Recognition of gay unions in Ireland

The Republic of Ireland does not recognise civil unions or same-sex marriages and there is very little provision for unmarried cohabiting couples, whether homosexual or heterosexual. Since 2008, the other states among the European Union who do not recognize same-sex couples are Bulgaria, Cyprus, Estonia, Greece, Italy, Latvia, Lithuania, Malta, Poland, Romania and Slovakia.

The situation has been under investigation by various Government bodies since 2002. In January 2006, then Taoiseach Bertie Ahern endorsed the report of an Oireachtas committee which recommended registered Civil Partnerships. A Government working group recommended in November 2006 that full civil partnership would address the majority of issues. In response to the oppositon bill of October 2007 (see below), the current Government has committed itself to introducing a bill for Registered Civil Partnerships by March 31, 2008, a policy agreed in its programme for Government, a date which it failed to meet. Details of the proposed legislation were officially published on 24 June 2008; and the government hopes for it to be law within a year.

The 2006 Irish census revealed 121,000 cohabiting couples, up from 77,000 in 2002. This included 2,090 in same-sex relationships, up from 1300.

Current legal position
Some test cases were taken in the 1990s challenging the legal non-recognition, but were not successful. Examples are those of a man who sought to use his partners free-travel rights, and of a man whose partner, the leaseholder of their residence, died.

In March 2004, there was controversy in the Dáil surrounding a definition of 'spouse' when it was claimed that the Minister for Social and Family Affairs, Mary Coughlan was seeking to exclude non-married partners from Social welfare legislation. The exclusion was a Government response to a finding by the Equality Tribunal that a gay couple was discriminated against in travel privileges.

In 2004, section 2(2)(e) of the Civil Registration Act set out what was previously the common law exclusion of same sex couples from the institution of marriage.

In a 2003 case, "Karner v Austria", the European Court of Human Rights held that cohabiting same-sex partners are entitled to the same rights as unmarried cohabiting opposite-sex partners in certain circumstances. However there are currently no defined rights for any cohabiting partners in Ireland.

During his November 2004 nomination hearings, European Union Justice Commissioner Franco Frattini said that states are obliged to recognise the family life of couples in non-marital relationships under the provisions regarding free-movement of people from one state to another in the EU Charter of Fundamental Rights. The charter has been incorporated into the proposed European Constitution which would give it a legal basis under the European Court of Justice. In May 2006 a reform of EU residency rules took effect, including the right of gay couples to reside anywhere in the EU and have their relationship 'facilitated'.

In January 2006, the Irish Equality Authority suggested that there is a legal requirement on the Irish Government under the Belfast Agreement to provide the same level of human rights as in Northern Ireland, where UK Civil Partnerships have been available since December 2005.

In a December 2006 judgement in the 'KAL Case' (see below), the Irish High Court held that marriage as defined in the Irish Constitution was between a man and a woman and that there was no breach of rights in the refusal of the Revenue Commissioners to recognise foreign same-sex marriages.

Public debate
Since the decriminalisation of homosexual sex in 1993, there have been no high-profile gay rights campaigns in Ireland. However, Irish media has increasingly covered international developments in the same-sex partnerships issue,   particularly since 2001. This has included coverage of reports on the issue, legal cases taken by gay Irish couples, surrogate parenthood, adoption, extra-legal same-sex unions, blessings and the foreign partnerships of Irish politicians. There was extensive coverage of the 2005 introduction of Civil Partnerships in the UK, which applies to Northern Ireland.

Irish Legislators began to comment publicly from 2003, demonstrating some awareness of the issues involved and tentatively suggesting legislation, but some also referring to Catholic teachings. There has been no significant public adverse reaction, with a 2005 online poll showing most respondents seeing some recognition as inevitable and acceptable. More rigorous public polls taken during 2006   showed an increasing majority of the population, up to 80%, supporting the introduction of some partnership rights for gay couples, with a slim majority favouring full marriage. The numbers in favour of gay adoption were lower but less clear.

Some public and religious figures, including bishops in the Catholic Church, and in the Church of Ireland also proposed legal recognition in 2004, but in a form different to marriage.

At the 2002 General Election only the manifesto of the Green Party explicitly referred to the rights of gay couples, but from 2004 all political parties, including the then Fianna Fáil/Progressive Democrat government, produced polices or made statements in favour of varying forms of recognition. In 2004 Fine Gael was the first party to launch an explicit policy document supporting civil partnerships.

In the run-up to the 2007 general election, the manifestos of all parties supported Civil Unions for same-sex couples with Sinn Féin and the Green Party supporting full civil marriage. Fine Gael ran advertisements in GCN (Gay Community News) advertising its commitments to same-sex couples.

The most recent survey, carried out in 2008, showed that 84% of Irish people supported civil marriage or civil partnerships for gay and lesbian couples, with 58% (up from 51%) supporting full marriage rights in registry offices. The number who believe homosexuals should only be allowed to have civil partnerships fell in the same period, from 33% to 26%. A later Irish Times online poll, put support for same-sex marriage at 63%, up a further 5%.

The 'KAL' Recognition Case
In November 2004 lesbian couple Katherine Zappone and Ann Louise Gilligan (K & AL) were granted leave by the Irish High Court to pursue a claim to have their September 2003 Vancouver marriage recognised for the filing of joint tax returns in Ireland. Justice McKechnie said that the case was significant and would embrace far-reaching issues touching many aspects of society. Lead barrister, Gerard Hogan, argued that neither the 1937 Irish constitution nor more recent tax laws specifically define marriage as between one man and one woman. Following a delay, the Government announced in April 2005 that it would contest the case on the basis of advice from the Attorney General that it would prevail. The case attracted media coverage in The Boston Globe and the couple were interviewed on the The Late Late Show.

The court case began on October 3, 2006. and concluded on October 13. Judgement was delivered on the 14 December 2006 Ms. Justice Dunne found that although a 'living document', the Irish constitution had always meant for marriage to be between a man and a woman, that the definitions used in the Civil Registration Act of 2004 was an expression of the current attitudes of the state and that she could find no reason to change that. Further, she found that the constitution did not violate the plaintiffs rights under European law. The judgement did say, however, that the topic is very much in the news and that there were undoubtedly difficultes and hardships for same-sex and unmarried heterosexual couples and that
 * "It is to be hoped that the legislative changes to ameliorate these difficulties will not be long in coming. Ultimately, it is for the legislature to determine the extent to which such changes should be made."

Of note, her judgement did not explicitly opine that same-sex marriage if agreed by the Oireachtas, would be unconstitutional. On February 23, 2007 the case was appealed to the Supreme Court. There is no known timeframe for the Supreme Court Hearing.

Law Reform Commission
In December 2000, as part of the Second Programme of Law Reform, the Government requested the Law Reform Commission of Ireland to examine the Rights and Duties of co-habitees. In April 2004, the commission published a consultation paper with provisional recommendations on legal issues related to cohabiting relationships. The report included an analysis of issues for same-sex couples. Following responses, the final report was launched in December 2006 by Justice Minster McDowell.

The consultation proposals called for legal 'presumed' recognition of qualifying cohabiting relationships. Qualifying Cohabitees were defined as unmarried same-sex or opposite-sex cohabiting couples in a 'marriage-like' relationships of 2 years (or 3 years in some cases), to be determined by the courts.

The commission reviewed such areas as property, succession, maintenance, pensions, social welfare and tax and recommended some changes in the law to provide rights for qualifying co-habitees. These rights would be applied by the court on application as distinct from the 'automatic' rights of legal marriage. The commission took care not to propose anything which would equate co-habitation with marriage due to concerns that such a proposal might violate the constitutional protection of the family.

The paper also included recommendations on other steps that cohabiting couples should take such writing wills, defining power of attorney etc.

Other Statutory Bodies and NGOs
Since 2002, various statutory bodies have issued reports calling for recognition of homosexual and de-facto heterosexual relationships.

Equality Authority: In January 2001, the authority produced a report on Same-sex partnerships in Ireland, which it had commissioned to inform its own debate. In May 2002, the Equality Authority issued its formal report on Equality for Lesbians Gays and Bisexuals, which highlighted the lack of recognition for same-sex couples in Irish law. In a departure from the norm, the report recommended legislative changes. These were to give legal recognition to same-sex couples, to provide equality with married couples in the areas of adoption, inheritance and taxation to eliminate discrimination.

NESF: In April 2003, the National Economic and Social Forum (NESF) published Report 27 – The implementation of Equality policies for Gay, Lesbian and Bisexual people. The recommendations included calls for the Law Reform Commission to consider models to achieve equal rights for same-sex couples in its then upcoming report.

Human Rights Commission: In a report on de facto couples presented to the Justice Minister in May 2006, the Irish Human Rights Commission evaluated international standards in dealing with unmarried couples, and assessed the changes needed in Irish law from a human rights perspective. They called for legal recognition of all de facto relationships, but did not call for civil marriage to be made available to same-sex couples.

Irish Council for Civil Liberties: Legal recognition of partnership rights and addressing inequalities in family law are a strategic objective of the ICCL for 2004–2009. In a December 2004 submission they welcomed the Law Reform proposals, but said that registered unions were necessary. In a radio interview in 2005 the partnerships officer said that full civil marriage would not be likely to succeed in a referendum. However, their May 2006 report on the issue—"Equality for All Families"– launched by ICCL founder Kader Asmal, called for legislated partnership registration and revisions to the constitutional provisions on civil marriage and the family, to give improved protection to children. This revision, which may require a referendum, should include a right to marry irrespective of sexual orientation.

The constitutional review
The All-Party Oireachtas Committee on the Constitution, re-established in December 2002, has been conducting a review of the entire constitution. In October 2004 it invited submissions on the Articles related to the family. Chairman Denis O'Donovan TD stated that it was examining these Articles to ascertain the extent to which they are serving the good of individuals and the community, with a view to deciding whether changes in them would bring about a greater balance between the two. Among the many issues raised by the committee were the definition of the family and the rights of gay couples to marry.

The relevant provisions are Articles 40.3, 41 and 42
 * Article 41
 * 1° 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.

The committee held oral hearings in Spring 2005 and received an unexpectedly large volume of written submissions with at least 60% being opposed to any constitutional changes to marriage or the family. The final report, the Tenth interim report of the committee, originally due in September 2005, was launched by Taoiseach Ahern on 24 January 2006. It recommended no change to the constitutional definitions, as it expected such a referendum to fail. It suggested that there should instead be legislation for a civil partnership registration open to homosexual or heterosexual couples which would confer succession, maintenance and taxation rights. Controversially, it also recommended that the 'presumed' recognition of co-habiting partners by the courts, as recommended by the Law Reform Commission, should also be legislated for, but only for heterosexual couples. The basis for the limitation was that it would be easy for the courts to determine the validity of a male/female relationship if there were children.

The Norris bill of 2004
In December 2004 Independent Senator David Norris, who had been central to the 1970s and 1980s Campaign for Homosexual Law Reform tabled a Private Member's Bill on Civil Partnerships in the Seanad on which his team had worked since 2003. Introduction of a bill in the Seanad is an unusual step, last taken some 50 years earlier.

The bill provided for the recognition of unmarried partnerships, both same-sex and opposite-sex cohabiting couples. It defined eligibility for a civil partnership and the process of registering a civil partnership. Rather than listing all the rights of a civil partner, it specified that all the rights of marriage would apply to anyone in a civil partnership. However, it specifically defined the dissolution process and the process for recognising foreign civil partnerships.

Senator Norris said the Bill was initiated "to protect the rights of adults who find themselves in relationships outside the conventional bonds of marriage" and "to meet the requirements of those who are making arrangements in their personal lives outside the formalities of marriage" and who also "need to be supported in the creation of mature stable relationships". Norris said he had done substantial research in order to achieve consensus on a moderate bill which took on board stated reservations.

The debate, including contributions from Justice Minister McDowell, took place on 16 February 2005. The majority of speakers supported the principles behind the bill and complimented Senator Norris on his work. Some expressed reservations due to the Constitutional protection of the family.

A Government amendment designed to postpone a vote attracted much acrimony. This postponement was to allow for input from then ongoing investigations: the Law Reform Commission, the High court KAL Case on the Canadian Marriage and the Constitutional Review committee. Eventually it was agreed to debate the bill but adjourn a vote indefinitely.

Labour Party Bill 2006
In December 2006, on the same day as the High-court judgment in the KAL case, Brendan Howlin, an opposition Labour Party TD tabled a private members Civil Unions Bill in Dáil Éireann.

Mainly similar to the Norris bill in its provisions, this bill defined a Civil Union as providing all the rights and duties as defined for marriage, but specifically limited Civil Unions to same-sex couples. It also provided for adoption by Civil Union couples.

The debate, again including contributions from Justice Minister McDowell, took place in February 2007. All speakers supported Civil Unions for gay couples and complimented Deputy Howlin on the bill. One expressed reservations about adoption. Minister McDowell claimed that the bill violated the constitutional provisions on marriage and the family. Government speakers said that Civil Unions needed to be introduced but that more time was needed to take account of the ongoing Supreme Court case and investigation work in the department of Justice.

The Government amended the bill to delay debate for six months. As expected, the bill then fell when the Dáil was dissolved in the intervening period for the 2007 General election. Deputy Howlin said that the real reason for the delay is that the Government did not want to enact this type of social legislation in the face of an election. The bill was again brought before the house for debate and voting on October 31 and November 1 the Government again voted the Bill down. The Green Party, now in Government also voted in opposition to the Bill, with spokesperson Ciaran Cuffe arguing that the bill was unconstitutional but would not elaborate any further.

Government Legislation 2008
On 24 June 2008, the Government announced the Heads of their Civil Partnership Bill. The Heads of the Bill will take approximately 6 months to pass, with the legislation likely to be effected in June 2009.

Department of Justice working group
On December 20, 2005, Justice Minister Michael McDowell announced that he was creating a working group in the Department of Justice to provide options for government consideration. This announcement came on the day after Belfast in Northern Ireland held the first of the new UK Civil Partnership registration ceremonies. The Government said that it would legislate following the report, but Taoiseach Ahern also said there might not be time to do so before the then upcoming election.

Chaired by former TD Anne Colley, this working group included GLEN, the gay rights lobby organisation, who said they expected a recommendation for civil marriage. The group facilitated a conference on the topic in May 2006, as input to its reports which was attended by experts from other countries which have introduced civil unions and gay marriage. During his speech, Minister McDowell was interrupted by members of the Ancient Order of Hibernians shouting opposition to the Government plans.

Initially to report by March 2006, the group presented its report to Government in November 2006. They recommended that a civil parternship scheme would resolve most of the issues for same-sex and cohabiting couples, while providing less benefits than marriage. Offering civil marriage to gay couples would be open to constitutional challenge. They also recommended a legal presumption of partnership for couples which have lived together for three years, or have children together. No recommendations were made for couples in non-conjugal relationships due to lack of research. The cabinet reviewed the report, but no legislation was introduced before the 2007 General election, and in the intervening period the Government said in response to the Labour Party Bill that legislation should await the KAL Case Supreme Court challenge.