Is it time to resurrect Civil Partnership? – Anne Ahern
The recent UK Court of Appeal decision in Steinfeld and Keidan v the Secretary of State for Health, brings to mind the short life of the Irish Civil Partnership. Created by the 2010 Civil Partnership and Certain Rights and Obligations of Cohabitants Act, Civil Partnership gave same sex couples, practically, with some minor differences, the same legal protections as married opposite sex couples. Its demise was executed in the 2015 Marriage Act, which provided that there can be no further Civil Partnerships in Ireland after May, 2016. The existing Civil Partnerships today retain their legal footing, and can, if the couple so chose, be converted with ease to marriage. The Civil Partnership, struck down in its infancy, prevented from maturing, has perhaps been denied the opportunity to reveal its worth as an alternate creature to marriage.
In the Steinfeld case the opposite sex couple claimed that their European Convention rights under Articles 8 and 14 were infringed. These rights of privacy and family life and protection against discrimination were infringed by the State where they were precluded from entering into a Civil Partnership on the basis of their different sex. The UK is the only European country which has retained Civil Partnership for same sex couples after same sex marriage had been introduced. Other countries such as Ireland has wound down Civil Partnership, or some countries have civil partnerships open to both same and different sex couples.
The Court accepted the evidence of the plaintiffs, and other witnesses, that marriage was not an option for them because of its roots in patriarchy and inequality. They stated that Civil Partnership best reflected their values, and would give due recognition to the equal nature of their relationship. The Court accepted that these views were sincere and genuinely held and amounted to an inability to enter into marriage. They therefore did not have the choice to marry.
The three Court of Appeal judges unanimously held in the Plaintiffs favour but they ultimately failed in their challenge as the court accepted that the governments approach of waiting and gathering evidence before deciding to wind down Civil Partnership, or to extend it to different sex couples. This was held to be a matter of social policy within the remit of the government and therefore justified the unequal treatment of different and same sex couples. However, it is clear from the judgment that this justification can only be temporary.
Back to Ireland, in despatching the option of Civil Partnerships in the 2015 Act, the Minister for Justice in the Oireachtas alluded to the special constitutional position of marriage in Ireland under Article 41, maintaining that to allow Civil Partnership to survive would be to permit it to compete with marriage. In its demise, the Oireachtas effectively prevented Steinfeld challenges, eradicating an alternate or parallel legal union regime. It can be almost definitively ventured that if Civil Partnership continued to exist in this jurisdiction, it could be effectively challenged on the grounds of equality, discrimination and private and family life, on both European Convention and Constitutional grounds where it continues to preclude opposite sex couples.
Is there a demand in Irish society for a purely secular legal union akin to the Civil Partnership? Those opting not to marry but to cohabit may have many varied reasons underlying that decision. Applying the Steinfeld and Keidan argument for a secular union to the Irish context, it is plausible that many Irish couples may base their decision to cohabit rather than marry on religious and historical objections. Looking at research in Ireland and in the UK, motives for different family formations can be extrapolated. In Ireland ESRI research has shown in 2006 that cohabitation is more likely among couples who have different religious affiliations and much more likely among couples who have no religion. https://www.esri.ie/news/households-and-family-structures-in-ireland/
A statistical survey in the UK examining the figures entering into Civil Partnerships after the introduction of same sex marriage show that, although over all figures are decreasing, that same sex couples over 50 entering Civil Partnerships are increasing. [(ONS) Civil Partnerships in England Wales, 2015 published 12 September, 2016]
The minor differences between Marriage and Civil partnership mean that in the eyes of some, any objections are matters of principle rather than pragmatism. The religious character of marriage is today largely historical as marriages do not require religious ceremony for their validity. Association with patriarchy, equality and oppression, through legislative reform over the last century, is also essentially in the past. This however may not be enough for couples like Steinfeld and Keidan.
Those that have a conscientious objection to marriage, are denied the protections and status that marriage provides in Society. To remain as cohabitees means that entitlement to legislative protection will fall far short of that provided to married couples and Civil Partners. The 2010 Act introduced some protection for cohabitees, following piecemeal reform over the preceding years. Its purpose is to protect the vulnerable, financially dependent cohabitee, when the relationship ends through death or otherwise.
It creates a new legal status of qualified cohabitant who has the right to apply to court for property or maintenance orders, and who must show financial dependence. However, this right to apply does not automatically grant an entitlement to an order. It also provides that the couple can contract out of these legislative obligations to each other. The protection is therefore limited. Arguably though, to extend it further by foisting further rights and obligations upon cohabitants would interfere with the autonomy of the couple who have chosen not to formalise their union. After all, the legal status of cohabitee is an automatic one conferred by the 2010 act. The couple do not expressly consent to it, or formally enter into it, as they would if they chose to enter into a Civil Partnership or a marriage.
If countries like France, Belgium, Estonia, and Greece can legislate to have Civil Partnership open to both same and opposite sex couples maybe Ireland can too.