Civil Partnership
Background
Civil partnership legislation has been progressively introduced in Western European countries throughout the start of the 21st century. It was introduced in England and Wales in 2005. It provided recognition for relationships between same-sex couples.
It did not go so far as to provide equivalent rights to marriage. However, civil partners are treated like spouses to a very considerable extent.
On 1 January 2011, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 commenced and provided for civil partnership in Ireland. The Act also gave considerable new rights to cohabitants.
Post-Marriage Referendum
After the Marriage Referendum of May 2015, the Marriage Act 2015 closed the possibility of civil partnership in new cases. Civil partners may now marry each other if they choose. If they do not their relationship is governed by the civil partnership legislation.
The civil partnership legislation continues to apply to existing civil partnerships. Therefore it will continue to be significant for many years.
Requirements for CP
To become civil partners, parties were required to be:
- the same-sex
- over 18 years
- unmarried and unregistered
- unrelated
Civil partners are entitled to the same succession rights as spouses. Registration revoked a will as is the case in marriage. As with marriage, there was an exception if the will was made in contemplation of civil partnership.
A civil partnership may be terminated in ways broadly analogous to nullity and divorce.
Civil partners have succession rights. The right of a child to apply for provision from a parent’s estate may not interfere with a spouse’s legal right share but may interfere with a civil partner’s share.
Declarations
The courts may make declarations as to the validity of Irish and foreign civil partnerships. Such an application may be made by a person claiming to be a civil partner or by another interested party, such as a child.
The application may be made if one of the civil partners is domiciled in the State and has been ordinarily resident for a year or died before the application and was so domiciled or ordinarily resident. Certain other interested parties must receive notice of the application.
Foreign Civil Partnerships
The Minister could by order declare that certain classes of foreign civil partnerships are recognised as civil partnerships in Ireland. Under the law of the country concerned, the relationship
- must be exclusive.
- permanent, unless parties dissolve it through the courts.
- registered under the law of that jurisdiction.
Rights and obligations must be comparable to Irish civil partnership. A dissolution under the law of the relevant jurisdiction may be recognised on broadly similar terms.
Registration of Civil Partnership
The registration of civil marriage and civil partnerships was undertaken by the Civil Registration Service. The provisions of that legislation in respect of registration of marriages, divorce and nullity applied to the equivalent steps and proceedings under civil partnership.
At least three months’ notice was to be given to the superintendent registrar of the intention to enter a civil partnership. The persons concerned were required to attend at the office of the registrar no less than five days before the date and make declarations that there was no impediment to the civil partnership registration.
As with marriage, the High Court could grant exemptions where there were serious reasons and exceptional circumstances. The superintendent registrar may require evidence in relation to the requisite conditions.
2014 Act
The 2014 Act provides that couples who produce a court order exempting them from giving three months’ notice of their intention to enter into a civil partnership will be required to pay the prescribed fee as set out in regulations. Where one or both of the people making a notification of their intention to enter into a civil partnership is a foreign national, they must provide documents and information regarding their immigration status.
The 2014 Act amends the validation period of a Civil Partnership Registration Form to six months from the date of the proposed ceremony in order to align it with the validation period for a Marriage Registration Form.
The 2014 Act provides for the validation of certain civil partnerships carried out at foreign embassies in the State.
The registrar is no longer required to issue a copy of the document signed by the parties to the civil partnership.
CP of Convenience
The 2014 Act provides for the procedures when a registrar forms an opinion that a proposed civil partnership is a civil partnership of convenience. TheSuperintendent Registrar who makes a decision that a civil partnership constitutes a civil partnership of convenience shall notify the Minister for Justice and Equality.
Declaration
The parties were required to complete a civil partnership registration form. This was furnished by the registrar and was valid for six months. If the civil partnership was not completed within this period, a fresh application was required.
Civil registration itself required certain declarations to each other in the presence of the parties, the registrar and two witnesses. The declaration form was to be signed. The registrar was required to be satisfied that the parties understood the nature of civil partnership.
Before declaring the civil partnership, the parties could take part in a ceremony in a form approved by the superintendent registrar to which the declarations were made. Following registration, the partners were issued with a certificate.
The registration could take place at the offices of the registrar. It could take place at another place with the consent of a registrar and in his/her presence, provided fees were paid, including travel and subsistence expenses of the attending registrar.
If a party to a civil partnership registration did not have sufficient knowledge of the language of the registration to understand, an interpreter was required to be present.
There are provisions for the registration of decrees of nullity and dissolution of civil partnership. Full particulars of the decree court, PPS numbers, date and place must be entered.
Objections & Impediments
There were provisions for objections to civil partnerships. An objection relating to a minor error or misdescription which would not have constituted an impediment to partnership could be rectified. The objections had to be made before the partnership declaration.
Where there was a possibility that the impediment invalidated the civil partnership, the registrar could refer the matter to the superintendent registrar and notify the parties concerned.
The civil partnership could be suspended while the matter was investigated. If the superintendent registrar decided there was no impediment, the parties were notified. If there was an impediment, the parties were notified and given reasons. A party to proposed partnership could appeal to the Circuit Court against the decision of the superintendent registrar.
Prohibited Degrees
A man could not enter a civil partnership with his
- father,
- brother,
- grandfather,
- son
- grandson,
- nephew
- grandnephew,
- father’s, mother’s or grandparent’s brother
A woman could not enter a civil partnership with those in the equivalent degrees of relationship.
Shared Home
Civil partners enjoy equivalent protections to those under the Family Home Protection Act in respect of the shared home. The shared home is the dwelling house in which the civil partners ordinarily reside or in which the civil partner whose protection is an issue ordinarily resided before leaving.
See the section on the Family Home Protection Act in relation to spouses. The following equivalent provisions apply.
The non-owning spouse must give prior consent in writing to any sale, transfer, mortgage or other disposition of the shared home. Provisions in respect of dispensation with consent exist where consent is being unreasonably withheld.
Conduct leading to loss of the shared home may be restrained. Mortgage or rent/eviction proceedings may be adjourned to give the other civil partner the opportunity to pay mortgage or rent arrears. Where one partner pays, the court may, as with the family home, deem the non-payment not to be effective for the purpose of mortgage liabilities so that, for example, the liability and rights enforcement of the lender is not accelerated.
A civil partner may be restrained from disposing of household chattels. Civil partners may register the fact that they are civil partners in the Land Registry or Registry of Deeds in order to protect their position. The transfer of shared home into joint names is exempt from registration fees.
CP Maintenance
Civil partners have mutual maintenance obligations, broadly equivalent to those in respect of spouses. See the chapter in respect of maintenance rights of spouses.
Where it appears to the District Court that the other civil partner has failed to provide maintenance as is proper in the circumstances, the court may make an order that the other civil partner pay periodical payments for the support of the applicant for such period during the applicant’s lifetime as the court specifies.
An order may not be made in respect of a civil partner who has deserted the other unless it would be unjust, in all the circumstances, not to do so.
In deciding whether to make a maintenance order, the court takes account of:
- the respective income earning capacity, property and financial resources of the partners.
- income benefits to which they are entitled by statute.
- respective financial responsibility towards others/third parties, in particular children and former spouses.
- conduct of each of the civil partners, if it would be unjust to disregard it.
Applications may be made to vary, discharge or terminate maintenance orders in the same manner as with spouses.
Where partners enter an agreement in writing in respect of maintenance, this may be made a rule of court. The effect is that it is enforceable as if it was a court order .
An application may be made by either civil partner for an order directed to pension trustees to disregard separation for the purpose of the pension scheme rules.
The special enforcement of maintenance order provisions in respect of spouses applies to civil partners. In particular, the court shall order payments be made to the District Court, unless the maintenance creditor is satisfied not to so require. The District Court clerk may recover the arrears by way of attachment of earnings order and others methods.
The attachment of earnings order procedure which applies in respect of spouses applies to maintenance orders by and for the benefit of civil partners.
Succession
Civil partners are entitled to a legal right share. Where the deceased died with no children, the civil partner is entitled to a one half share. Where the deceased dies with children and a civil partner, the civil partner’s legal right share is one third.
The legal right of a civil partner may be renounced in writing before or after the civil partnership.
An order made in favour of a child for whom proper provision has not been made and having regard to the moral duty of the deceased may affect the right of the surviving civil partner. This is the case, if, in the circumstances – including the deceased’s financial circumstances and obligations – it would be unjust not to make the order.
The civil partner of the deceased may not take a share if he/she is guilty of desertion, where desertion has continued for up to 2 years before death. Similarly, a civil partner who is guilty of conduct which justified the deceased living separate and apart is himself or herself guilty of desertion.
The various spousal rights in respect of appropriation of the family home apply to civil partners and the shared home.
Child of Civil Partner
On application of a child order, the court may decide that the provision be made out of the intestate’s estate if it is of the opinion that it is just to make an order considering the circumstances, including:
- the extent to which provision is made during the intestate’s life.
- age and reasonable financial requirements of the child.
- the deceased’s financial circumstances.
- the deceased’s obligation to their civil partner.
The amount is not to be less than the amount the child would have been entitled to if no order was made and not to be greater than the amount he would have been entitled to had the deceased died without a civil partner or spouse.