Marriage Referendum

In this referendum, you may vote Yes or No to the proposal to include a new clause about marriage in the Constitution. This new clause provides that two people may marry each other regardless of their sex.

The proposed amendment to the Constitution is contained in the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015.

It is proposed to add the following to Article 41 of the Constitution:

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

Effect of this proposal

If this referendum is passed:

  • Two people of the opposite sex or of the same sex will be able to marry each other.
  • The other detailed rules about who may marry will continue to be set out in legislation.
  • The Constitutional status of marriage will remain unchanged.
  • A marriage between two people of the same sex will have the same status under the Constitution as a marriage between a man and a woman.
  • Married couples of the opposite sex or of the same sex will be recognised as a family and be entitled to the Constitutional protection for families.

Article 41 of the Constitution

THE FAMILY

ARTICLE 41

    1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
    2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
    1. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
    2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
    1. The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
    2. A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –
      1. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
      2. there is no reasonable prospect of a reconciliation between the spouses,
      3. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
      4. any further conditions prescribed by law are complied with.
    3. No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

The full text of the Constitution of Ireland is available at: http://www.irishstatutebook.ie/constitution.html

The Referendum Proposal

In the referendum, you are being asked to vote Yes or No to adding a clause to Article 41. If the referendum is passed, there will be a new Article 41.4 which will be as follows:

4 Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

The proposal is contained in the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015http://www.oireachtas.ie/documents/bills28/bills/2015/515/b5b15d.pdf

Court decisions on the constitutional status of marriage

Article 41 of the Constitution of Ireland deals with the family which is stated to be founded on marriage. The Constitution does not define marriage and, at present, does not set out who is entitled to marry or who is not entitled to marry.

Right to marry

The Constitution does not specifically provide for a right to marry but the courts have inferred that such a right exists for opposite sex couples.

Definition of marriage

The generally accepted common law definition of marriage is the voluntary union of one man and one woman, to the exclusion of all others. This definition has been adopted by the Irish courts on a number of occasions, for example, Zappone & Anor -v- Revenue Commissioners & Ors:
http://www.courts.ie/Judgments.nsf/597645521f07ac9a80256ef30048ca52/a4fe4e30eef23925802572790040d30c?OpenDocument

It has since been reflected in legislation.

Rights of the family

The family as an institution founded on marriage is described in Article 41 as having inalienable and imprescriptible rights. The courts have interpreted these words as follows:

  • Inalienable means that the rights cannot be transferred or given away.
  • Imprescriptible means that the rights cannot be lost by the passage of time or abandoned by non-exercise, or forfeited through the wrongful act of a third party over a period of time.

However, the courts have also decided that these rights are not absolute and the State may restrict the rights of the family in certain circumstances.

Family based on marriage

Article 41 pledges the State to guard with special care the institution of marriage on which the family is founded. In a number of cases, the courts have decided that the Constitutional rights which apply to the family based on marriage are not necessarily applicable to non-marital families.

The fact that a couple do not have children does not mean that they do not constitute a family in the Constitutional sense. It was decided that: “A married couple without children can properly be described as a “unit group” of society such as is referred to in Article 41 … The words used in the Article to describe the “Family” are therefore apt to describe both a married couple with children and a married couple without children.” Murray v Ireland [1985] IR 532.

The absence of one spouse does not change the family’s Constitutional status. The courts have decided that a widowed spouse and the children of the marriage constitute a family in the Constitutional sense. Orphaned children of a marriage are also considered a family.

How the State protects marriage

The precise obligations on the State to protect the institution of marriage have not been set out in detail either in legislation or by the courts. The courts have made a number of decisions which require the protection of the family in specific cases.

In specific cases, the courts have decided that Article 41 requires protection of the family based on marriage. The State cannot penalise the married state or induce individuals not to marry.

The State must at least ensure parity of treatment between marital and non-marital families and may discriminate positively in favour of families based on marriage. For example, the courts decided that tax laws which meant that a married couple were liable for more income tax than an unmarried couple with an identical income were unconstitutional: Murphy v Attorney General [1982] IR 241. Similarly, social welfare rules which meant that a married couple received a lower level of payment than two single people living together were unconstitutional: Hyland v Minister for Social Welfare [1989] IR 624. However, laws under which the State gave extra support to single‐parent families were not unconstitutional where they did not constitute inducements not to marry.

It has also been decided that the guarantee of the institution of marriage necessarily involves constitutional protection of certain marital rights such as the right of cohabitation, the right to take responsibility for and actively participate in the education of any children born of the marriage, the right to beget children and the right to privacy within the marriage.

The current rules on marriage

Before 5 December 2005, the rules in relation to who could marry were determined by the common law and by some statutory provisions which set out certain impediments to marriage. It was accepted common law that a marriage could only be between two people of the opposite sex. There were statutory rules about, among other things, the age of the parties to the marriage, prohibited degrees of relationship and requirements to give notice (the requirement to give notice applied from 1 August 1996).

Impediments to marriage

The Civil Registration Act 2004 put all the rules on impediments to marriage on a statutory basis. http://www.irishstatutebook.ie/2004/en/act/pub/0003/index.html

The relevant parts came into effect on 5 December 2005.

The Act (as amended) now provides that it is an impediment to marriage if

  • The marriage would be void by virtue of the Marriage Act 1835 as amended by the Marriage (Prohibited Degrees of Relationship) Acts 1907 and 1921 or
  • The marriage would be void because one of the parties is, or both are, already married or
  • One of the parties is, or both are, under the age of 18 on the date the marriage is solemnised and no exemption from this requirement has been granted or
  • The marriage would be void because one of the parties is, or both are, not capable of understanding the nature and effect of the marriage contract or
  • Both parties are of the same sex
  • One of the parties is, or both are, already a party to a subsisting civil partnership

Prohibited degrees of relationship

A man may not marry his:

Grandmother
Grandfather’s wife
Wife’s grandmother
Father’s sister
Mother’s sister
Father’s brother’s wife
Mother’s brother’s wife
Wife’s father’s sister
Wife’s mother’s sister
Mother
Stepmother
Wife’s mother
Daughter
Wife’s daughter
Son’s wife
Sister
Son’s daughter
Daughter’s daughter
Son’s son’s wife
Daughter’s son’s wife
Wife’s son’s daughter
Wife’s daughter’s daughter
Brother’s daughter
Sister’s daughter
Brother’s son’s wife
Sister’s son’s wife
Wife’s brother’s daughter
Wife’s sister’s daughter

A woman may not marry her:

Grandfather
Grandmother’s husband
Husband’s grandfather
Father’s brother
Mother’s brother
Father’s sister’s husband
Mother’s sister’s husband
Husband’s father’s brother
Husband’s mother’s brother
Father
Stepfather
Husband’s father
Son
Husband’s son
Daughter’s husband
Brother
Son’s son
Daughter’s son
Son’s daughter’s husband
Daughter’s daughter’s husband
Husband’s son’s son
Husband’s daughter’s son
Brother’s son
Sister’s son
Brother’s daughter’s husband
Sister’s daughter’s husband
Husband’s brother’s son
Husband’s sister’s son

In all cases, relationships of the half-blood are included. For example, sister includes a half-sister.

Age

Since 1 August 1996, parties to a marriage must be 18 years of age or older. It is possible to apply to the courts for an exemption from this requirement. An exemption may be granted if it is justified by serious reasons and is in the interests of the parties to the intended marriage.
(Until 1 January 1975 a marriage could be contracted by a boy aged 14 or over and a girl aged 12 or over. From 1 January 1975 until 31 July 1996, the age was 16 for boys and girls. Parental consent was required if one of the parties was, or both were, under the age of 21.)

Formalities required

The Civil Registration Act 2004 provides that a marriage which is solemnised in Ireland is not valid unless the people concerned satisfy the notification requirements.

This means that you must notify the Registrar of Marriages of your intention to marry not less than three months before the date on which the marriage is to be solemnised or have been granted an exemption from this requirement by the courts and meet a number of other requirements. If all the requirements are met, you are given a marriage registration form which you must show to the solemniser before the ceremony.

In order to register the marriage, the marriage registration form must be signed by each of the parties to the marriage, two witnesses and the solemniser immediately after the ceremony. The signed form must be given to the Registrar within one month of the ceremony.

The full details of the formalities are available at: http://www.welfare.ie/en/Pages/Getting_Married.aspx#app2

Solemnisation of marriages

A marriage may be solemnised by, and only by, a registered solemniser. A Register of Solemnisers is maintained by the General Register Office. http://www.welfare.ie/en/Pages/General-Register-Office.aspx

Registered solemnisers include civil registrars of marriage and designated religious and secular solemnisers.

Civil Partnerships, including how they differ from marriages

The law

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is the main legislation dealing with civil partnerships. It came into effect on 1 January 2011.

It has been amended on a number of occasions: http://www.irishstatutebook.ie/isbc/2010_24.html

The treatment of civil partners in respect of taxation is provided for in the Taxes (Consolidation) Act 1997 (as amended; in particular by the Finance (No 3) Act 2011 http://www.irishstatutebook.ie/2011/en/act/pub/0018/index.html) but also by subsequent Finance Acts). The treatment of civil partners in respect of social welfare is provided for in the Social Welfare (Consolidation) Act 2005 (as amended; in particular by the Social Welfare and Pensions Act 2010 http://www.irishstatutebook.ie/2010/en/act/pub/0037/index.html) but also by subsequent Social Welfare Acts. The detailed rules about social welfare are contained in a wide range of subsidiary legislation.

Recognition of similar relationships

A number of orders have been made which provide that certain legal relationships (including marriage) entered into by same sex couples in other countries may be recognised as the equivalent of civil partnerships in Ireland provided they are not within the prohibited degrees of relationship.  These orders are:

Civil Partnership (Recognition of Registered Foreign Relationships) Order 2010 (S.I. No. 649 of 2010)
Civil Partnership (Recognition of Registered Foreign Relationships) Order 2011 (S.I. No. 642 of 2011)
Civil Partnership (Recognition of Registered Foreign Relationships) Order 2012 (S.I. No. 505 of 2012)
Civil Partnership (Recognition of Registered Foreign Relationships) Order 2013 (S.I. No. 490 of 2013)
Civil Partnership (Recognition of Registered Foreign Relationships) Order 2014 (S.I. No. 212 of 2014)

Who may enter a civil partnership

Two people of the same sex may enter a civil partnership. Two people of opposite sex may not.

The other rules about who may enter a civil partnership are similar to, but not precisely the same as, the rules about who may marry.

  • You must be aged 18 or over. It is possible apply to court to allow you to marry if you are aged under 18; this does not apply to civil partnership.
  • You must not be married or in an existing valid civil partnership.
  • You must not be among the prohibited degrees of relationship for civil partnerships.
  • You must each give free and informed consent to enter the relationship.
  • You must satisfy the notification requirements which are the same as for marriage, that is, you must give three months’ notice of your intention to enter the relationship or have been granted an exemption from this requirement by the courts and satisfy other requirements.

Prohibited degrees of relationship for civil partnerships

A man may not enter into a civil partnership with his

  • Grandfather
  • Grandparent’s brother
  • Father
  • Father’s brother
  • Mother’s brother
  • Brother
  • Son
  • Grandson
  • Nephew
  • Grand-nephew

A woman may not enter into a civil partnership with her:

  • Grandmother
  • Grandparent’s sister
  • Mother
  • Father’s sister
  • Mother’s sister
  • Sister
  • Daughter
  • Granddaughter
  • Niece
  • Grand-niece

In all cases, relationships of the half-blood are included. For example, sister includes a half-sister.

Registration of civil partnerships

Civil partnerships are registered in broadly the same way as marriages. Civil partnerships may simply be registered; there is no necessity to have a civil partnership ceremony whereas there must be a marriage ceremony. The detailed requirements are at:
http://www.welfare.ie/en/Pages/Civil_Partnership.aspx

Ending a civil partnership

The courts may grant a decree of nullity of civil partnership in broadly the same way as decrees of nullity of marriage are granted.

There are no provisions for judicial separation of civil partnerships.

The courts may dissolve a civil partnership in a similar way to the granting of a divorce. However, the rules governing the dissolution of civil partnerships are different to those governing divorce. A dissolution of a civil partnership may be granted if the civil partners have lived apart for a total period of two years during the previous three years (divorce may be granted if the couple have lived apart for a total of four years out of the previous five) and proper provision has been made for each of them. Unlike divorce proceedings, the civil partners’ legal advisers are not required to discuss the possibility of reconciliation, mediation or other alternatives to dissolution. The court may, however, adjourn proceedings in order to facilitate such alternatives.

Orders such as protection orders, maintenance orders and pension adjustment orders may be made in the course of court proceedings for the dissolution of civil partnerships in the same way as such orders may be made in judicial separation and divorce proceedings. Property adjustments orders may also be made on granting a decree of dissolution or at any time after the decree is granted but they may not be made in favour of a former civil partner who has registered in a new civil partnership or has married. A property adjustment order may not be made over a shared home in which one of the civil partners lives with a new civil partner or a family home in which one of the civil partners lives with a spouse.

Consequences of a civil partnership

The legal consequences of entering into a civil partnership are broadly similar to the legal consequences of getting married but there are some differences.

Obligation to maintain each other

Civil partners are legally obliged to maintain each other in the same way as married couples. That obligation may be enforced through the courts.

Taxation

Civil partners are subject to taxation in the same way as married couples. Details are available at:
http://www.revenue.ie/en/tax/it/leaflets/it2.html

Social welfare

Civil partners are eligible for social welfare payments and schemes in the same way as married couples. Among other things, this means that:

  • Civil partners are eligible for survivors’ benefits (for example, widow’s/widower’s/surviving civil partner’s pensions).
  • Civil partners are liable to maintain each other and the Department of Social Protection may require one partner to contribute if the other is seeking a social welfare payment.
  • One of the couple in a civil partnership may be regarded as a qualified adult for social welfare purposes if he/she meets the usual conditions. This means that the other may qualify for an increased payment.
  • Civil partners are assessed jointly, as are married couples, in respect of means tested payments such as Jobseeker’s Assistance. This means that the means of both are taken into account if one is applying for a means tested payment.
  • Separated or divorced couples and civil partners who have separated or whose partnership has been dissolved may qualify for survivors’ benefits if the former spouse or civil partner dies provided they do not subsequently remarry, enter a civil partnership or cohabit.

Shared home protection

Under the Family Home Protection Act 1976, a spouse’s consent is required for the selling or mortgaging of the family home. Broadly similar provisions apply to the shared home of a couple in a civil partnership. If repossession proceedings are taken against one partner because of mortgage arrears, the court may decide to give the other partner the opportunity to take over the mortgage repayments. Civil partners where one of the couple owns a house may put the house in their joint names without incurring Property Registration Authority fees or court fees.

Legally, the home is a “shared” home if it is occupied by civil partners. It is a “family” home if occupied by a married couple.

Maintenance

A civil partner may claim maintenance from the other partner in broadly the same way as spouses can. Attachment of earnings orders may be granted for the enforcement of maintenance orders. Written agreements about maintenance made by civil partners may be made into enforceable court orders as with similar agreements between spouses.

Succession

Civil partners inherit under a will or on intestacy similarly to married couples.

Children have no automatic right to inherit from their parents under a will but they may apply to court if they consider that proper provision has not been made for them. The court may order that some provision be made for a child or children from the estate of the deceased. Such an order cannot reduce the entitlement of a spouse to a legal right share or the share on intestacy but it can reduce the entitlement of a civil partner. (When the relevant provisions of the Children and Family Relationships Act 2015 come into effect, the entitlement of a surviving civil partner to the legal right share or the share on intestacy cannot be reduced if the surviving civil partner is a parent of the child.)

Domestic violence

Arrangements for safety orders and barring orders also apply to civil partners.

Other Consequences of Civil Partnership

Various pieces of legislation which deal with requirements to declare interests or with conflicts of interest, for example, The Ethics in Public Office Act, provide that connected people or connected relatives are also subject to the same requirements. Civil partners are treated as connected people in the same way as spouses.

Civil liability: a civil partner is among the dependents in respect of whom a person may sue for damages for wrongful death.
Pensions: a pension scheme which provides a benefit for a spouse is deemed to provide a benefit for a civil partner.
Mental health: civil partners have the same role in relation to involuntary admission to psychiatric hospitals as spouses have.
Power of Attorney: a civil partner must be informed of the registration of an enduring power of attorney in the same way as a spouse. Similarly, an enduring power of attorney in favour of a civil partner ceases to be valid if the partnership is dissolved or there is a safety or barring order against the civil partner.
Property disputes: A civil partner may apply to the courts for a decision in relation to disputes over property with his/her partner.
Equality: Equality legislation also protects those in civil partnerships.

Proposed changes to marriage rules if referendum is passed

This is not part of the referendum proposal and these proposals are not necessarily final.

The government has published a General Scheme of Marriage Bill 2015. This contains the general legal changes that the Government proposes to introduce if the Marriage Referendum is passed. The scheme is available at:
http://www.justice.ie/en/JELR/Pages/PB15000072

The main provisions set out in the general scheme are:

  • Being of the same sex will no longer be an impediment to marriage.
  • The same prohibited degrees of relationship will apply to same-sex marriages as to opposite-sex marriages.
  • There will be no new civil partnerships after the legislation comes into effect.
  • Existing civil partners will continue to retain that status and the rights, privileges, obligations and liabilities associated with it unless they choose to marry.
  • Existing civil partners may marry each other. Their civil partnership will be dissolved if they do marry each other.
  • Religious solemnisers will not be obliged to solemnise the marriage of a couple of the same sex.
  • At a marriage ceremony, the parties to a marriage will declare that they accept each other as “husband and wife” or as “spouses of each other”.
  • There will be amendments to a number of Acts to replace the words “husband” and “wife” with the word “spouse”.
  • A change of gender would have no effect on a marriage.

 

Relevant laws on adoption, guardianship, custody and maintenance of children

Adoption

Adoption is governed by the Adoption Act 2010: http://www.irishstatutebook.ie/2010/en/act/pub/0021/index.html

At present, a married couple may jointly adopt a child.  A single person, whether heterosexual or homosexual, may adopt.

The Children and Family Relationships Act 2015 provides that civil partners and cohabiting couples who have lived together for three years will be eligible to adopt jointly.  This Act was signed into law on 6 April 2015.  The provisions on adoption are not yet in force but are expected to come into force in the near future.

Guardianship

The Guardianship of Infants Act 1964 is the main legislation dealing with guardianship http://www.irishstatutebook.ie/1964/en/act/pub/0007/index.html

At present, a child’s guardian is a parent except in cases where a parent has appointed a testamentary guardian in the event of the parent’s death.  The Children and Family Relationships Act 2015 provides that a step-parent, civil partner or cohabiting partner (of three years or more) will be able to apply to court to become the child’s guardian if they have had shared responsibility for the day-to-day care of the child for over two years.

A person will also be able to apply to court to become a guardian if she or he has provided day-to-day care for a child for a continuous period of more than a year and there is no parent or other guardian willing to take on these responsibilities. This means that, for example, grandparents or foster parents could apply.

Where one or both of a child’s parents are still living, court-appointed guardians will only be able to make such decisions as where the child lives when granted specific authority by the court to do so.

In situations of serious illness or injury, a parent or guardian with sole custody may nominate a temporary guardian who will be appointed by the court to take on the role of guardian temporarily. The court must be satisfied that the temporary guardian is suitable for the role and that the appointment is in the child’s best interests.

These provisions on guardianship are expected to be brought into effect in the near future.

Donor assisted births

The Children and Family Relationships Act 2015 deals with parentage in the cases of donor assisted births but not with surrogacy.  While the Act has been passed, it is not intended to bring these particular provisions into effect for at least a year.

The Act provides that a mother’s spouse, civil partner or cohabiting partner will be able to become the second parent of a child provided certain conditions are met.  One of these is that the birth mother and the intending second parent consent in advance that they will be the parents of any child born through donor-assisted human reproduction.  The donor will also have to consent in advance that he or she is a donor and does not intend to be a parent of the child.

Maintenance

The Children and Family Relationships Act 2015 provides that the courts may order payment of maintenance by the cohabitant of a child’s parent for the support of the child.  This is expected to come into effect in the near future.

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