My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Wednesday, November 11, 2009
The Civil Partnership Bill 2009 if enacted would establish a statutory civil partnership registration scheme for couples in same sex relationships. The provision to register a civil partnership is confined to same sex couples. Co-habiting opposite sex couples come under separate provisions and I will come back to those in a later paragraph. Returning to same sex couples, however, such registration would have the effect of conferring rights, protections and obligations on those couples very similar to those of married couples. Areas covered include, but are not limited to, the home in which the couple reside, pensions, maintenance, violence and inheritance. The Bill defines who qualifies as a civil partner for the purposes of registration. It also sets out the manner in which civil partnerships may be dissolved. Clearly there is no obligation to register and even if a couple are not registered the Bill still seeks to provide protections for such a couple in the event of their relationship breaking down. Such provisions apply both to cohabiting same sex and opposite sex couples. In one crucial respect however, the Bill differs from matrimonial legislation and rights consequent thereon, it makes no provision for children living with same sex couples. This is a glaring omission. Such children will have no voice in the event of a breakdown of the couple’s relationship and their needs will have no legislative recognition. For example, a child/children who have grown up in a same sex couple relationship from a very early age and who find themselves some years later without any contact with the non biological parent because of a relationship breakdown may suffer unnecessary hardship as a result. Constitutional provisions are cited as the reason for this but that explanation is simply not good enough and somewhat of a cop out. The rights of children must always be a priority no matter the difficulties. Since the Bill has yet to be enacted there is still a small window to try and effect change here for those interested .
For those who are unregistered, the Bill proposes the establishment of a redress scheme. This would enable a financially dependent partner to apply to court for various reliefs arising out of the death of a partner or the end of that relationship. The bill also makes express provision for the recognition of cohabitation agreements. Such agreements would set out the manner in which the couples affairs are to be dealt with in the event of a dissolution and would enable them to contract out of the legislation.
The definition of co- habitees does not include couples who live together and are relatives. Co-habitees are couples of same or opposite sex who are in an intimate and committed relationship who are not related within a probited degree of relationship and who are not married to one another or registered as civil partners. Under the provisions of the Redress Scheme, the Bill, if enacted, will allow cohabitees, whether same or opposite sex, to apply for maintenance, protection of shared property/home, pensions and succession (inheritance) rights. The normal domestic violence provisions will also be extended to co-habitees. Some relief is presently afforded under our Domestic Violence legislation to non marital couples but this has been widely criticised as not being broad enough and restricted in unpalatable ways. It is after all in the public interest that everyone would be safe in their own homes and protected from domestic violence, whether married or not. This Bill finally leaps that hurdle. Rights under the Redress Scheme will arise after 3 years in the case of a couple without children and 2 years in the case of a couple with children.
The Bill will go into its second stage this month as mentioned already. In its present form it is likely to be keenly debated. It falls short of providing equality between married couples and unmarried couples and is probably best described as a half way house. It does however provide a much needed legal safety net albeit somewhat less far reaching that might be hoped.
It is worth noting that same sex couples and co-habiting opposite sex couples can avail themselves of the wonderful opportunities now available under the provisions of alternative dispute resolution. The time to enter into such agreements is when you are embarking on the adventure of your relationship. This is when you will want to do the best by one another and when your reasoning powers will not be impaired by the vulnerabilities that are dominant when the relationship breaks down. This is the opportunity to make proper provisions for any dependent children. The collaborative model in particular offers a fantastic opportunity to couples embarking on a committed relationship to enter into a legally binding agreement. Collaborative practitioners are committed to interest based bargaining rather than position based bargaining and to enhancing communication rather than fracturing it. They are specifically trained in such skills as well as their legal skills. Most collaborative solicitors are also mediators and bring those skills to bear on the issues. Collaborative solicitors work with each other in a co-operative and team like manner to bring about solutions and resolutions rather than to escalate disputes. There is no correspondence and no positioning and all business is conducted on a face to face basis. No work is undertaken without discussion and transparency is a hall mark for everyone in the process. Besides the lawyers, collaborative practise also extends to other professionals who can be employed by the team on a needs basis such as communication specialists (collaborative coaches) child specialists and financial specialists. All team members including the parties work together in a non-hierarchical structure but to a well laid out and co-ordinated plan. No all solicitors are collaboratively trained. For a list of qualified practitioners consult the website www.acp.ie.