Labour Spokesperson on Constitutional Matters and Law Reform
Speaking in the Dáil on the Civil Unions Bill Motion
31 October 2007
EMBARGO 7PM
RULES OF LAW APPLYING TO MARRIAGE SHOULD ALSO APPLY TO CIVIL UNIONS
Ceann Comhairle,
It is with a feeling of déjà vu that I propose the motion in my name and
those of my Labour colleagues to restore to the Dáil Order Paper the
Civil Unions Bill 2006.
Members will recall that this Bill was debated in February of this year;
and in what I regarded as a cynical exercise the then Minister for
Justice, Equality and Law reform proposed a reasoned amendment. That
amendment while allowing the Bill to pass second stage postponed its
passage beyond the time limit of that Dáil. In effect the Bill fell
with the last Dáil.
I believed then as I do now that a majority of deputies in this House
support this equality measure. It is time therefore to stop talking
about equality and to legislate for it.
The purpose of the Bill is to provide for the recognition and legal
registration of civil unions. Civil union is defined as “a conjugal
status relationship… by virtue of which two persons of the same sex
receive the benefits and protections and are subject to the same
responsibilities, of parties to a marriage”.
There are many Irish citizens in stable long-term partnerships who are
denied legal recognition; who are denied the protections and rights of
loving couples simply because of their gender. We have progressed a long
way in Irish society. I firmly believe that most people today would
have no difficulty in supporting the provisions of this Bill and taking
this major step to ensuring equality for all Irish citizens.
Under the constitutional understanding of marriage and in accordance
with current law, persons of the same sex cannot marry each other.
This Bill does not alter or seek to alter the current constitutional
understanding of marriage. The Bill seeks instead to create an
equivalent status relationship for the benefit of persons of the same
sex. In simple terms, it provides that in most respects, the rules of
law that apply to marriage will apply also to civil unions.
Article 41.3.1° of the Constitution states that: “the State pledges
itself to guard with special care the institution of marriage, on which
the Family is founded, and to protect it against attack.” We believe
that this Bill does not offend against that provision since it caters
for people who cannot marry and so it is in no way in competition with
the constitutional definition.
When this Bill was previously debated some sought to confuse this issue.
This Bill provides a secure legal framework of recognition to same sex
couples for whom marriage is not available.
The former Justice Minister in his amendment noted, that the Bill
appears to be unconstitutional but did not provide in his speech any
convincing argument for that view. So if that is a view to be put again
- let’s see the case for it.
Presumably those who believe that this measure would undermine the
institution of marriage are not saying that citizens of a homosexual
orientation should reconcile themselves to heterosexual marriage; or
arguing that offering civil unions to same sex couples would lure
heterosexuals away from marriage. So on what possible basis can it be
argued that making specific provision for same-sex couples would have
any effect on an institution which is confined to opposite sex couples?
I believe that this Bill or one like it will soon become law and in
future years we will again look back and wonder why the fuss.
Let me set out the details of the Bill.
Firstly, we propose that the general law as to capacity to enter a civil
union would be the same as capacity to marry; with similar restrictions,
i.e. underage, previous, valid marriage or union, mental in capacity or
closeness of blood relationship.
We provide similar legal provision for notification, solemnisation and
registration of a civil union to that of marriage under the Civil
Registration Act 2004. We provide that where a religious registered
solemnise has a conscientious objection to presiding he/she will not be
required to so preside. This of course does not apply to civil
registrars.
The Bill deals with the benefits and responsibilities of parties to a
civil union. The essential purpose is to provide that parties to a
civil union are entitled to the same rights, privileges and benefits and
are subject to the same obligations as those to which spouses in a
marriage are entitled or subject. In particular the Bill provides that
parties to a civil union are responsible for the support of one another
to the same degree and in the same manner as is provided by law for
married persons.
We propose that the rights and obligations of parties to a civil union
with respect to a dependent child be the same as those of a married
couple with respect to such a child.
The Bill deals with such issues as pre-nuptial agreements; the
recognition of foreign civil unions; civil union break-up and other
related issues. In general the Bill applies the various aspects of
existing family law to civil union relationships.
I know that one area of particular focus is the issue of adoption. We
felt that this Bill should be as comprehensive as possible and we
carefully examined this matter.
Our examination led us to propose a general amendment to the law of
adoption. We set out for the first time in law basic principles or
criteria for adoption. These principles would have general application
in all adoption cases.
The subsection provides that in any decision on or relating to an
application to adopt a child due regard shall be had to – the principle
that the first and paramount consideration is the best interests and
welfare of the child, throughout his or her life.
We set out in some detail the child focused criteria that must be
considered:-
- the child’s ascertainable wishes and feelings regarding the decision,
considered in the light of the child’s age and understanding;
- the child’s particular needs;
- the likely effect on the child, throughout his or her life, of having
ceased to be a member of the original family and become an adopted
person;
- the likely effect on the child, throughout his or her life, of having
become an adopted child of the person or persons who applied to adopt
that child;
- the child’s age, sex, religion or religious background, national
origin and cultural and linguistic background and any other relevant
characteristics;
- any harm which the child has suffered or is at risk of suffering;
- the relationship which the child has with relatives and with any
other relevant person, including the likelihood of any such relationship
continuing and the value to the child of its doing so;
- the ability and willingness of any of the child’s relatives, or of
any such person, to provide the child with a secure environment in which
the child can develop and otherwise to meet the child’s needs;
- the wishes and feelings of any of the child’s relatives, or of any
such person regarding the child;
- the child’s right to know the identify of his or her parents as far
as practicable to be brought up by his or her parents and each of them
or by other family members.
This provision is in accordance with the child welfare amendment
published by the government and proposed to be examined by an all party
committee vis 42.(A)
4. Provision may be made by law that in proceedings before any court
concerning the adoption, guardianship or custody of, or access to, any
child, the court shall endeavour to secure the best interests of the
best interests of the child.
In essence our proposal is that in any adoption case the paramount
consideration is the welfare of the child.
Finally, the Bill makes provision for similar recognition in terms of
existing practices and regulations for same sex cohabiting couples as
cohabiting couple of different gender.
I have said that this Bill is reasonably narrow in its focus. It seeks
to deal with same sex couples.
Other issues need to be addressed separately and should not be brought
into this debate to cloud the issue. The Bill does not address the
position of cohabiting opposite sex couples, nor does it aim to do so.
That is for another day.
The Bill under discussion tonight has been informed by the debate and
expert consideration in recent times, most notably the Colley working
group. What Ms Anne Colley and her group recommended, was that full
civil partnership for same-sex couples was viewed by the group as a
distinct institution, separate from and not competing with marriage.
Let us tonight and tomorrow in this house respond to a social and human
need for thousands of our citizens. Hardworking, taxpaying members of
all our communities who wish simply to get on with their lives. Who
wish to have their sexual orientation respected and their partnerships
legally recognised.
I hope that members on all sides respond to that need with generosity
and understanding.
I commend this motion to the House.
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