The Ryan Line - Random Musings on Law and Life

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 lodgi…

What is civil partnership?

Civil partnership was introduced in 2011, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Civil Partnership is confined to same-sex couples only. Both parties must be aged 18 or over, and must not be closely related to each other. They must not already be in a civil partnership or marriage with other people. The process of entering into a civil partnership is very similar to marriage except that there is no facility for recognising a church ceremony. While there is nothing in the Act saying that you must be gay or bisexual, civil partnership legislation was clearly designed to facilitate the formalisation of same-sex romantic unions. Civil partnership confers most if not all of the rights and obligations associated with marriage, though there are some significant exceptions (discussed here).

What will happen to civil partnership if the marriage referendum passes?

The Draft General Scheme of the Marriage Bill 2015 indicat…

The Thirty-Fifth Amendment to the Constitution Bill 2015 proposes that the minimum age for the Presidency – currently 35 – be lowered to 21.Notably, 21 currently is the minimum age for election to the Dáil. The referendum is scheduled for May 22, the same date as the marriage referendum. So far, however, it has garnered much less attention than its counterpart.

The current minimum age requirement in Ireland mirrors similar provisions in the US Constitution, under which a candidate for President or Vice-President must be 35.The rationale behind the minimum age requirement would appear to be that the candidate should be sufficiently mature and experienced to hold office.Some commentators, indeed, quite fairly question whether 21 is too young to hold an office so prestigious as that of the Presidency. The matter was considered by the Constitutional Convention, though the outcome was equivocal. 50% of Convention members supported a reduction in the minimum age, but 47% were opposed; hardly…

A claim regularly made in the marriage referendum debate is that civil partnership should be sufficient for same sex couples and that there is no need to extend marriage to same-sex couples. Civil partnership certainly provides extensive rights and obligations. It offers equal treatment with marriage, for instance, in the context of taxation, social welfare, pensions, citizenship, immigration, property, domestic violence, and maintenance. Largely equal treatment applies in the context of succession (inheritance) and remedies following dissolution. It delivered a number of vitally important, and in some cases urgently needed protections for same-sex couples.
Civil Partnership differs from marriage, however, in a number of respects. Many of these differences initially related to children being raised by civil partners, though most of these particular differences have been eliminated by the Children and Family Relationships Bill 2015. Other differences in the original Act have been remove…

The Democratic Unionist Party in Northern Ireland is proposing an amendment to existing equality regulations in Northern Ireland. This relatively short amendment would allow a person in business to refuse on grounds of sexual orientation to provide goods or services or the use of premises where providing such good or services or use of premises would involve the person “endorsing, promoting or facilitating” a behaviour or belief that infringes that person’s strongly held religious convictions. It would also allow faith-based adoption and fostering agencies to turn away potential foster parents and adopters who are gay.

The proposed amendment is contained in the Northern Ireland Freedom of Conscience Amendment Bill. The Bill proposes to amend the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. Notably, the focus is solely on sexual orientation.  It does not propose to allow religious conscience to be invoked in other contexts, such as in relation to legislatio…

It has now become de rigueur in conservative circles to suggest that gay and lesbian people who wish to marry are perfectly free to do so. Marriage, it is argued, is open to LGB people on the same basis as for everyone else, namely that anyone is free to marry a person of the opposite sex.  (I'll address trans* people in another post, I promise!)  A person who is gay, conservatives argue, is free to marry a person of the opposite sex and is therefore not barred from marriage.  Thus, they maintain, there is no unequal treatment. 

With respect, this is a deeply disingenuous argument.  It is hardly addressing the point to argue that a lesbian woman, in a long-term relationship with another woman, is perfectly free to leave her partner and marry some random man.  It is flippant, irresponsible, and deeply dismissive of the experience of being lesbian or gay.

The argument, moreover, does not stand up to legal scrutiny.

It is well established from case law that a heterosexual marriage …

An opinion piece in a prominent mainstream newspaper this weekend past claimed that the proposed wording of the marriage referendum in Ireland would inadvertently outlaw heterosexual marriage. With respect, I believe that this view is wrong. Several prominent constitutional lawyers have confirmed to me that the claim is inaccurate.

Both the Irish and English versions of the referendum wording are, in my view, open to the interpretation that two persons who are of different sex from each other may still marry each other if the amendment is passed. While the amendment anticipates that they may be of the same sex, they do not have to be. Arguably, the wording could have been more explicit on this point. Yet even if you accept that there is some potential ambiguity here, the risk that the amendment will inadvertently ban marriage for opposite-sex couples is non-existent.

Even if the amendment could be read as applying to same-sex couples only, it is exceptionally unlikely – without v…