law, cohabitants may enter into a cohabitants’ agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise.

Such an agreement can provide that neither party may apply for relief in the terms outlined in Part 15. However, for the agreement to be valid certain criteria must be satisfied:

  1. the cohabitants must each receive independent legal advice before entering into it, or receive legal advice together and waive in writing the right to independent legal advice;
  2. the agreement must be in writing and signed by both cohabitants; and
  3. the general law of contract must be complied with.

So: anyone wishing to cohabit who does not want Part 15 to apply to them will have consider the legislation within the first 2 or 3 years of cohabitation, visit their solicitor(s) and enter into a quasi-prenuptial agreement.Ironically, the legal status of prenuptial agreements in Ireland remains uncertain, yet the same type of agreement is being legislated for in the case of parties who have not entered into a formal relationship.

Even if a cohabiting couple have the foresight and diligence to enter into a cohabitation agreement, a trapdoor awaits in section 199(4):

The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice.

Therefore, a qualified cohabitant can never be certain as to whether Part 15 will apply or not; at least not until the relevant two/three years have passed from the breakdown of the relationship and an application can no longer be made for relief.

Two leading academics have publicly called on the Government to drop Part 15.

Ruth Deech, professor of law at London’s Gresham College, said the Irish law was set to be a “windfall for lawyers but for no one else except the gold-digger”. She said it was wrong to impose the penalties of a “failed marriage” on couples who may be trying out their relationship before marrying. “There should be a corner of freedom where couples may escape family law with all its difficulties. Cohabitation is not marriage, now or historically,” said Prof Deech, a vocal critic of regulating domestic partnerships.

While most family lawyers and academics here broadly welcome plans to protect vulnerable cohabitants, many have serious concerns over the detail. UCC law professor John Mee said the aspects of the Bill relating to cohabiting couples should be scrapped, as they could do more damage than good.

“The well-meaning, but seriously flawed, redress scheme should be scrapped and any immediate reform should be targeted on specific areas such as succession and taxation,” he said. “This kind of limited scheme may create a false sense of security for cohabitants, who may assume that the new law will protect them and fail to take steps to safeguard their separate property rights,” Prof Mee said.

Prof. Mee, who has written about the need for legislation to deal with cohabitation for a long number of years, outlines the difficulties as follows (The Property Rights of Cohabitees, quoted in the 10th Report of the All-Party Oireachtas Committee on the Constitution):

The whole question is a very difficult one, since people’s motives may change over time. Consider the case of a couple who move in together at an early stage in their relationship, seeing their cohabitation as a trial period before a possible marriage. If, for some reason (probably the reluctance of one partner) they never actually marry, they will not necessarily separate. Many of the cases in this area involve relationships which drift on for many years, even after it has become apparent that the originally envisaged marriage will never take place. Such a relationship begins as a ‘trial marriage’ and ends, in effect, as an alternative to marriage.

The All-Party Committee, having examined the issue of cohabitation, concluded:

It can be inferred that cohabiting heterosexual couples, who by definition have opted out of marriage, would expect the state nevertheless to respect their family life and protect it.

This may be correct, but how far would unmarried couples expect such protection to extend?

Part 15 of the Bill represents a significant change to the law and will affect a huge swathe of the population. It deserves to be drafted and debated as an independent piece of legislation.

Updates & more

  • The Irish Farmers’ Association called on the Government to withdraw Part 15 of the Bill (1 April 2010).
  • The IFA press release was followed very quickly by indications that the Government would change the name of the Bill to the Civil Partnership and Cohabitation Bill (4 April 2010). It may also lengthen the qualification period for cohabitants to five years.
  • Suzy Byrne has blogged about the IFA comments and the proposed changes over on Maman Poulet.
  • Prime Time ran a segment on 6 April 2010 covering Part 15 and featuring Professor John MeeMuriel Walls and Geoffrey Shannon. It was followed by a panel discussion with John WatersJohn Bryan and Ivana Bacik.
  • The Irish Times ran an editorial about Part 15 on 7 April 2010.
  • Dr. Fiona de Londras wrote about Part 15 over on the Human Rights in Ireland blog. She makes the case for default obligations, subject to an appropriate awareness campaign.

20 thoughts on “Marriage by default and the Civil Partnership Bill 2009

  1. Would it not be perfect if both Marriage and Civil Partnership were open to both same-gender and mix-gender couples?
    Marriage with parental rights, including the added possibility to adopt the child of the other spouse; civil partnership for financial commitments without parental rights?

    But as long as marriage is not open to same-gender couples, thus trampling the rights of children raised in such households, civil partnership needs to open parental rights/duties.

    It would be so simple for the gtv to shed their baseless prejudice that extending marriage to same-gender households (family=teaghlach in the Irish text) needs a referendum… and just open marriage to same-gender couples.
    If people feel it is anti-constitutional and that it arms their own constitutional rights, then they can try a constitutional challenge.

    But how could the constitutional rights of children to have a married family injure in any way, shape, or form the constitutional rights of any descent citizen?

  2. Thank you for visiting the blog and leaving a comment, though I believe it might belong on another post. The issue outlined in my post is the effect of Part 15 of the Bill on all couples, of any gender and orientation, who choose to live together.

    The same-gender partnership debate is a separate one – this website has very good coverage of the Bill’s progress:

  3. I have a question that you may be able to answer with regard to the CP Bill section on cohabitation will this section apply to people who are currently and have been cohabiting?

    Will it apply retrospectively? or will it only apply to people who begin cohabiting after the law is enacted?

  4. The ‘quasi-prenup’ idea is a typical lawyer’s solution. I really cannot envisage many couples (with the possible exception of cohabiting solicitors!) actually concluding such an agreement. The fact that advice has to be taken makes this a costly option, and most parties are unlikely to understand the legal consequences of living together. Plus, it’s hardly the most romantic of steps!

    Placing the law regarding the division of co-habitee property on a clear statutory basis has something to recommend it, the current system of resulting trusts is somewhat unsatisfactory, particularly since contributions through work in the home are not taken into account. Though, that said, Part 15 seems pretty free wheeling in its scope, with no real guidelines as to how this power is to be used.

    In any event, I can see a constitutional challenge coming down the line here – increasing the protection to co-habitees could be regarded as a incentive not to get married, falling foul of Murphy v. AG.

  5. @Ian: Good question. Section 204 says that the time spent cohabiting as a couple is included when considering if someone is a qualifed cohabitant.

    As far as I am aware Minister Ahern wants the Bill passed before the summer recess.

    Section 205 provides that an agreement entered into before the commencement date may be enforced, so couples who are cohabiting at the moment might want to consider such an agreement (if they were aware of the existence of the legislation).

  6. @Oisín: I think that’s the thrust of Professor Mee’s comments. Legislation may be necessary (particularly in extending the availability of safety & barring orders to cohabitees), but this particular legislation should go back to the drawing board.

    I don’t have access at the moment, but his full assessment is in the Irish Journal of Family Law: Mee J, “A Critique of the Cohabitation Provisions of the Civil Partnership Bill 2009” (2009) 12 IJFL 83-92.

  7. I would agree that the ‘opt out’ approach of signing up a cohabitation agreement is a huge disincentive against marriage for anyone with their thinking caps on.

    With these provisons you can get a pretty solid contract protecting your financial interests, should the relationship break down, on condition you never marry.

    Back to the drawing board indeed and a careful look at the ‘opt in’ approach this time.

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  10. Hay,

    I’d like to know, my father is in a 15 year cohabitant relationship with an irish woman, would it be possible if i could obtain dual citizenship even though they never had a civil partnership ceremony or anything? I’d like to work and live out there for a while and would be good to have duality.

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