Civil Partnership for Same Sex Couples, and,
the Rights of Couples living together.
The President of Ireland signed into Law the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, on the 19th of July, 2010.
The Minister of Justice has indicated that “This is one of the most important pieces of Civil Rights Legislation to be enacted since Independence. It’s Legislative advance has seen an unprecedented degree of unity and support within both Houses of the Oireachtas.
This Act provides enhanced Rights and protections for many thousands of Irish men and women. Ireland will be a better place for its enactment. This new law provides for the first time, legal recognition for same-sex couples in Ireland. It is of tremendous social significance, for the couples who can now register as Partners, for their friends and families – ultimately, for all of us.”
The Act, while signed into Law, does not take Legal effect until such time as a Ministerial Order is signed, by the Minister for Justice.
This is not expected to happen until changes are made to the Tax and Social Welfare Code, in the next Finance and Social Welfare Bills. Therefore, while the Act, is signed into Law, it has no Legal force, or, effect yet.
There are two strands to the Act as follows;-
Strand One. - Civil Partnership.
This deals with the introduction of Civil Partnership for same-sex couples. It allows same-sex
couples to formally register a Civil Partnership between them. The Act also deals with how a split between a same-sex couple which was registered as a Civil Partnership, will take effect.
A Civil Partnership is very like a Civil Marriage, in that the Civil Partnership only ends when one of the Partners dies, or, the Civil Partnership is dissolved by the Court. The Act sets out the rules which are required, by way of Formalities, in relation to Registering the Civil Partnership.
Very importantly, the Act introduces, for the first time, a range of Financial and Property Rights to include provision for Maintenance, Pension Provision, and, Inheritance Entitlements.
If a Civil Partnership dissolves, then the Parties can go to Court, and the Court can make Orders very similar to those currently available in Judicial Separation or, Divorce with Civil Marriages.
There is no reference, however, to children, or, dependants of Civil Partners when assessing what provisions should be made for the Partners when the Civil Partnership is being dissolved by the Courts.
The Inheritance Rights for Civil Partners are equivalent to those of married spouses.
Second Strand, - Cohabiting Couples.
A Cohabiting Couple is a couple of either, the same-sex couples, or, the opposite sex who are either unmarried, or, in the case of the same-sex couples have not registered a Civil Partnership.
The Act imposes Rights and Obligations upon these individuals, unless the couples specifically choose to opt out of the Act.
The Act has set up a “Safety Net Scheme”. The aim of this is to protect the vulnerable or, financially dependant party at the end of a long term relationship. The reliefs available are extremely extensive, and, go as far as including Orders in relation to Property, Maintenance, Pension, and, getting a slice of a person’s Estate upon death.
The dependant Partner has the Right to go to Court, to seek these Orders. There is no automatic right or, entitlement to the Orders. It will be interesting to see how the Act performs when it is enacted, and, how the Courts will apply their Discretion as to whether, or, not these entitlements will be granted in each case depending on the facts.
For the Act to apply to Cohabiting Couples, then the parties must be “Qualified Cohabitants”
The Act defines such Parties as being an unmarried couple, who have been in an Intimate Relationship for a period of 5 years, or, 2 years where there is a child, or, children of the Relationship.
The Courts can take into account the length of the Relationship, and, the various contributions by each cohabitant to the relationship, financial or otherwise.
The Act allows the Parties also to opt out of the Safety Net Scheme, where they have signed a cohabitant agreement, provided that both of them have had the benefit of independent Legal Advice.
The Legislation will have a huge impact socially, and, legally. It will be extremely interesting to see how the Courts deal with this new Legislation, both in relation to Civil Partnerships, and, in relation to Cohabiting Couples.
Patrick Mullins,
Partner.
MLB Solicitors
Melbourne House
Model Farm Road
Cork
IRELAND
