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Civil Partnership Bill 2009 - is it unconstititional and unfair?


Congalltee

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Nov 10, 2009
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6,211
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?DocID=12249&&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.
 

Congalltee

Well-known member
Joined
Nov 10, 2009
Messages
6,211
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?
 
M

MrFunkyBoogaloo

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.
 

Congalltee

Well-known member
Joined
Nov 10, 2009
Messages
6,211
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.
 
M

MrFunkyBoogaloo

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;
Colley Report said:
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/OptionsPaper.pdf/Files/OptionsPaper.pdf
 

orbit

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Joined
Dec 5, 2008
Messages
701
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.
 

nonpartyboy

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Joined
Dec 24, 2006
Messages
6,857
Did i not post on a thread exactly the same as this a few days ago ?.What happened to that one.
 

Congalltee

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Joined
Nov 10, 2009
Messages
6,211
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-co-habitants-you-happy-automatically-cede-property-rights-other-half-4.html#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).
 

Congalltee

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Joined
Nov 10, 2009
Messages
6,211
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.
 

cgcsb2

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Nov 2, 2008
Messages
526
I don't think alot of people actually realise the impact this bill will have on the heterosexual population, i.e. hetero couples (and even opposite sex house mates) don't realise they'll be half married after 3 years without their consent. There'll be alot of students studying away from home that'll suddenly realise one day that they're in a legal relationship with a person they probably don't even know that well. Also some gay couples are complacent about the bill, because they assume it'll contain the same rights as the British Civil Union Bill (i.e. different in name only).
 

Mercurial

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Messages
88,215
I give it another two pages before this descends into a debate about whether or not anal sex between two men is icky. (Good try though!)
 

Congalltee

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Nov 10, 2009
Messages
6,211
I give it another two pages before this descends into a debate about whether or not anal sex between two men is icky. (Good try though!)
This aspect of the bill about which this thread relates ie imposition of rights/obligations - applies to same-sex and opposite-sex couples, so it shouldn't.

The 100,000s of co-habitants will find that they (or their estates) could be sued by a former co-habitant. They will need a solicitor and barrister to defend it and so it may be cheaper to pay-off the claimant. This aspect fo the bill is madness (unless you are a lawyer).
 

Niceguyeddie

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Nov 8, 2009
Messages
90
The 100,000s of co-habitants will find that they (or their estates) could be sued by a former co-habitant. They will need a solicitor and barrister to defend it and so it may be cheaper to pay-off the claimant. This aspect fo the bill is madness (unless you are a lawyer).
Which Dermot Ahern is...

On topic, though, this is a very good point about the bill.
 

Chrisco

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Messages
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I don't think alot of people actually realise the impact this bill will have on the heterosexual population, i.e. hetero couples (and even opposite sex house mates) don't realise they'll be half married after 3 years without their consent.
Only if they are shagging and financially dependent on each other... i.e. a cohabiting couple.
 

nonpartyboy

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If a lad is quite happy to shag a girl with no intention of making a commitment to her and vice versa and the partner is prepared to put up with that, they what the hell does the state think it's doing interfering. Another inroad for the nanny state that infests this country.
 

Congalltee

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Only if they are shagging and financially dependent on each other... i.e. a cohabiting couple.
Ok - but what about...
Man inherits house. His girlfriend loses her uninsured home to floods. She moves in but is still there in 2012 but the relationship is going nowhere. He can't break up with her but he then meets someone else. He wants her out. She puts in a claim.

Woman lives with mother for years. Her siblings live abroad. Mother dies. She is lonely. She gets in lodger. He pays rent in cash. He is well liked by her friends and they wrongly think they are getting it on. She dies suddenly. Lodger/possible lover puts in claim against her estate, depsite it being her former parents' home.

I am poor and move into my rich friend's house. He is gay and as a camp as a row of tents but is not out to his parents. I live in his house, on low rent, for 3 years until we fall out. Do you think I would succeed in forcing him to pay me off.

At no stage have any of these people opted into a relationship which they want recognised by the State, so why get involved in their private arrangements.
 

nonpartyboy

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If anyone is pushing this, you can be guaranteed it the "womens" rights movement somewhere in the background.
 

Chrisco

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Ok - but what about...
Man inherits house. His girlfriend loses her uninsured home to floods. She moves in but is still there in 2012 but the relationship is going nowhere. He can't break up with her but he then meets someone else. He wants her out. She puts in a claim.
They are in a relationship, not flatmates, so the provisions of the Bill would apply.

Woman lives with mother for years. Her siblings live abroad. Mother dies. She is lonely. She gets in lodger. He pays rent in cash. He is well liked by her friends and they wrongly think they are getting it on. She dies suddenly. Lodger/possible lover puts in claim against her estate, depsite it being her former parents' home.
They are not in a relationship; he would have to prove financial interdependence.

I am poor and move into my rich friend's house. He is gay and as a camp as a row of tents but is not out to his parents. I live in his house, on low rent, for 3 years until we fall out. Do you think I would succeed in forcing him to pay me off.
You are not in an intimate relationship, therefore, again, it doesn't apply.

At no stage have any of these people opted into a relationship which they want recognised by the State, so why get involved in their private arrangements.
I am not arguing for the stipulations of the Bill, merely pointing out that the example you originally cited wouldn't apply.

In fact, it wouldn't surprise me at all if that scrote Ahern put this in to scupper the whole Bill.
 
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