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Thread: Civil Partnership Bill 2009 - is it unconstititional and unfair?

  1. #1
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    Default Civil Partnership Bill 2009 - is it unconstititional and unfair?

    This has nothing to do with providing a statutory equivalence to same-sex couples (so homophobes stay away), but relates to a new relationship to be recognised by the law:

    QUALIFIED CO-HABITANTS (whether of the same or the opposite sex who live together ) who are living together:

    as a couple in an intimate and committed relationship
    .

    It does not apply to siblings.

    and if you live together for 3 years (2 years if you have children together) you can be deemed by a court to be a qualified co-habitant, whether you like it or not (or even discussed it), thereby provided property rights and financial obligations on the cohabitants ie some will be dragged to courts (think about false claims between ex-flatmates).

    Questions:
    1) is this fair?
    2) why should the State impose duties and obligations on a couple, when they have decided not to get married/a civil partnership (as applicable)?
    3) does it comply with Constitutional property rights?
    4) Is a hybrid relationship being recognised by the State for a heterosexual couple not constitute an attack on the institution of marriage?
    5) Will a lot of co-habiting relationships not make it to their 3rd anniversary as a result of this bill?

    http://www.oireachtas.ie/viewdoc.asp...2249&&CatID=59
    170.—(1) For the purposes of this Part, a cohabitant is one of 2
    adults (whether of the same or the opposite sex) who live together
    as a couple in an intimate and committed relationship and who are
    not related to each other within the prohibited degrees of relationship
    or married to each other or civil partners of each other.
    (2) In determining whether or not 2 adults are cohabitants, the
    court shall take into account all the circumstances of the relationship
    and in particular shall have regard to the following:
    (a) the duration of the relationship;
    (b) the basis on which the couple live together;
    (c) the degree of financial dependence of either adult on the
    other and any agreements in respect of their finances;
    (d) the degree and nature of any financial arrangements
    between the adults including any joint purchase of an
    estate or interest in land or joint acquisition of personal
    property;
    (e) whether there are one or more dependent children;
    (f) whether one of the adults cares for and supports the chil-
    dren of the other; and
    (g) the degree to which the adults present themselves to
    others as a couple.
    (3) For the avoidance of doubt a relationship does not cease to
    be an intimate relationship for the purpose of this section merely
    because it is no longer sexual in nature.
    (4) For the purposes of this section, 2 adults are within a prohibited
    degree of relationship if—
    (a) they would be prohibited from marrying each other in the
    State, or
    (b) they are in a relationship referred to in the Third Schedule
    to the Civil Registration Act 2004 inserted by section 26
    of this Act.

    (5) For the purposes of this Part, a qualified cohabitant means an
    adult who was in a relationship of cohabitation with another adult
    and who, immediately before the time that that relationship ended,
    whether through death or otherwise, was living with the other adult
    5 as a couple for a period—
    (a) of 2 years or more, in the case where they are the parents
    of one or more dependent children, and
    (b) of 3 years or more, in any other case.
    (6) Notwithstanding subsection (5), an adult who would otherwise
    10 be a qualified cohabitant is not a qualified cohabitant if—
    (a) one or both of the adults is or was, at any time during
    the relationship concerned, an adult who was married to
    someone else, and
    (b) at the time the relationship concerned ends, each adult
    15 who is or was married has not lived apart from his or her
    spouse for a period or periods of at least 4 years during
    the previous 5 years.
    For more information see this solictors account of the bill (end of page, under the heading of cohabitation agreement, but remember the provision most objectionable is where there is cohabitation but no agreement)
    Civil Partnership Bill - Malcomson Law Solicitors

    Here are the concerns of Treoir, a body for unmarried couples and their children. But have a look at what they want.
    Combining draft proposals for Civil Partnerships and
    Cohabitants within the same bill
    It is regrettable that proposals for Civil Partnership and Cohabitant
    Agreements are both dealt with in the same Bill. Already confusion is
    arising about the impact of the provisions on the two groups.
    Treoir recommends that there should be two Bills one for Civil
    Partnership and one for Cohabitants.

  2. #2
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    Here is a discussiom about the last time, the Oireachtas tried to impose property obligations on co-habitants and requiring them to opt-out.

    What constitutes the family home?: ThePost.ie

    The Matrimonial Home Bill 1993 was sent to the Supreme Court by President Robinson and they struck it down.

    Does the same logic not apply?

  3. #3
    MrFunkyBoogaloo
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    Quote Originally Posted by Congalltee View Post
    This has nothing to do with providing a statutory equivalence to same-sex couples (so homophobes stay away), but relates to a new relationship to be recognised by the law:

    QUALIFIED CO-HABITANTS (whether of the same or the opposite sex who live together ) who are living together:

    It does not apply to siblings.

    and if you live together for 3 years (2 years if you have children together) you can be deemed by a court to be a qualified co-habitant, whether you like it or not (or even discussed it), thereby provided property rights and financial obligations on the cohabitants ie some will be dragged to courts (think about false claims between ex-flatmates).

    Questions:
    1) is this fair?
    2) why should the State impose duties and obligations on a couple, when they have decided not to get married/a civil partnership (as applicable)?
    3) does it comply with Constitutional property rights?
    4) Is a hybrid relationship being recognised by the State for a heterosexual couple not constitute an attack on the institution of marriage?
    5) Will a lot of co-habiting relationships not make it to their 3rd anniversary as a result of this bill?

    Civil Partnership Bill 2009 (Number 44 of 2009) - Tithe an Oireachtais


    For more information see this solictors account of the bill (end of page, under the heading of cohabitation agreement, but remember the provision most objectionable is where there is cohabitation but no agreement)
    Civil Partnership Bill - Malcomson Law Solicitors

    Here are the concerns of Treoir, a body for unmarried couples and their children. But have a look at what they want.
    Without getting too technical (i don't have the expertise) part of me feels that Dermot Aherne wants this bill to be struck down by the Supreme Court. It is the co-habitation legislation that may do this as it could be seen as an attack on the institution of marriage as it would, in some ways, undermine the need for getting one. There ain't no flies on Mr. Blasphemy himself.

    While civil partnerships [unions] are a welcome step forward, it makes absolutely no sense why cohabitation [non-unions] would be added to the same bill?!? I agree with Treoir when they say that there should be 2 seperate bills as they effectively deal with two completely different issues.


    Answers:

    1) I'm unable to answer this effectively. It strikes me as unfair but that is only my opinion. This whole area arose i think over the issue of common-law husband/wives [having been together for much longer than 2 or 3 years]
    2) They shouldn't i would think, not when the option of either a marriage or civil partnership is there. There will still be multitudes of couple who wish for neither and i think this is an attempt to 'clean up' this issue.
    3) I don't know, can anyone else comment on this?
    4) Yes in some ways that i can see.
    5) That might be one effect but on the positive side it may lead to an increase in the formalisation of relationships at or beyond that point. Who knows?

    And as a side point, i would think it unconstitutional if the state 'forced' me into the formalisation of a relationship that i didn't wish to formalise. Again, i'm no expert though.

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    To answer my own Questions:
    1) is this fair?
    No, and it is absurd. Schemes which require an opt-out (as opposed to opt in)are inherently unfair.

    2) why should the State impose duties and obligations on a couple, when they have decided not to get married/a civil partnership (as applicable)?
    If a couple have not made a collective decision* to have their relationship recognised by the State, then the State should stay out of their relationships. Some of these issues will only arise after the relationship has ended eg break-up or death. (* the fact that one of them might want to do so is irrelevant, that person should bring it to a head rather that let the State do it)

    3) does it comply with Constitutional property rights?
    Not on a reading of the 1993 Supreme Court decision. (see above).

    4) Is a hybrid relationship being recognised by the State for a heterosexual couple not constitute an attack on the institution of marriage?
    Certainly more so than a homosexual couple being recognised. The State, under the Constutiution, must protect marriage - providing for marriage-lite tome would infringe it.


    5) Will a lot of co-habiting relationships not make it to their 3rd anniversary as a result of this bill?
    Or 2 years if there is a child. Any friend I have mentioned it to, said they would arrange a row and for their (in some cases theorectical) cohabitant to walk out or to demand payment of rent (or some other measure that specifically say not a qualified couple). In some ways ending relationship which are going no where after 2.9 years is not a bad thing.

    This is the product of committe thinking, the Law Reform Commission and then Anne Colley's group. I agree that Dermot Ahern could run with it to bring the whole bill down.

  5. #5
    MrFunkyBoogaloo
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    Quote Originally Posted by Congalltee View Post
    This is the product of committe thinking, the Law Reform Commission and then Anne Colley's group. I agree that Dermot Ahern could run with it to bring the whole bill down.
    In fairness though the Colley Report didn't recommend anything like what is being proposed in this bill. It spoke of the disadvantages of cohabitating couples over formal, recognised unions but stopped short of recognising any institutions that would 'fix' the issue.

    The section on opposite-sex cohabitation ends by saying;
    Quote Originally Posted by Colley Report
    2.09.2 In the absence of conclusive research on the motivation, duration and structure of conjugal cohabitation, it is difficult to identify what institutional innovations would be appropriate to the needs of cohabitants.
    http://www.justice.ie/en/JELR/Option...tionsPaper.pdf

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    Interesting question. It looks like the bill is creating a statutory version of the mythical "common law marriage". I presume there are good reasons why common law marriage is actually a myth.

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    Politics.ie Member nonpartyboy's Avatar
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    Did i not post on a thread exactly the same as this a few days ago ?.What happened to that one.

  8. #8
    MrFunkyBoogaloo
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    Quote Originally Posted by nonpartyboy View Post
    Did i not post on a thread exactly the same as this a few days ago ?.What happened to that one.
    bump it

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    Quote Originally Posted by nonpartyboy View Post
    Did i not post on a thread exactly the same as this a few days ago ?.What happened to that one.
    Yes, you did (I forgot it was only 4 days ago when I bumped it)
    http://www.politics.ie/justice/80672...ml#post2291321

    Anyway the reason for the new thread:
    1) the last had a crap title
    2) it turned into an anti-feminist rant
    3) The bill is being presented next week and the above two questions are more relevant to the debate.
    4) I want it posted under my own name (egomanic that I am).

  10. #10
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    Why does this aspect of the bill get so little attention?
    There might only be about 5,000 same sex co-habiting couples but there are 100,000s opposite-sex couples. This is a massive change in marital law ie one must opt out as opposed to both consenting to having their relationship recognised by the State.

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