Unpacking the differences: dissolution of civil partnerships

A short while back I wrote about the remaining differences between civil partnership and marriage. One key difference relates to ending a civil partnership. In short, it is a good deal easier to end a civil partnership than a marriage.

This might sound like an advantage for civil partners, but it arguably underpins the lesser status of civil partnership and the lower regard in which it is held.

Ending a marriage in Ireland is a serious business. The conditions for divorce are laid out in the Constitution, no less, and reinforced by legislation. They cannot be watered down without a further referendum.  You have to have been living apart for 4 of the 5 years immediately preceding the date of the application for a divorce. You have to satisfy the judge that there is no reasonable prospect of reconciliation. You have to show, also, that proper financial provision is made or will be made for both spouses and any children of either or both spouses.

Additionally, as a precondition to lodging your application for divorce, your solicitor must certify that she has advised you of alternatives to divorce, such as judicial separation, and the possibility of seeking reconciliation, as well as alternatives to a contested divorce.   A similar requirement applies to the solicitor for the person against whom the divorce is sought.

In short, divorce is considered a last resort, only to be embarked on when all else has failed.

Ending a civil partnership is not easy but it is a good deal simpler. The parties must have been living apart for two years of the three years immediately preceding the application for dissolution. Proper provision must be made for the civil partners and (once the Children and Family Relationships Act 2015 comes into force) their children.

While a marriage cannot be ended unless the judge is satisfied that there is no reasonable prospect of reconciliation, this is not a requirement in relation to the ending of a civil partnership. Curiously this is the case even though the living apart requirement for civil partnership dissolution is shorter than for divorce. One would have thought that the prospect of reconciliation after 4 years' living apart is probably more remote than after 2 years.

Likewise, there is no requirement that either party's solicitor certify that they have given advice on alternatives to civil partnership dissolution.

Why is this the case? In part, civil partnership dissolution is easier to obtain because the requirements for dissolution are not constitutionally mandated, as they are for marriage. The grounds for divorce are embedded in the Constitution and cannot be changed without a referendum. So the Oireachtas had much more leeway in legislating for civil partnership.

Professor John Mee has suggested that the easier requirements for civil partnership dissolution are necessary to prevent undue restrictions being placed on the right to marry. He hypothesises that if civil partners broke up and one of them wished to marry a person of the opposite sex, unduly rigorous requirements for dissolution of a civil partnership might constitute a disproportionate restriction on the constitutional right to marry.

One cannot, however, escape the suspicion that the grounds for civil partnership are less exacting because civil partnership is not taken as seriously as marriage. In particular, the fact that a dissolution can be granted without evidence that reconciliation is infeasible is telling. If there is a prospect of reconciliation, shouldn't the court strive to help save the civil partnership? Is it that civil partnership is not regarded as being as problematic or unfortunate as the ending of a constitutionally protected marriage?

Extending marriage to same-sex couples will mean that same-sex married couples will be subject to the same marital divorce regime - one that is more exacting than that applying to civil partnership. One would have thought social conservatives would approve?

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