Address by the Tánaiste at the launch of the Law Reform Commissions Report "The Rights and Duties of Cohabitants"

I want to thank the President of the Law Reform Commission, Mrs Justice Catherine McGuinness, for inviting me to address the conference this morning to launch the Commission's Report on the Rights and Duties of Cohabitants at what is the Commission's third Annual Conference. It is always a pleasure to come to UCD and especially to this gathering where aspects of the law are being publicly debated by distinguished lawyers, researchers and academics.

In common with many of the projects in the Commission's Programme for Law Reform, the Report on Cohabitants is concerned with issues of real importance for many people. It deals with the intersection of the law, in both the public and private spheres, with personal relationships. It is a comprehensive examination of the law as regards cohabitants and makes recommendations for change in many distinct and diverse areas ranging from property law and succession, to family law, taxation, pensions and domestic violence. Each of the recommended changes is intended to improve the situation of cohabitants particularly at the end of a relationship when people are potentially vulnerable to legal uncertainty and hardship. The Report also contains a draft legislative scheme to implement its recommendations which for all its apparent brevity contains provisions of immense significance.

The starting point is that our laws in general, with some notable exceptions treat cohabitants less favourably than spouses. Our extensive family law code, predicated on marriage, has evolved over the years since the adoption of the Constitution in 1937 and traditionally, family law is founded on a view that cohabiting relationships require recognition and protection only when they consist of married opposite-sex couples.

Changes in the law in recent years take account of non-marital relationships in a number of ways. These include capital acquisition tax provisions relating to principal and private residences and improved guardianship provisions to enable the appointment of an unmarried father as a guardian of his child in certain circumstances. The Domestic Violence Act 1996 also recognises non-marital relationships. Earlier this year, in the employment rights sphere, I provided for amendment of the Parental Leave Act 1998 to include the extension of parental leave to persons in loco parentis to a child and a new entitlement for same-sex couples to force majeure leave to care for their partner in the event of an accident or sudden illness.

Irish society has changed greatly in recent decades and family law has not evolved at the same pace to match the altered social reality. The reality is that many people now reside in domestic relationships which are not founded on marriage. Cohabiting couples accounting for more than one in twelve family units in 2002 as against one in twenty-five in the previous census in 1996. We can safely assume that the 2006 census data will reconfirm this trend when the full statistics are published next year.

The Law Reform Commission Report usefully discusses the objectives and principles underpinning the need for reform of the law. These include the societal benefit deriving from reforms which facilitate and encourage stable long-term relationships, enhance legal security and certainty for cohabitants and protect vulnerable people. The Commission also identifies the need to respect privacy and autonomy.

I read with interest that the Law Reform Commission identifies three particular models for policy makers to consider which are:

  • a status or registration scheme,
  • private contract arrangements and
  • a redress scheme. 

The Commission considers it appropriate to have a tiered approach which incorporates each of these models. It recommends the use of a contract model and a redress model as the basis for reform in addressing the rights and duties of cohabitants. Commissioner Patricia Rickard-Clarke will be giving you the Commission's thinking on this later this morning.

It is interesting to note that the Law Reform Commission has modified its position from that in its Consultation report to recommend now that an existing marriage should not preclude a qualifying cohabitant from seeking redress so long as any rights which an existing or former spouse may have are taken into account. This is a significant departure and one which will require careful study.

The Law Reform Commission Report leaves aside registration on the basis that the Working Group on Domestic Partnership established earlier this year was considering this issue along with a range of other options. The Options Paper on Domestic Partnership published earlier this week describes some such schemes and again Anne Colley who chaired the Group will be addressing you on the details this morning also. The Commission notes that if an opt-in registration scheme was made available, the needs of cohabiting couples who choose not to register or marry would not be addressed unless other modes of protection were put in place. Legislative reform in this area might then include a civil registration scheme alongside the contract and redress models recommended in the Report. Such an approach, it is being suggested, would allow cohabitants to either opt-in to a set of rights and duties towards each other and attain a formal and public status or make a contract while a failure to do either of these would trigger the redress scheme.

The scope of the Law Reform Commission Report and appended Draft Legislative Scheme covers unmarried opposite and same-sex couples living together in an intimate relationship. The focus of the Options Paper on Domestic Partnership is broader extending to the different kinds of cohabiting relationships, including relationships with no element of intimacy, which create social and economic dependencies for those involved. In my view people in such relationships may also need legal protection and recognition for what is de facto a relationship based on a community of property or income. The contract model proposed by the Law Reform Commission could apply equally well to these types of relationship.

The Government's view is that it is beneficial for those in cohabiting relationships, and for society, to provide some form of recognition for unmarried cohabitation. Some elements of this framework may resemble some of the attributes of marriage in law but in other respects differ substantially from marriage. A cohabiting opposite-sex couple may want to stay outside the legal marital relationship but may nevertheless want to create some mutually enforceable rights and obligations in their dealings with each other and with society in general. On the other hand gay and lesbian couples are excluded from marriage and cannot make a full legal and social commitment to each other. Just like opposite-sex couples, many gay and lesbian couples may want to create mutually enforceable rights and obligations towards each other and to be recognised within society. There is also the case of cohabitants with no sexual dimension to the relationship, but whose relationships are often accompanied by social and economic interdependencies for the persons involved.

I believe fairness demands that the rights of people in these relationships need to be considered.

The Taoiseach has unequivocally stated that the Government favours treating gay people as fully equal citizens in our society. My strong view is that significant improvements can be made within the fundamental context of the requirements of the Constitution and that a legal framework in which non-married couples can live in a mutually supportive and secure legal environment is achievable. I am confident that the Commission's Report and the Colley's Group's Options Paper, now open for public consultation and debate will assist the Government in the formulation of policy in this area. This Conference today, arranged at the initiative of the Commission in consultation with my Department is a spur to that debate. I thank the President of the Commission for using her good office to identify and help clarify the issues.

Finally it is only left to me to formally launch the Law Reform Commission Report on the Rights and Duties of Cohabitants and to wish you a productive and informative conference.

 


1 December 2006