The Irish Times
Monday, September 21, 2009
Cohabitation part of Bill vulnerable to challenge, says expert
CAROL COULTER Legal Affairs Editor
ASPECTS OF the Civil Partnership Bill dealing with the rights of
cohabitees could be vulnerable to constitutional challenge, a family
law expert has warned.
Geoffrey Shannon was speaking at a Law
Society conference on the Bill. He said while he welcomed the Bill, he
was concerned about provisions in its second part, where legal
liabilities can be imposed on people without them realising it. This
second part of the Bill provides for two types of cohabitees – those
who sign cohabitation agreements and those who lived together for three
years (two if they have a child or children) and incur obligations, he
said.
If this relationship ends through separation or death, a
person who is financially dependent can seek a maintenance order
against the other person, a property adjustment order or a pension
adjustment order. He pointed out that the Bill also provides for people
to opt out of such obligations, as well as providing for cohabitation
agreements specifying what obligations the people are taking on.
He
stressed that the institution of marriage needed to be supported but
added that the greatest threat to it came from the inside, rather than
from other forms of relationships.
Children had been airbrushed
out of the proposed legislation, he said. Although a person could
acquire rights as a cohabitee after two years by having a child, no
further provision for the child was made in the legislation.
John
Mee, lecturer in law in UCC, told the conference that it was possible
for a person to become a cohabitee without realising it. The Bill did
not state how it would be established when the cohabitation started.
Further, to have a valid cohabitation agreement, the couple must each
have received independent legal advice.
“It is very unlikely that
many people will make these contracts. It is also unlikely people will
opt out [of the legal liabilities] for the same reason.” He said there
were major problems with the “financial dependency” provision of the
Bill, as it did not take into account financial contributions to the
relationship, for example the contribution of a lump sum for a joint
purpose.
“Why do we need this legislation now?” he asked. “We
should do the civil partnership now and start working on cohabitation
issues by tackling succession and taxation matters. We don’t need it
now.” Muriel Walls, solicitor with McCann Fitzgerald, told the
conference that children were sidelined in the Civil Partnership Bill
and their rights would have to be tackled by using “bits and scraps” of
other legislation.
Giving as an example a lesbian couple where
one of them had a child from a brief previous relationship and where
most of the care duties were performed by the other partner because of
the mother’s work commitments, she pointed out that if the relationship
broke up this woman would have no right to seek any contact with the
child.
If the roles were reversed and the earning partner was not
the biological parent, the child would have no right to maintenance
under the Bill.
However, they would have some relief under the
1964 Guardianship of Infants Act, she pointed out, as it allowed for
any person who had acted in loco parentis to a child to apply to the
court for an order giving access to the child. The court had first to
give leave for the making of such an application, so the process was
cumbersome.
She said it was regrettable there was no provision in
the legislation when dealing with the ending of civil partnerships that
the court must be satisfied there was no reasonable prospect of a
reconciliation. “This seems to be mean-spirited at the very least and
suggests that the stability of civil partnerships is not as important
as the stability of marriage,” she said.