Finance (No. 3) Bill 2011 (Certified Money Bill)
Finance (No. 3) Bill: Committee and Remaining Stages
Senator Ivana Bacik: I welcome the Minister, Deputy Michael Noonan, to the House. We all very much welcome this Bill. It was very evident on Second Stage how much support there is for it across the floor of the House. It is clearly designed to give effect to the commitments in the programme for Government following from the passing of the civil partnership legislation. We all very much welcome that. On Second Stage, Senator Zappone put forward some very constructive and useful proposals as to how relatively minor amendments might be made.
This recommendation is one that may deserve further consideration given that it would, if accepted, make very little change to section 1. It simply proposes to change “in fact living separately and apart” to “in fact separated”. Has the Minister had an opportunity to review that and consider whether the current wording is the best means of describing what is intended?
Senator Ivana Bacik: I refer to the Minister’s response to the previous recommendation and his point, clearly correct in law, that the status of separation does not exist for civil partners. Senator Zappone is correct to point out that this means there is no parity between civil partners and spouses. However, is judicial separation a desirable process? That we have such a developed law on judicial separation is a consequence of the fact that we did not have divorce in this country for so long and separation was seen as filling a gap that would have been unnecessary had divorce been introduced earlier than 1995 following a referendum. Like Senator Zappone, I feel we should give effect to same sex marriage and the civil partnership Act did not go far enough. I rehearsed the argument when we debated the legislation in the House and, while I welcomed it, it does not provide for full equality.
I wonder whether separation is an equality principle that is desirable to seek, given married couples can still seek judicial separation. Is it necessary for us to provide this for civil partners? I acknowledge what Senator Zappone is trying to do with these recommendations. I am not sure it would be a positive gain in practice for civil partners to have a mechanism inserted into the civil partnership Act that would allow for separation for civil partners along the same lines as that available for married couples.
Senator Ivana Bacik: I pay tribute to Senator Zappone. It is welcome that the Minister has accepted that the recommendation raises an issue which needs to be addressed. I apologise for going off on a tangent about the judicial separation regime, which is a different issue, albeit one which I always considered to be a feature of the absence of divorce in this country. It is important that we ensure individuals are covered in the period where there has not, as yet, been a formal dissolution of the civil partnership under the 2010 Act. This important principle is at issue in the recommendation proposed by Senator Zappone. It would be useful if the recommendation were adopted or at least reviewed with a view to adoption before December. I await the Minister’s comments on the matter.
Senator Ivana Bacik: I am grateful to Senator Katherine Zappone for raising this issue. The absence of protections for children in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was raised by me, Senator Norris and others in this and the other House during the debate on that legislation. The Ombudsman for Children published a robust critique of the absence of protection for children in the civil partnership code. There were only two references to children in the Act.
The recommendations put forward by Senator Zappone address a gap in protection for children and highlight that the provisions in the civil partnership code do not go far enough. Section 73 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provides for certain succession rights of children of a civil partner, while section 129 allows a court to have regard, on the dissolution of a partnership, to a child to whom either civil partner owes an obligation of support. However, there is nothing in the legislation to address the gap identified by Senator Zappone in terms of the lack of parity in the treatment of maintenance payments to children of married couples following divorce as against the children of civil partnerships following dissolution.
I urge the Minister to consider how this gap can be addressed. I said on Second Stage in the debate on this Bill that further legislation is necessary in any case to deal more broadly with the rights and responsibilities of civil partners vis-à-vis the children of their families. This was an issue identified by many people during the debate on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. There are broader issues to address apart from the issue raised in Senator Zappone’s recommendations. It will require further legislation to equate the position of children of civil partners with those of married couples. Senator Zappone would accept that her recommendations will not achieve parity between children of gay couples and children of married couples. However, the recommendations do address a particular disparity in treatment.
Senator Ivana Bacik: It is clear that the flaw lies with the original Bill and the absence of a reference to children there. This is a tax measure and I accept the Minister’s point that perhaps the changes proposed to provide for parity between children of civil partners and children of married couples go beyond the scope of a tax Bill. That is in line with the general principle, but it is disappointing that provision cannot be made to a greater extent for children of civil partners. As I said earlier, we need general, standalone legislation, not tax legislation, presumably from the Department of Justice and Equality, to provide for parity of treatment for children of civil partners generally. That is the legislation for which we should strive, and we will do that as best we can. That is probably the answer to this.
Finance (No. 3) Bill 2011 (Certified Money Bill): Second Stage
Senator Ivana Bacik: I begin by welcoming the Minister of State to the House, as others have, and the Bill, which as the Minister of State has mentioned is a single-issue Bill. It was prepared under the last Government and supported by both sides of the House. I also declare my interests in the issues we are discussing as I am junior counsel in the case being taken by my dear friend and colleague, Senator Zappone, and her wife Ann Louise Gilligan. I pay tribute to Senator Zappone and her partner for their immense bravery in taking the case, which has been ground-breaking in seeking recognition of same-sex marriage.
My comments in welcoming this Bill are tempered by my view and that of the Labour Party that neither the Bill nor the Civil Partnership Act provide for full equality. The Bill will bring about a separate regime, with similar and in some cases equivalent rights and obligations as married couples for civil partners, but it does not amount to the same thing. On Second Stage with the Civil Partnership Bill I welcomed the legislation, which the Labour Party supported, but I made the point that the difference between civil partnership and marriage matters. There is a symbolic legal reason as civil partnerships are not the same as marriage in law and are seen as a different entity or institution. There is also a difference in practice, and Senator Zappone has very usefully described to us some of the differences which have a practical impact.
The key difference in the Civil Partnership Act, reflected in the amendments in this Finance Bill, is the absence of recognition of rights and responsibilities vis à vis the children of gay couples. There was a great deal of debate in the Seanad and among the wider public when the Civil Partnership Bill was passing through both Houses. It is very regrettable that there is not more provision for children of civil partners. I hope this Government will pass follow-on legislation. The Minister of State indicated that this is a necessary addition to the civil partnership legislation. I hope we will see more to deal with children of civil partners and the rights and responsibilities between children and civil partners.
I do not want my remarks to take away from the positive impact of the Bill. Others have alluded to the ceremonies which have taken place here, where people have entered civil partnerships since April. Like Senator Zappone I have attended some of these and they are wonderful celebratory occasions. I am sure all of us would like to congratulate those people who have taken the plunge and entered civil partnerships in accordance with the Act. We all welcome the point made by the Minister of State that this Bill, when passed, will apply to those already registered to have entered civil partnerships. They will be considered for tax treatment from the date of registration of civil partnership rather than the enactment of the Bill. It is an important protection which should be made clear to people.
Senator O’Brien asked a question of the Minister of State about those who entered marriages or civil partnerships abroad and if they would be recognised under the Bill. Under the Civil Partnership Act provisions, it is made clear that those who entered same-sex marriage or civil partnership abroad would be recognised as civil partners here. Many of us viewed that as unsatisfactory in that people who have entered marriage in one of the many countries where same-sex marriage is recognised would have their marriage downgraded, effectively, to a civil partnership under Irish law. I hope we can return to that issue in future legislation.
I intend these remarks to be constructive and do not want them to detract from the overall impact of this Bill, which will have a very important practical protective effect on civil partners and qualified cohabitants. It was often overlooked in debates on the Civil Partnership Bill that it also applied to qualified same-sex and opposite-sex cohabitants where the relationships broke down. That part of the Act offers very important protections to dependent cohabitants who previously had no real protection in law.
Others have alluded to the very important point that the Civil Partnership Act had cross-party support in both Houses. I am the only person to speak so far who was a Member of the Seanad during the last term when we debated the Civil Partnership Bill. It was a very proud time for me and Senator Norris, who pioneered the introduction of a civil partnership Bill as a Private Members’ Bill. It was regrettable that we did not have unanimous support in the House, although there was unanimous support in the Dáil.
Deputy Brian Hayes: There was no vote.
Senator Ivana Bacik: In this House there were some dissenting voices but we have moved beyond that. It is very clear that the Civil Partnership Act and the necessary amendments following it - including this Finance Bill - will now achieve unanimous support. I have not heard any dissenting voices, which is very important.
I will refer to a couple of other points which may go beyond the direct import of the Bill. As Senator D’Arcy has already gone that way I believe I can follow. This Finance Bill will make the necessary technical changes to ensure equivalent protection and responsibilities for civil partners in the tax code. We are all grateful to Senator Zappone and the MarriagEquality organisation for putting forward some points which may need further review to ensure that as close an equivalence as possible is achieved between civil partnership and marriage in the tax code. I want to make a more general point on the same theme, but it goes somewhat beyond the scheme of this Bill. The Government needs to look beyond the categories of married couples, civil partners and qualified cohabitants. It should review the protections given and the definition of “family” in the Constitution. It is a matter of some concern for many people that although family forms and units well beyond the family based on marriage are recognised in our legislation and in our social welfare and tax codes, the family based on marriage remains the only family that is protected under Article 41 of the Constitution. One of the key Labour Party policies to be incorporated into the programme for Government involves the establishment of a constitutional convention to examine constitutional reform generally. I hope that during the convention process, we will look at how best to protect and celebrate the diverse forms of family life that exist in the State at present. It is clear that the children of gay families deserve protection and recognition. That can be provided for through legislation. We need to look beyond the institution of marriage as a basis or a constitutional foundation for the families we support in our Constitution.
Apart from the big issue, that is examining the constitutional definition of “family”, we need to consider other legislative changes needed to protect different forms of family relationship in
We can do a great deal during this Government’s term of office despite the immense financial constraints under which we are operating, as alluded to by Senator Michael D’Arcy. We can do an immense amount to offer greater protection to different forms of family life. I see this Bill as a stepping stone or staging post on the way to true equality for different family forms. Although I welcome the Bill, it is not enough. We need to introduce further follow-on legislation and make constitutional changes to ensure we give all forms of family life protection that is as strong as possible.
