‘We Have Civil Partnership, Don’t Redefine Marriage,’ declare posters from the No side in the forthcoming referendum, but there are major disparities between the two, explains Dr Fergus Ryan.
One of the No campaign’s strategies is to suggest that civil partnership is equal to marriage, and that the referendum is therefore a needless redefining of marriage. In this context it is important to know the differences between civil partnership and civil marriage, and the resulting inequalities.
Civil partnership was introduced in 2010 to address the near-total absence of legal recognition and protection for same-sex couples that prevailed prior to its introduction. It was designed largely to mitigate the current exclusion of same-sex couples from marriage.
Civil partnership is confined to same-sex couples only. The parties must be aged 18 or over, must not be closely related, and cannot already be in a marriage or another civil partnership. The process for entering into civil partnership is much the same as for marriage, except that it can only be formalised by a civil registrar.
Civil partnership certainly provides extensive rights and obligations. It offers equal treatment with marriage, for instance, in the context of taxation, social welfare, pensions, citizenship, property, domestic violence, and maintenance. Largely equal treatment applies in the context of inheritance.
Civil Partnership nonetheless differs from marriage in a number of important respects. Some of these differences initially related to children being raised by civil partners. The recently enacted Children and Family Relationships Act 2015 removed most of these particular examples.
Nevertheless, a number of significant differences remain.
The most significant issue is that civil partnership does not attract the protection – and in particular the freedom from undue state interference – that the Constitution gives to marriage. It is worth contemplating, for instance, that while a future Oireachtas could abolish civil partnership, it could not abolish marriage without a referendum.
Civil partners and their children, notably, are not a family for the purpose of the Constitution. For children being raised by civil partners, the protection of the family provisions of the Constitution is thus denied permanently. While this is also the case for cohabiting couples and their children, heterosexual cohabitants may remedy this problem by marrying.
Different names are used for the home in which civil partners live – it is called a ‘shared home’ instead of the phrase ‘family home’ that normally applies to a married couple’s home.
Legal safeguards for engaged couples do not apply to intending civil partners. While civil partners may be forced to testify against one another in court, spouses enjoy a marital privilege that (with some important exceptions) exempts them from being compelled to do so. Similarly, the right to sue in respect of injury to one’s spouse applies only to spouses and not civil partners. While civil partners are treated largely the same as spouses in the context of inheritance, a question mark arises as to whether civil partners would be treated as ‘next-of-kin’ when a civil partner is critically ill and in hospital. Likewise, while spouses can seek and obtain a judicial separation, civil partners cannot. These are just some of the differences. There are many more.
Generally, spouses outrank civil partners in family legislation. Some safeguards in divorce legislation for the family home of spouses, for instance, do not apply to the shared home of civil partners.
Far and away the most telling example is that the rules for ending civil partnerships are significantly different from those applying to marriage. With marriage, couples (amongst other conditions) have to have been living apart for four out of the previous five years in order to divorce. By contrast, with civil partnership dissolution, the partners have to have lived apart for two of the previous three years.
Additionally, to end a marriage, a court must be satisfied that there is no reasonable prospect of reconciliation. Before papers are lodged for divorce, moreover, the solicitor for each side must certify that she has advised her client on alternatives to divorce. With civil partnership, by contrast, it is legally irrelevant whether the parties are reconcilable. There is, in particular, no obligation to advise the civil partners on alternatives to ending the civil partnership. There is no requirement that the civil partners be irreconcilable.
All this signals that civil partnership, for all the benefits it offers, is of a significantly lesser status when compared with marriage. Combined with the lack of constitutional recognition, the implication is that civil partnership is the inferior of marriage, similar in many ways but not worthy of the same elevated status. This in turn implies that those to whom it is offered – couples of the same-sex – are somehow considered by the law to be of less worth than their opposite-sex counterparts.
Dr Fergus Ryan is a lecturer in law at Maynooth University, Co. Kildare, and the author of a text on civil partnership. He writes in a personal capacity.
© 2015 GCN (Gay Community News). All rights reserved.