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The Future of Registered Partnerships
Jens M. Scherpe and Andy Hayward (eds.)
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Law and Policy in Modern Same-Sex Relationships and Family Finance Beyond Property Division in the 21st Gender Matters in the EU Century Katharina Boele-Woelki and Jessica Palmer, Nicola Peart, Angelika Fuchs (eds.) Margaret Briggs, and Mark European Family Law, vol. 42 Henaghan (eds.) ISBN 978-1-78068-447-5 ISBN 978-1-78068-464-2 xii + 250 pp. xxvi + 420 pp. THE FUTURE OF REGISTERED PARTNERSHIPS
Family Recognition Beyond Marriage?
Edited by Jens M. Scherpe Andy Hayward
Cambridge – Antwerp – Portland Intersentia Ltd Sheraton House | Castle Park Cambridge | CB3 0AX | United Kingdom Tel.: +44 1223 370 170 | Fax: +44 1223 370 169 Email: [email protected] www.intersentia.com | www.intersentia.co.uk Distribution for the UK and Ireland: NBN International Airport Business Centre, 10 Th ornbury Road Plymouth, PL6 7PP United Kingdom Tel.: +44 1752 202 301 | Fax: +44 1752 202 331 Email: [email protected] Distribution for Europe and all other countries: Intersentia Publishing nv Groenstraat 31 2640 Mortsel Belgium Tel.: +32 3 680 15 50 | Fax: +32 3 658 71 21 Email: [email protected] Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR 97213 USA Tel.: +1 800 944 6190 (toll free) | Fax: +1 503 280 8832 Email: [email protected] Distribution for Germany and Switzerland: Stämpfl i Verlag AG Wölfl istrasse 1 Postfach 5662 3001 Bern Switzerland Tel.: +41 31 300 66 77 Email: verlag@staempfl i.com
Th e Future of Registered Partnerships. Family Recognition Beyond Marriage? © Th e editors and contributors severally 2017 Th e editors and contributors have asserted the right under the Copyright, Designs and Patents Act 1988, to be identifi ed as authors of this work. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, without prior written permission from Intersentia, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Intersentia at the address above. ISBN 978-1-78068-429-1 D/2017/7849/136 NUR 822 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. CONTENTS
Foreword ...... v Preface ...... vii List of Contributors ...... xvii
Th e Future of Registered Partnerships: An Introduction Jens M. Scherpe and Andy Hayward ...... 1
Questionnaire Jens M. Scherpe and Andy Hayward ...... 11
PART I. REGISTERED PARTNERSHIPS AS A FUNCTIONAL EQUIVALENT TO MARRIAGE
Registered Partnerships in Denmark Ingrid Lund-Andersen ...... 19
1. History and Background ...... 20 2. Substance of the Registered Partnership Regime ...... 29 3. Conclusions and Considerations ...... 40
Registered Partnerships in Norway Th omas Eeg ...... 43
1. History and Background ...... 44 2. Substance of the Registered Partnership Regime ...... 49 3. Conclusions ...... 68
Registered Partnerships in Sweden Margareta Brattström and Caroline Sörgjerd ...... 71
1. History and Background ...... 72 2. Substance of the Registered Partnership Regime ...... 77 3. Legal Consequences/Eff ects of Registered Partnership ...... 84 4. Confl ict of Laws ...... 93 5. Introduction of Same-Sex Marriage ...... 94 6. Conclusions ...... 96
Intersentia xi Contents
Registered Partnerships in Iceland David Th ór Björgvinsson ...... 101
1. Background...... 102 2. Th e Act on Registered Partnerships ...... 103 3. Marriage ...... 108 4. Cohabitation ...... 114 5. Concluding Remarks ...... 117
PART II. REGISTERED PARTNERSHIPS AS AN ALTERNATIVE TO MARRIAGE
Registered Partnerships in the Netherlands Ian Sumner ...... 121
1. Introduction ...... 122 2. Entering into a Relationship ...... 123 3. Legal Eff ects of the Relationship ...... 129 4. Ending the Relationship ...... 148 5. Conclusion ...... 151
Registered Partnerships in France Laurence Francoz Terminal ...... 153
1. History and Background ...... 154 2. Substance of the Registered Partnership Regime ...... 161 3. Conclusion ...... 181
PART III. REGISTERED PARTNERSHIPS IN A TIME OF TRANSITION
Registered Partnerships in England and Wales Andy Hayward ...... 187
1. History and Background ...... 188 2. Substance of the Civil Partnership Regime ...... 198 3. Confl ict of Laws ...... 211 4. Same-Sex Marriage ...... 212 5. Th e Relationship between Same-Sex Marriage and Civil Partnerships . . . . 214 6. Conclusions ...... 222
Registered Partnerships in Scotland Kenneth McK. Norrie ...... 225
1. History and Background ...... 226
xii Intersentia Contents
2. Substance of Civil Partnership in Scotland ...... 231 3. Conclusions ...... 250
Registered Partnerships in Northern Ireland Brian Sloan ...... 253
1. History and Background ...... 254 2. Substance of the Registered Partnership Regime ...... 260 3. Confl ict of Laws ...... 270 4. Same-Sex Marriage ...... 272 5. Conclusions ...... 273
Registered Partnerships in the Republic of Ireland Brian Tobin ...... 277
1. History and Background ...... 278 2. Substance of the Registered Partnership Regime ...... 284 3. Conclusions ...... 299
Registered Partnerships in Greece and Cyprus Dafni Lima ...... 301
I. Greece ...... 302 1. History and Background ...... 302 2. Substance of the Registered Partnership Regime ...... 320 3. Conclusions ...... 335 II. Cyprus ...... 337 1. History and Background ...... 337 2. Substance of the Registered Partnership Regime ...... 340 3. Conclusions ...... 344
PART IV. ALTERNATIVE MODELS FOR REGISTERED PARTNERSHIPS: BEYOND CONJUGALITY, BEYOND FORMALITY
Registered Partnerships in Spain Josep Ferrer-Riba ...... 349
1. History and Background ...... 350 2. Formalised Partnership Regimes ...... 362 3. Conclusions ...... 377
Registered Partnerships in Belgium Geoff rey Willems ...... 381
1. History and Background ...... 382
Intersentia xiii Contents
2. Substance of the Registered Partnership Regime ...... 386 3. Conclusions ...... 408
Registered Partnerships in Australia Stevie Martin ...... 411
1. History and Background ...... 412 2. Substance of the Registered Partnership Regime ...... 426 3. Conclusions ...... 437
Registered Partnerships in New Zealand Margaret Briggs ...... 439
1. History and Background ...... 440 2. Substance of the Registered Partnership Regime ...... 448 3. Conclusions ...... 468
PART V. REGISTERED PARTNERSHIPS, DISCRIMINATION AND HUMAN RIGHTS
An ECHR Right to Access a Registered Partnership? Helen Fenwick ...... 471
1. Introduction ...... 471 2. Consensus Analysis and the Margin of Appreciation Doctrine ...... 472 3. Th e Role of Article 8 ECHR in Protecting ‘Family Life’ ...... 473 4. Initial Refusal to Recognise Same-Sex Partnerships as ‘Families’ under Article 8: Th e ‘Biological’ Approach ...... 475 5. Recognition of Same-Sex Partnerships as ‘Families’ under Article 8 . . . . 476 6. Providing State Protection for the Family Life of Couples: Accessing an Existing Registered Partnership Scheme? ...... 479 7. Providing State Protection for the ‘Family Life’ of Couples: Provision of One Form of Protection is Suffi cient to Satisfy Article 8? ...... 481 8. Lack of Formal Provision of Protection for ‘Family Life’ Amounts to a Breach of Article 8? ...... 489 9. An Article 8 Right to a Registered Partnership? ...... 492 10. Comparability between Registered Partnership Schemes and Marriage in Member States ...... 494 11. Conclusions ...... 495
Registered Partnerships in European Union Law Ruth Lamont ...... 497
1. History and Background ...... 499
xiv Intersentia Contents
2. Substance of the Registered Partnership Regime ...... 505 3. Conclusions ...... 522
PART VI. COMPARATIVE PERSPECTIVE AND CONCLUSIONS
Th e Future of Civil Partnership in England and Wales Andy Hayward ...... 527
1. Introduction ...... 527 2. Background to Civil Partnership Reform in England and Wales ...... 529 3. Reforming Civil Partnerships in England and Wales ...... 532 4. Th e Logistics of Law Reform: Lessons for England and Wales ...... 547 5. Reforming Civil Partnerships: Breaking the Mould ...... 553 6. Conclusions ...... 557
Th e Past, Present and Future of Registered Partnerships Jens M. Scherpe ...... 561
1. Th e Extension of ‘Family’ and the Need for Relationship Recognition...... 561 2. Conceptions of Registered Partnerships ...... 566 3. Th e Advent of Same-Sex Marriage and its Impact on Existing Registered Partnership Schemes ...... 576 4. Th e Future of Registered Partnerships ...... 583
Index ...... 587
Intersentia xv LIST OF CONTRIBUTORS
David Th ó r Bjø rgvinsson University of Iceland, Reykjavik Margareta Brattstr ö m Uppsala University, Sweden Margaret Briggs University of Otago, New Zealand Th omas Eeg University of Bergen, Norway Helen Fenwick Durham University, England, United Kingdom Josep Ferrer-Riba Universitat Pompeu Fabra, Barcelona, Catalonia, Spain Laurence Francoz Terminal Universit é Jean Moulin Lyon 3, France Andy Hayward Durham University, England, United Kingdom Ruth Lamont University of Manchester, England, United Kingdom Dafni Lima Aristotle University of Th essaloniki, Greece Ingrid Lund-Andersen University of Copenhagen, Denmark Stevie Martin Gonville & Caius College, University of Cambridge, England, United Kingdom Kenneth McK. Norrie University of Strathclyde, Scotland, United Kingdom Jens M. Scherpe University of Cambridge, England, United Kingdom, and University of Hong Kong
Intersentia xvii List of Contributors
Brian Sloan Robinson College, University of Cambridge, England, United Kingdom Caroline S ö rgjerd Familjens jurist, Stockholm, Sweden Ian Sumner Tilburg University, the Netherlands Brian Tobin National University of Ireland Galway, Republic of Ireland Geoff rey Willems Universit é catholique de Louvain, Belgium
xviii Intersentia REGISTERED PARTNERSHIPS IN NORTHERN IRELAND
B r i a n S l o a n
1. History and Background ...... 254 1.1. Basic Structures of the Law on Adult Relationships ...... 254 1.2. Motives for Introduction of Registered Partnership ...... 255 1.3. Proponents and Opponents ...... 256 1.4. Debates and Alternatives Considered ...... 257 1.5. Impact of the Introduction of Registered Partnership ...... 258 2. Substance of the Registered Partnership Regime ...... 260 2.1. Formation ...... 260 2.1.1. Eligibility ...... 260 2.1.2. Procedure ...... 261 2.1.3. Statistics ...... 261 2.2. Dissolution ...... 262 2.2.1. Dissolution Requirements ...... 262 2.2.2. Dissolution Procedure ...... 263 2.2.3. Statistics ...... 264 2.3. Legal Consequences/Eff ects of Registered Partnership ...... 264 2.3.1. Kinship ...... 264 2.3.2. Property Consequences ...... 264 2.3.3. Succession ...... 265 2.3.4. Tax ...... 266 2.3.5. Social Security and Welfare Benefi ts ...... 267 2.3.6. Other Rights, Duties and Entitlements ...... 267 2.3.7. Representation and Visitation Rights ...... 268 2.3.8. Children ...... 268 3. Confl ict of Laws ...... 270 4. Same-Sex Marriage ...... 272 5. Conclusions ...... 273
Intersentia 253 Brian Sloan
1. HISTORY AND BACKGROUND
1.1. BASIC STRUCTURES OF THE LAW ON ADULT RELATIONSHIPS
Northern Ireland is a common law jurisdiction within the United Kingdom of Great Britain and Northern Ireland.1 Th e island of Ireland was united with rest of the United Kingdom by the Acts of Union of 1800, but the island was subsequently partitioned and the south of Ireland eventually became an independent republic. Since the creation of Northern Ireland pursuant to the Government of Ireland Act 1920,
acts applying to the province have been passed at various times by the Parliament of Northern Ireland [operational between 1921 and 1972], the UK Parliament at Westminster and the current Northern Ireland Assembly [established by the Northern Ireland Act 1998].2
Northern Ireland Orders in Council have been described as ‘ a third type of (quasi-) primary legislation’ , which, ‘ [a]lthough mainly employed during periods of direct rule from Britain … continue to be used in certain policy areas ’. 3 Th e law on marriage, civil partnership and cohabitation in Northern Ireland essentially mirrors that existing in England and Wales before the latter jurisdiction introduced same-sex marriage. Marriage (whether civil or religious) is exclusively for opposite-sex couples,4 civil partnership is a near-equivalent institution exclusively for same-sex couples (introduced via the same Civil Partnership Act 2004 as applies in England and Wales and Scotland),5 and there is no comprehensive recognition of informal cohabitation, even if cohabitants are recognised for discrete purposes in Northern Ireland. 6 Despite the broad equivalence of the Northern Irish and pre-2013 English positions, it is noteworthy that (for example) only a married couple per se could jointly adopt a child in Northern Ireland even aft er the introduction of civil
1 See, e.g., B Dickson , Law in Northern Ireland , 2nd ed. , Hart Publishing , Oxford 2013 , ch. 1 for a concise legal history of Northern Ireland. 2 S Carter (updated by H Swift ) , ‘ UPDATE: A Guide to the UK Legal System ’ , GlobaLex 2015 < http://www.nyulawglobal.org/globalex/United_Kingdom1.htm > accessed 13.02.2017 , at [9.3.2]; see also, e.g., S Semple , ‘ Researching the Law of Northern Ireland ’ ( 2008 ) 8 Legal Information Management 283 . 3 S Carter, above n. 2, at [9.3.2]. 4 Matrimonial Causes (Northern Ireland) Order 1978/1045 (N.I. 15), Art. 13(1)(e). 5 Civil Partnership Act 2004, s. 138(1). 6 See, e.g., Family Homes and Domestic Violence (Northern Ireland) Order 1998/1071, Art. 3(1); Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979/924 (N.I. 8), Art. 3(1A)–(1B).
254 Intersentia Registered Partnerships in Northern Ireland
partnerships.7 Th is blanket ban on non-marital couples being joint adopters was held to breach the European Convention on Human Rights by the House of Lords in Re G (Adoption: Unmarried Couple). 8 While there was a further Court of Appeal judgment on the matter in 2013, 9 the Department of Health announced following it that ‘ unmarried couples, including same sex couples, and those in a civil partnership may apply to adopt ’. 10
1.2. MOTIVES FOR INTRODUCTION OF REGISTERED PARTNERSHIP
In 2003, the Ministers in the Northern Ireland Offi ce (eff ectively an executive branch of the United Kingdom Government) launched a consultation paper on whether provisions for same-sex civil partnerships in Northern Ireland should be included in the Civil Partnership Bill that was ultimately passed by the UK Parliament in Westminster.11 At that time, the devolved Northern Ireland Executive and Northern Ireland Assembly had been suspended due to political diffi culties surrounding ‘ power-sharing ’ between Unionists (wishing Northern Ireland to remain part of the UK) and Nationalists (preferring it to join the Irish republic), and the province was experiencing a period of ‘ direct rule’ from Westminster. 12 A religious organisation responding to the consultation claimed that ‘ [b]ecause of the number of Christians in N[orthern] I[reland] relative to England the proposal would face greater opposition through debate in a local assembly ’, expressing concern that ‘ [t]he scheme could thus be foisted unequally on an unwilling population in N[orthern I[reland] ’. 13 Baroness Hale admitted in Re G that ‘ adherence to traditional family values is more widespread in Northern Ireland than in the rest of the United Kingdom, as is religious belief ’.14 Nevertheless, a failure to provide a legal framework for the recognition of
7 Adoption (Northern Ireland) Order 1987/2203, Art. 14. 8 Re G (Adoption: Unmarried Couple) [ 2008 ] UKHL 38 . 9 Re Northern Ireland Human Rights Commission ’ s Application for Judicial Review [ 2013 ] NICA 37 . 10 BBC News , ‘ Gay adoption: Northern Ireland ban lift ed’ (11.12.2013 ) < http://www.bbc.co.uk/ news/uk-northern-ireland-25332917 > accessed 13.02.2017 . 11 O ffi ce of Law Reform, Department of Finance and Personnel, Civil Partnership: A Legal Status for Committed Same-Sex Couples in Northern Ireland, Belfast 2003 . See National Reports for England and Wales and Scotland by A Hayward and K Norrie in this volume. 12 See, e.g., R Wilford , ‘ Northern Ireland: Th e Politics of Constraint’ (2010 ) 63 Parliamentary Aff airs 134 . 13 O ffi ce of Law Reform, Department of Finance and Personnel, ‘ Civil Partnership: A Legal Status for Committed Same-Sex Couples in Northern Ireland’ : Analysis of Responses, Belfast 2004, at [8.1]. 14 Re G [ 2008 ] UKHL 38 , at [121].
Intersentia 255 Brian Sloan same-sex relationships would eventually (albeit not at that time) have placed Northern Ireland in breach of the European Convention on Human Rights. 15 In the consultation paper, the Government based its support for civil partnership in Northern Ireland on the ‘ inequality and social injustice’ faced by committed same-sex couples, the desirability of ‘ parity of treatment ’ with the rest of the United Kingdom, 16 and the specifi c equality-of-opportunity duties imposed by the Northern Ireland Act 1998 towards people with diff erent sexual orientations (alongside those with diff erent religious beliefs etc.).17 Comparisons were made with, inter alia, other European jurisdictions, and the Employment Framework Directive of the European Union was invoked.18
1.3. PROPONENTS AND OPPONENTS
Th e Offi ce of Law Reform received 462 responses to its consultation paper on the introduction of civil partnerships in Northern Ireland. Th e proposal was extremely controversial, with 86 per cent of all respondents being opposed to it 19 and some of the responses couched in ‘ more extreme language ’ that was ‘ potentially very off ensive’ . 20 Sixty per cent of organisational respondents, however, supported the introduction of civil partnerships, 21 with many citing reasons of equality and social justice. Th e vast majority of respondents who opposed civil partnership invoked the protection of marriage among their reasons, whether they felt that civil partnership was in fact ‘ gay marriage ’ or that it would ‘ undermine ’ opposite-sex marriage.22 Some groups and individuals attempted to use equality in arguments against civil partnership, on the basis that disadvantages accruing to lesbian, gay and bisexual people were caused by a so-called ‘ lifestyle choice’ , meaning that they were less deserving than other disadvantaged groups.23 Others pointed to the very small number of households containing same-sex couples recorded by a recent census. Th e Government denied that it was introducing same-sex
15 See, especially, Oliari and others v. Italy , Application nos. 18766/11 and 36030/11, 21 July 2015. 16 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 11, p. 6. 17 Northern Ireland Act 1998, s. 75. 18 Council Directive 2000/78/EC of 2 7 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 . 19 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [6]. 20 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [3]. 21 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [7]. 22 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [6]. 23 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [1.3].
256 Intersentia Registered Partnerships in Northern Ireland
marriage and remained resolute about ‘ the strong equality and social justice imperatives behind the civil partnership proposal’ , noting the:
signifi cant unfairness and inequality caused by the fact that, although many committed same-sex couples live in partnership, and to all intents and purposes, as families, they experience serious social disadvantages due to the absence of any legal recognition of their partnerships.24
As regards the numbers of people aff ected, the Government admirably asserted that the census data may not have been fully accurate for reasons including a fear of homophobic attacks, and that ‘ the issue is one of fairness rather than numbers aff ected ’ . 25 An argument was made that civil partnerships would have a detrimental impact on freedom of religion for those individuals and organisations opposed to them. Several religious groups claimed that their understanding of marriage led them to believe that civil partnership was not the best way to remedy unjust discrimination against lesbian, gay and bisexual people, albeit that they welcomed such people, while others apparently did little more than assert their conviction about the inherent wrongfulness of same-sex relationships. Conversely, some of those in favour of civil partnerships noted ‘ the diffi cult circumstances concerning lesbian, gay and bisexual (LGB) people in Northern Ireland due to the prevailing social conservatism and dominance of religion in social life’ . 26 In response to religious objections, the Government said that its proposal carried ‘ no intention or desire to interfere with religious beliefs in any way ’.27 While a signifi cant number of opponents also raised concerns about the impact of civil partnership on the so-called ‘ traditional family’ , the Government was unfazed. 28
1.4. DEBATES AND ALTERNATIVES CONSIDERED
No alternatives to the near-equivalent to marriage for conjugal same-sex relationships ultimately embodied in the Civil Partnership Act appear to have been seriously considered in the Northern Ireland-specifi c consultation paper. Th at said, a majority of respondents to it favoured the introduction of a scheme that would include family members and a minority advocated the extension of
24 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, p. 8. 25 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, p. 11. 26 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [3.2], quoting the Coalition on Sexual Orientation. 27 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, p. 15. 28 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, ch. 5.
Intersentia 257 Brian Sloan the proposal to include opposite-sex couples. 29 In response, the Government emphasised that ‘ home-sharers, carers and siblings share important relationships but … their circumstances are diff erent and … they do not have the same case for being recognised in law as a couple ’ , and that ‘ [o]pposite sex couples already have the option of attaining legal status for their relationships through marriage, whether by civil or religious ceremony ’.30 As might be expected, some of those in favour of civil partnerships felt that they did not go far enough or conferred a ‘ second class status ’ ,31 but the Government was adamant that it had no plans to legislate for same-sex marriage. Despite the comments of respondents, it was clear that the Government understandably felt it necessary for Northern Ireland to have a scheme of recognition of same-sex partnership consistent with that in the rest of the UK, not least because of the diffi culties that would otherwise ensue if people moved around the country.32
1.5. IMPACT OF THE INTRODUCTION OF REGISTERED PARTNERSHIP
Part 4 of the Civil Partnership Act 2004 contained the provisions necessary to implement civil partnerships in Northern Ireland, and the fi rst civil partnership ceremonies in the UK subject to the normal waiting period took place in Belfast.33 Th is might be seen as ironic given that Northern Ireland decriminalised private sexual activity between consenting males aft er England and Wales and Scotland did so. 34 It has been said that there were ‘ minor, mainly procedural diff erences between the provisions in the Civil Partnership Act 2004 for Northern Ireland and England and Wales refl ecting the diff erent legal system in Northern Ireland’ . 35 It is diffi cult empirically to test some of the claims made by those who oppose the recognition of same-sex relationships. Tolerance towards same-sex
29 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [8]. 30 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, p. 18. 31 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, at [9]. 32 For discussion of the debates on the UK legislation as a whole, see the National Reports for England and Wales and Scotland by A Hayward and K Norrie in this volume. 33 BBC News, ‘ “ Gay weddings” fi rst for Belfast’ (19.12.2005 ) < http://news.bbc.co.uk/1/hi/ northern_ireland/4540226.stm> accessed 13.02.2017 . 34 Homosexual Off ences (Northern Ireland) Order 1982/1536 (N.I. 19), following the decision in Dudgeon v. United Kingdom , Application no. 7525/76 ( 1981 ) 3 EHRR 40 . Cf. Sexual Off ences Act 1967; Criminal Justice (Scotland) Act 1980. 35 C Fairbairn , H Lyall and J Campbell , Marriage of Same Sex Couples Across the UK: What ’ s the Same and What ’ s Diff erent? , House of Commons Library, Scottish Parliament Information Centre (SPICe) and Northern Ireland Assembly Research and Information Service , Research Paper 54/14 , 2014 , at [1.2].
258 Intersentia Registered Partnerships in Northern Ireland
relationships amongst the general population in Northern Ireland has apparently increased since the introduction of civil partnerships.36 For example, while a survey conducted in 2005 found that only 35 per cent of respondents in Northern Ireland believed that same-sex couples should have the right to marry, the equivalent fi gure in 2012 was 58 per cent.37 Even a prominent member of the socially conservative Democratic Unionist Party, which vociferously opposed civil partnerships, said during a 2015 debate on same-sex marriage that people ‘ should be proud of the fact that our law strikes an appropriate balance between the interests of same-sex couples and the interests of people of faith ’ .38 It has been said that while ‘ [w]hether policy and legislative change is cause or eff ect is debated, it is nevertheless important in respect of public attitudes ’ .39 But even if it were possible to show that such changes in attitude were caused by the introduction of civil partnerships (rather than the reverse), it is diffi cult to argue that a more tolerant society is a negative development. While only 288 households were declared to consist of a same-sex couple in the 2001 census in Northern Ireland,40 there were 1,026 civil partnerships registered in Northern Ireland between 2005 and 2015.41 Again, however, it cannot safely be said that the introduction of civil partnerships actually caused an increase in the number of same-sex relationships. Conversely, the increase in the number of marriages in 2015 in Northern Ireland compared to 2005 42 might counter any suggestion that civil partnerships have ‘ undermined ’ the institution of marriage. Although there was a drop in both the number of marriages and the marriage rate between 2012 and 2013,43 this is likely to be a refl ection of broader social trends. Fears about the impact of same-sex relationship recognition on freedom of religion in Northern Ireland might be justifi ed to some extent. In the high- profi le 2015 and 2016 judgments in Lee v. Ashers Baking Co Ltd, a bakery owned by Christian proprietors was found to have breached the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and the Fair Employment and Treatment Order 1998 by refusing to fulfi l an order for a cake iced with the
36 S McAlister , N Carr and G Neill , Queering the Family: Attitudes towards Lesbian and Gay Relationships and Families in Northern Ireland , Ark , Belfast 2014 . 37 S McAlister, N Carr and G Neill, above n. 36, p. 2. 38 Northern Ireland Assembly Offi cial Report, vol. 109, no. 1 (29.04.2014), p. 16 (Mrs Foster). 39 S McAlister, N Carr and G Neill, above n. 36, p. 4. 40 Northern Ireland Statistics and Research Agency, Census 2001, table UV093 < http://www. ninis2.nisra.gov.uk/public/SearchResults.aspx?sk=uv093&AllAny=1&numToFetch=200&Da taInterBoth=1&FromAdvanced=true&dsk=135&dsv=Census%202001&gk=&gv=&sy=1981 &ey=2037 > accessed 08.11.2017. 41 Northern Ireland Statistics and Research Agency , ‘ Registrar General Annual Report 2015: Civil Partnerships and Civil Partnership Dissolutions ’ < http://www.nisra.gov.uk/ demography/default.asp102.htm > accessed 13.02.2017 , table 9.1. 42 Northern Ireland Statistics and Research Agency, ‘ Marriages ’ < http://www.nisra.gov.uk/ demography/default.asp11.htm > accessed 13.02.2017 . 43 Northern Ireland Statistics and Research Agency, Marriages, Divorces and Civil Partnerships in Northern Ireland 2013, Belfast 2014 , p. 2.
Intersentia 259 Brian Sloan slogan ‘ Support Gay Marriage’ .44 But that case was facilitated by broader equality legislation rather than the introduction of civil partnerships per se, and the legislation does seek to provide a means of balancing rights relating to freedom of religion 45 and rights not to suff er discrimination on the grounds of, inter alia, sexual orientation.
2. SUBSTANCE OF THE REGISTERED PARTNERSHIP REGIME
2.1. FORMATION
2.1.1. Eligibility
Two people are ineligible to enter a civil partnership if: they are not of the same sex;46 either of them is already in a civil partnership or marriage; 47 either is under 1648 (the consent of a parent with parental responsibility or other ‘ appropriate person ’49 being prima facie50 required for those under 18); 51 they are within the prohibited degrees of relationship;52 or ‘ either of them is incapable of understanding the nature of civil partnership ’. 53 A civil partnership will be void if the eligibility criteria are not met. 54 A marriage is void on broadly similar grounds,55 except that, of course, a marriage must be between people of diff erent sexes in Northern Ireland. Th ere is also provision for certain polygamous marriages, and a lack of understanding of the nature of marriage does not expressly render a marriage void per se.
44 Lee v. Ashers Baking Co Ltd [ 2015 ] NICty 2 (see E Fitzsimons , ‘ A Recipe for Disaster ? When Religious Rights and Equality Collide through the Prism of the Ashers Bakery Case’ (2016 ) 15 Hibernian Law Journal 65 for analysis), affi rmed [2016] NICA 39. 45 See, e.g., Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006/439, reg. 16; Fair Employment and Treatment Order 1998/3162 (N.I. 21), Art. 70. 46 Civil Partnership Act 2004, s. 138(1)(a). 47 Civil Partnership Act 2004, s. 138(1)(b). 48 Civil Partnership Act 2004, s. 138(1)(c). 49 Civil Partnership Act 2004, sch. 13 part 1. 50 Cf. Civil Partnership Act 2004, sch. 13 part 2. 51 Civil Partnership Act 2004, s. 145. 52 Civil Partnership Act 2004, s. 138(1)(d); sch. 12. 53 Civil Partnership Act 2004, s. 138(1)(e). 54 Civil Partnership Act 2004, s. 173. 55 Matrimonial Causes (Northern Ireland) Order 1978/1045 (N.I. 15), Art. 13.
260 Intersentia Registered Partnerships in Northern Ireland
2.1.2. Procedure
Th ere are preliminaries to the registration of a civil partnership,56 including an obligation for the intending civil partners to give the registrar a ‘ civil partnership’ notice.57 Th is is equivalent to the ‘ notice of intention to marry’ . 58 A couple are regarded as civil partners of each other once each has signed the ‘ civil partnership schedule’ in the presence of each other, of two witnesses aged at least 16 and the registrar.59 Th e witnesses and registrar must also sign the schedule in the presence of all the relevant parties, 60 and the registrar must then ‘ cause the registration of the civil partnership to be recorded as soon as practicable ’. 61 It appears that the omission of these latter two steps does not, however, aff ect the validity of the civil partnership. 62 Th ese requirements are similar to those for marriage, except that ‘ civil partnerships are registered by signing the civil partnership document, with no words required to be spoken, whereas marriages are solemnized by saying a prescribed form of words ’. 63 Th e Civil Partnership Act expressly provides that ‘ [n]o religious service is to be used while the registrar is offi ciating at the signing of a civil partnership schedule’ . 64 In addition, it has been said that ‘ [n]o civil partnerships are permitted to take place in religious premises in Northern Ireland’ .65 As might be expected, marriages are routinely formed during religious ceremonies on religious premises. 66 It should be noted, however, that a civil marriage must involve a form of ceremony ‘ of a secular nature ’ .67
2.1.3. Statistics
It has been seen that 1,026 couples entered civil partnerships in Northern Ireland between 2005 and 2015. In 2015, there were 89 such civil partnerships registered; 38 involving males and 51 involving females. 68 Th e average age at registration was 33.8 for males and 36.8 for males. Th ere does not appear to have been a pronounced initial surge upon the introduction of civil partnerships: there
56 Civil Partnership Act 2004, ss. 139– 144. 57 Civil Partnership Act 2004, s. 139. 58 Marriage (Northern Ireland) Order 2003/413, Art. 3. 59 Civil Partnership Act, s. 137(1). 60 Civil Partnership Act, s. 137(3). 61 Civil Partnership Act 2004, s. 137(4). 62 Civil Partnership Act 2004, s. 137(2). 63 C Fairbairn, H Lyall and J Campbell, above n. 35, at [1.3]. 64 Civil Partnership Act 2004, s. 137(5). 65 C Fairbairn, H Lyall and J Campbell, above n. 35, p. 8; Civil Partnership Regulations (Northern Ireland) 2005/482, reg. 12(2)(b). 66 Marriage (Northern Ireland) Order 2003/413, Arts. 10 – 17. 67 Marriage (Northern Ireland) Order 2003/413, Art. 19(2)(a). 68 Northern Ireland Statistics and Research Agency, above n. 41, table 9.1.
Intersentia 261 Brian Sloan were only 12 registrations in 2005, and while the highest annual number (116) occurred in 2006, this was equalled in 2010. It is not clear whether the drop in 2015 to 89 from 110 registrations in 2014 can be explained by anticipation of the introduction of same-sex marriage. Th e population of Northern Ireland is estimated to be around 1.852 million people. 69
2.2. DISSOLUTION
2.2.1. Dissolution Requirements
A civil partnership can be dissolved ‘ on the ground that the civil partnership has broken down irretrievably’ .70 A court cannot fi nd that the partnership has so broken down unless it is satisfi ed that one of four ‘ facts ’ is true71 and, conversely, if the court fi nds that one of the facts is true it must grant the relevant dissolution order unless it is satisfi ed that the partnership has nevertheless not broken down irretrievably.72 Th e relevant facts are: that the respondent to the application for a dissolution order ‘ has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent ’ ;73 that ‘ the applicant and the respondent have lived apart for a continuous period of at least 2 years immediately preceding the making of the application ’ and the respondent consents to the order;74 that ‘ the applicant and the respondent have lived apart for a continuous period of at least 5 years immediately preceding the making of the application ’ (irrespective of whether the respondent consents to the dissolution);75 and that ‘ the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the making of the application ’. 76 Th e relevant facts are further fi nessed in the Act. 77 Th e position is largely the same for divorce in relation to a marriage, 78 except that adultery by the respondent is expressed to be a relevant ‘ fact ’ for divorce 79 but not for civil partnership. 80 It should be noted, however, that ‘ infi delity may be a contributory factor where “ … behaviour” is cited as a factor for seeking
69 Northern Ireland Statistics and Research Agency, ‘ NISRA Statistical Bulletin: 2015 Mid- year Population Estimates for Areas within Northern Ireland’ < http://www.nisra.gov.uk/ demography/default.asp17.htm > accessed 13.02.2017. 70 Civil Partnership Act 2004, s. 162(1)(a). 71 Civil Partnership Act 2004, s. 168(3). 72 Civil Partnership Act 2004, s. 168(4). 73 Civil Partnership Act 2004, s. 168(5)(a). 74 Civil Partnership Act 2004, s. 168(5)(b). 75 Civil Partnership Act 2004, s. 168(5)(c). Cf. s. 170. 76 Civil Partnership Act 2004, s. 168(5)(d). 77 Civil Partnership Act 2004, s. 169. 78 Matrimonial Causes (Northern Ireland) Order 1978/1045 (N.I. 15), Art. 3. 79 Matrimonial Causes (Northern Ireland) Order 1978/1045 (N.I. 15), Art. 3(2)(a). 80 Civil Partnership Act 2004, s. 168(5).
262 Intersentia Registered Partnerships in Northern Ireland
dissolution of a civil partnership’ . 81 Similarly, non-consummation can render a marriage voidable, 82 but does not have the same eff ect on a civil partnership.83 While this might cast doubt on the ‘ conjugal ’ nature of civil partnerships, that nature is to some extent preserved by the prohibited degrees of relationship.84
2.2.2. Dissolution Procedure
No application for dissolution of a civil partnership can be presented within two years of its formation, 85 although this does not prevent ‘ the making of an application based on matters which occurred before the end of the 2 year period’ .86 Th e court considering the application is obliged to ‘ inquire, so far as it reasonably can, into ’ the facts alleged by the parties. 87 In addition, it ‘ must not make a dissolution order without considering the oral testimony of the applicant unless for special reasons it orders that such testimony be dispensed with’ , meaning that there is more scrutiny in Northern Ireland than there would be under the so-called ‘ special procedure’ in England and Wales. 88 If a dissolution order is made, it is, ‘ in the fi rst instance, a conditional order’ and cannot be made fi nal for a prescribed period. 89 Th e relevant period is six weeks unless the court decides to shorten it, 90 and it allows, inter alia,
the Crown Solicitor, or any person who has not been a party to proceedings in which the [conditional] order was made, [to] show … cause why the order should not be made fi nal on the ground that material facts have not been brought before the court. 91
Th e court has a range of powers including as to the adjournment of proceedings,92 the giving of directions93 and the rescission of the conditional order and refusal of the fi nal order. 94 Th e procedure is eff ectively the same for divorce.95
81 C Fairbairn, H Lyall and J Campbell, above n. 35, at [1.3]. 82 Matrimonial Causes (Northern Ireland) Order 1978/1045 (N.I. 15), Art. 14(a)– (b). 83 Civil Partnership Act 2004, s. 174. 84 For discussion of these issues in the Act as a whole, see the National Reports for England and Wales and Scotland by A Hayward and K Norrie in this volume. 85 Civil Partnership Act 2004, s. 165(1). 86 Civil Partnership Act 2004, s. 165(2). 87 Civil Partnership Act 2004, s. 168(2). 88 Civil Partnership Act 2004, s. 168(6); see, e.g. and by analogy, Donnelly v. Donnelly [2002] NIFam 16, at [3] (Gillen J). 89 Civil Partnership Act 2004, s. 161(2). 90 Civil Partnership Act 2004, s. 162. 91 Civil Partnership Act 2004, s. 164(2)(b). 92 Civil Partnership Act 2004, s. 166. 93 Civil Partnership Act 2004, s. 167. 94 Civil Partnership Act 2004, s. 172. 95 Matrimonial Causes (Northern Ireland) Order 1978/1045 (N.I. 15), Part II.
Intersentia 263 Brian Sloan
2.2.3. Statistics
Th e fi rst civil partnership dissolutions in Northern Ireland took place in 2010. 96 Th is appears striking given that registration has been possible since late 2005, but the eff ect of the two-year time bar (as there is for divorce) on dissolution applications must be considered. Th ere were seven dissolutions in 2015 in Northern Ireland, fi ve involving men and two involving women.97
2.3. LEGAL CONSEQUENCES/EFFECTS OF REGISTERED PARTNERSHIP
2.3.1. Kinship
Section 246 of the Civil Partnership Act states that, where it applies, ‘ references to a stepchild or step-parent of a person … and cognate expressions, are to be read ’ as though they include relationships established by civil partnership equivalent to those established by marriage.98 For example, a person’ s ‘ stepfather includes a person who is the civil partner of [that person ’ s] father (but is not [that person’ s] parent)’ .99 Th ere is equivalent provision for ‘ in-law ’ relationships.100 Schedule 22 of the Act then specifi es a wide range of Northern Irish legislation to which the interpretative obligation in section 246 applies. 101
2.3.2. Property Consequences
A system of ‘ separation of property ’ is used in Northern Ireland, such that the default principle is that marriage or civil partnership has no eff ect on one’ s ownership of property.102 Th ere are, however, a number of exceptions to this principle. For example, Schedule 16 of the Civil Partnership Act makes provision for court orders to be made, inter alia, where one (current) civil partner has failed to provide reasonable maintenance for the other. 103 As with the largely equivalent jurisdiction for married couples,104 it is likely that this provision will be relatively infrequently invoked.
96 Northern Ireland Statistics and Research Agency, above n. 41, table 10.1. 97 Northern Ireland Statistics and Research Agency, above n. 41, table 10.1. 98 Civil Partnership Act 2004, s. 246(1). 99 Civil Partnership Act 2004, s. 246(1). 100 Civil Partnership Act 2004, s. 246(2). 101 See also Civil Partnership Act 2004, sch. 12. 102 See, e.g., LA Buckley , ‘ Matrimonial Property and Irish Law: A Case for Community? ’ (2002 ) 53 Northern Ireland Legal Quarterly 39, 39 . 103 Civil Partnership Act 2004, sch. 16, para. 1(1)(a). 104 Domestic Proceedings (Northern Ireland) Order 1980/563 (N.I. 5), Art. 3.
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More signifi cantly, a range of powers in Schedule 15 enables a court to re-distribute property and order maintenance (by virtue of the same discretionary jurisdiction) on or aft er dissolution or nullity of a civil partnership, or judicial separation of civil partners.105 Th e possible orders include one for periodical payments, lump sum payments,106 property adjustment orders (to which the family home can be subject),107 and orders relating to pensions.108 In exercising its powers, the court ‘ must have regard to all the circumstances of the case, giving fi rst consideration to the welfare, while under 18, of any child of the family who has not reached 18’ .109 In particular, it must have regard to: ‘ the income, earning capacity, property and other fi nancial resources which each civil partner ’ has or is foreseeably likely to have; ‘ the fi nancial needs, obligations and responsibilities which each civil partner has or is [foreseeably] likely to have ’ ; the standard of living before breakdown; the age and any disability of the parties and the length of the civil partnership; ‘ the contributions which each civil partner has made or is likely in the foreseeable future to make to the welfare of the family’ ; the conduct of the parties to the extent that it would be inequitable to disregard it; and the value of any benefi t that either party will lose the chance to acquire by virtue of the dissolution or nullity. 110 Th ere is also an obligation to consider a clean break.111 Th ese powers are equivalent to those possessed in relation to a married couple.112 In a marital ancillary relief case decided in the High Court of Northern Ireland, Morgan J. was content to say that ‘ [t]he principles on which the court should act are now to be derived from the 3 House of Lords cases, White , [ 113 ] Miller and McFarlane . [ 114 ] ’ .115 It should be noted that there is no equivalent statutory jurisdiction for unmarried couples, whether same-sex or opposite-sex, who might fi nd themselves relying on the general law of property at the end of a relationship. 116
2.3.3. Succession
Matters of succession law in Northern Ireland were addressed in Schedule 14 of the 2004 Act, which amended the relevant pre-existing legislation.
105 Civil Partnership Act 2004, sch. 15, paras. 1(1), 6, 10, 14A. See also para. 1(2). 106 Civil Partnership Act 2004, sch. 15, para. 2. 107 Civil Partnership Act 2004, sch. 15, para. 7. 108 Civil Partnership Act 2004, sch. 15, paras. 11 and 14B. 109 Civil Partnership Act 2004, sch. 15, para. 15. 110 Civil Partnership Act 2004, sch. 15, para. 16; see also para. 17, Part 5. 111 Civil Partnership Act 2004, sch. 15, para. 18. 112 Matrimonial Causes (Northern Ireland) Order 1978/1045 (N.I. 15), Part 3. 113 White v. White [ 2000 ] UKHL 54 . 114 Miller v. Miller; McFarlane v. McFarlane [ 2006 ] UKHL 24 . 115 Stevenson v. Stevenson [ 2008 ] NIFam 8 , at [18]. 116 S e e , e . g . , Gracey v. Beck [2009 ] NICh 59.
Intersentia 265 Brian Sloan
Under the intestacy rules, 117 civil partners are entitled to all of their deceased partner ’ s personal chattels. 118 If the deceased partner leaves issue as well as a surviving civil partner, the survivor is entitled to a statutory legacy of £ 250,000 119 and half of the balance of the estate if there is one surviving child 120 (or the issue of one)121 and one third if there is more than one such child122 (or the issue of more than one). 123 If there are no issue, the surviving civil partner receives £ 450,000 and half of the balance if the deceased has surviving parents or siblings (or the issue of deceased siblings),124 or the whole of the estate otherwise.125 As regards testate succession, entry into a civil partnership revokes a person’ s will unless a contrary intention appears. 126 If the will and/or the intestacy rules fail to make ‘ reasonable fi nancial provision’ for a civil partner, the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979 allows a court to make (additional) provision out of the estate for him or her on a relevant application. 127 Succession law in Northern Ireland treats spouses in essentially the same manner as civil partners.128 Informal cohabitants, however, are not included in the intestacy rules. A surviving cohabitant could bring a claim under the 1979 Order, but he or she needs to show that for two years, ending immediately before the deceased’ s death, he or she was living in the same household as the deceased as the deceased ’ s spouse or civil partner, 129 and that the will or intestacy rules failed to make reasonable fi nancial provision for his or her maintenance. 130
2.3.4. Tax
Th e Government ’ s guidance on civil partnership, published before the 2004 Act came into force, asserted that ‘ [a]s soon as you form a civil partnership
117 As amended by Civil Partnership Act 2004, sch. 14, Part 2. 118 Administration of Estates Act (Northern Ireland) 1955, s. 7(1). 119 Administration of Estates Act (Northern Ireland) 1955, s. 7(2)(b). 120 Administration of Estates Act (Northern Ireland) 1955, s. 7(2)(b)(i). 121 Administration of Estates Act (Northern Ireland) 1955, s. 7(3). 122 Administration of Estates Act (Northern Ireland) 1955, s. 7(2)(b)(ii). 123 Administration of Estates Act (Northern Ireland) 1955, s. 7(3). 124 Administration of Estates Act (Northern Ireland) 1955, s. 7(4). 125 Administration of Estates Act (Northern Ireland) 1955, s. 7(5). 126 Wills and Administration Proceedings (Northern Ireland) Order 1994/1899 (N.I. 13), Art. 13A. 127 Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979/924 (N.I. 8), Art. 3. 128 Administration of Estates Act (Northern Ireland) 1955; Wills and Administration Proceedings (Northern Ireland) Order 1994/1899 (N.I. 13); Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979/924 (N.I. 8). 129 Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979/924, Art. 3(1A) – (1B). 130 Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979/924, Art. 2.
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you and your civil partner will be treated in the same way as married couples are currently treated for tax purposes ’.131 According to the guidance, ‘ [t]he main changes in your tax position will be in relation to capital gains tax and inheritance tax when one of the civil partners dies ’ .132 Th e inheritance tax position, in common with England and Wales and Scotland, is that transfers between both spouses and civil partners on death are exempt from inheritance tax. 133 In addition, the remainder of the ‘ nil rate band’ of the fi rst spouse/civil partner can be applied to the estate of the second of them to die.134 Th e same privileges are not extended to informal cohabitants. As regards income tax, again in common with England and Wales and Scotland, the Finance Act 2014 allows a person in certain circumstances to choose to transfer a fi xed amount of their personal allowance (on which income tax is not charged) to their spouse or civil partner (only).135
2.3.5. Social Security and Welfare Benefi ts
According to the Government ’ s civil partnership guidance, ‘ civil partners who make a claim for income related benefi ts such as Income Support and Income Based Jobseekers Allowance will have their claims assessed in the same way as married people ’ and ‘ will be treated in the same way as married couples … for Social Security Benefi t purposes, including Retirement Pension and Bereavement Benefi t ’ .136 Th e treatment of informal cohabitants in these areas of the law is variable, and it is interesting that the introduction of civil partnerships appears to have prejudiced some same-sex cohabitants (in a material sense) by causing them no longer to be recognised as single applicants for the purposes of certain social security benefi ts. 137
2.3.6. Other Rights, Duties and Entitlements
Civil partners are given broadly the same entitlements as spouses regarding: protection from domestic violence,138 employment law,139 life insurance, fatal accidents and criminal injuries compensation, 140 and tenancy rights. 141 In addition ‘ [a]ny enactment or rule of law relating to the giving of evidence by a
131 O ffi ce of Law Reform , Civil Partnership: What does it mean for you ?, Belfast 2004 , p. 13. 132 O ffi ce of Law Reform, above n. 131, p. 13. 133 Inheritance Tax Act 1984, s. 18. 134 Inheritance Tax Act 1984, s. 8A. 135 Finance Act 2014, s. 11, inserting Income Tax Act 2007, ss. 55A– E. 136 O ffi ce of Law Reform, above n. 131, p. 13. 137 O ffi ce of Law Reform, above n. 131, p. 12. 138 O ffi ce of Law Reform, above n. 131, p. 10. 139 O ffi ce of Law Reform, above n. 131, pp. 14 – 15. 140 O ffi ce of Law Reform, above n. 131, p. 21. 141 O ffi ce of Law Reform, above n. 131, pp. 23 – 24.
Intersentia 267 Brian Sloan spouse applies in relation to a civil partner as it applies in relation to the spouse’ . 142 Th e Government believed that ‘ civil partnership registration will … be evidence of the permanent nature of the relationship ’ for immigration purposes, 143 which would still have to be satisfi ed independently by informal cohabitants. Herring has compiled a detailed account of the legal signifi cance of marriage and civil partnership as compared to informal cohabitation, 144 much of which is also applicable to Northern Ireland.
2.3.7. Representation and Visitation Rights
According to the civil partnership guidance, ‘ [w]hile the concept known as “ next-of-kin ” has no legal basis, once a couple have formed a civil partnership they should generally be regarded as the next-of-kin of each other’ . 145 Th ere is a Prison Visits Scheme to provide funding for relatives in need of assistance to visit inmates,146 and it was the Government’ s intention that ‘ civil partners should be treated on the same basis as married partners in terms of the information required as proof of relationship ’ . 147 Decision-making on fi nancial and property matters for people who lack capacity is facilitated by the granting of powers of attorney by the person concerned (before he or she loses capacity), and the choice of attorney is made for the person granting the power. 148 Where no attorney has been validly appointed, a ‘ controller ’ may be appointed by the Offi ce of Care and Protection of the High Court.149 Th is may, but need not be, a civil partner, and could be an informal cohabitant. Funeral arrangements are oft en made by executors where they have been appointed by will. Th e equivalent position in cases of intestacy is that of the ‘ administrator ’ appointed by the court, and a surviving spouse or civil partner has priority in this respect.150
2.3.8. Children
It has been seen that joint adoption by anyone other than a married couple was not possible in Northern Ireland until the relevant guidance was updated in
142 Civil Partnership Act 2004, s. 208. 143 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 13, p. 25. 144 J Herring , Family Law, 7th ed., Pearson , Harlow 2015 , pp. 113– 119 . 145 O ffi ce of Law Reform, above n. 133, p. 8. 146 Northern Ireland Prison Service, ‘ Prison Visits Scheme: Contribution Towards Travel Costs ’ , Belfast 2013. 147 O ffi ce of Law Reform, Department of Finance and Personnel, above n. 11, at [5.5.2]. 148 Enduring Powers of Attorney (Northern Ireland) Order 1987/1627 (N.I. 16). 149 Mental Health (Northern Ireland) Order 1986/595 (N.I. 4), Art. 101. 150 Th e Rules of the Court of Judicature (N.I.) 1980/346, Order 97, rule 20.
268 Intersentia Registered Partnerships in Northern Ireland
response to Re G. In that case, Lord Hope noted that ‘ perhaps due to an oversight, section 203(4) of the 2004 Act … excluded all civil partners, whether singly or as a couple, from eligibility’ to adopt. 151 It apparently did so by extending the prima facie bar on sole adoption by married people to include sole adoption by someone who happens to be in a civil partnership, 152 notwithstanding that such a person was not given the corresponding opportunity to adopt jointly with his or her partner at that time. In Re Northern Ireland Human Rights Commission’ s Application for Judicial Review , the Court of Appeal held that, consistently with Re G, the amended provision should be read so as ‘ not to make it impossible for a gay person in a civil partnership to adopt but, as in the case of spouses, to require the adoption to be by both partners’ .153 It seems that, unlike in England and Wales,154 a parent who wishes his or her civil partner to become a child’ s second parent by adoption must also adopt his or her own child.155 According to the Regional Adoption and Fostering Service, it is possible to apply to become a foster parent ‘ [w]hatever your marital status’ and ‘ [w]hatever your sexual orientation ’. 156 Th e parenthood provisions of the Human Fertilisation and Embryology Act 2008 apply to Northern Ireland.157 Th is means, inter alia, that if a woman is in a civil partnership ‘ at the time of the placing in her of the embryo or the sperm and eggs or of her artifi cial insemination ’ , her civil partner is to be treated as a parent of the resulting child, unless that civil partner did not consent to the relevant act.158 Male civil partners can apply to court for a parental order to give eff ect to a surrogacy agreement.159 Th e 2004 Act amended160 the Children (Northern Ireland) Order 1995 to enable people to acquire parental responsibility (PR) for the children of their civil partners, provided that civil partner parent also has PR for the relevant child.161 It did so by including civil partners as well as spouses of parents in the defi nition of ‘ step-parent ’ . Th e acquisition of PR by a step-parent can occur
151 Re Northern Ireland Human Rights Commission’ s Application for Judicial Review [ 2008 ] UKHL 38 , at [40]. 152 Adoption (Northern Ireland) Order 1987/2203 (N.I. 22), Art. 15(1)(a). 153 [2013] NICA 37, at [36] (Girvan LJ). 154 Adoption and Children Act 2002, s. 46(3)(b). 155 Adoption (Northern Ireland) Order 1987/2203, Arts. 15, 40. 156 Regional Adoption and Fostering Service, ‘ Who can foster ? ’ < http://www.adoption andfostering.hscni.net/fostering/whocanfoster> accessed 13.02.2017. 157 See further National Reports for England and Wales and Scotland by A Hayward and K Norrie in this volume. 158 Human Fertilisation and Embryology Act 2008, s. 33. 159 Human Fertilisation and Embryology Act 2008, s. 54. 160 Civil Partnership Act 2004, s. 199(4). 161 Children (Northern Ireland) Order 1995/755, Art. 7(1C).
Intersentia 269 Brian Sloan by court order, 162 but (unlike in England and Wales) 163 apparently not also by agreement with the child ’ s parents with PR. Unmarried partners who are not a child ’ s parent would apparently have to apply for a collateral order (such as a residence order) to acquire PR, which would subsist only while that order was in force.164
3. CONFLICT OF LAWS
As the civil partnership guidance explains, ‘ [t]here are restrictions aff ecting the formation of a civil partnership in the UK where either of the proposed civil partners is subject to UK immigration control (eg on a visa)’ , albeit that ‘ Swiss nationals and nationals of the European Economic Area (EEA) are not subject to immigration control ’ . 165 Th ere are ‘ also separate registration procedures when one of the parties to the intended civil partnership is a non-EEA national ’. 166 Part 4 of Schedule 23 of the 2004 Act (as amended) contains immigration provisions similar to those in England and Wales, applicable to civil partnerships that are to be formed in Northern Ireland.167 Th e 2004 Act deals with the recognition of foreign relationships as civil partnerships through the concept of an ‘ overseas relationship ’.168 An ‘ overseas relationship ’ must be ‘ registered (whether before or aft er the passing of [the 2004] Act) with a responsible authority in a country or territory outside the United Kingdom ’ by two people who ‘ under the relevant law[ 169 ] [were] of the same sex’ 170 and were not already in a marriage or civil partnership at the time of registration. 171 In addition, the ‘ overseas relationship’ must either be a ‘ specifi ed relationship’ or meet the ‘ general conditions’ .172 A list of ‘ specifi ed relationships ’ is provided in Schedule 20, and can be amended by the Secretary of State with the consent of, inter alia, the Northern Ireland Department of Finance and Personnel.173 Th e ‘ general conditions ’ are that the relevant relationship ‘ may not be entered into if either of the parties is already a party to a relationship of that kind or lawfully
162 Children (Northern Ireland) Order 1995/755, Art. 7(1A). 163 Children Act 1989, s. 4A. 164 Children (Northern Ireland) Order 1995/755, Arts. 7(1A), 12. 165 O ffi ce of Law Reform, above n. 131, p. 5. 166 O ffi ce of Law Reform, above n. 131, p. 6. 167 Cf. Civil Partnership Act 2004, sch. 3, Part 2. 168 Civil Partnership Act 2004, s. 212(1)(b) 169 But see also Civil Partnership Act 2004, s. 216. 170 Civil Partnership Act 2004, s. 212(1)(b)(i). 171 Civil Partnership Act 2004, s. 212(1)(b)(ii). 172 Civil Partnership Act 2004, s. 212(1)(a). 173 Civil Partnership Act 2004, s. 213.
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married ’, 174 and ‘ is of indeterminate duration’ , 175 and that its eff ect is that the parties are either ‘ treated as a couple either generally or for specifi ed purposes’ , or ‘ treated as married’ .176 If the parties are in an ‘ overseas relationship’ , they will be treated as civil partners provided they ‘ had capacity to enter into the relationship’ and ‘ met all requirements necessary to ensure the formal validity of the relationship ’ under the relevant law.177 Th ere are, however, additional restrictions relating to the prohibited degrees of relationship and the minimum age of 16 for a party domiciled in the UK. 178 Finally, there is a catch-all bar to treatment as civil partnerships of relationships ‘ if it would be manifestly contrary to public policy to recognise the capacity, under the relevant law, of one or both of [the parties] to enter into the relationship ’ .179 Th e Act now expressly provides that, ‘ for the purposes of the application of this Act to England and Wales, marriage is not an overseas relationship’ . 180 Th is subsection allows for the recognition of overseas same-sex marriages as marriages per se in England and Wales, but it is clearly not applicable in Northern Ireland so that such marriages will continue to be recognised as civil partnerships (at best) there. Conversely, a registered partnership entered by an opposite-sex couple overseas will fall outside the defi nition of an ‘ overseas relationship’ due to the gender requirement, and will not be recognised as a civil partnership in Northern Ireland (or elsewhere in the UK). Th e availability of same-sex marriage elsewhere in the UK creates a similar issue of recognition in Northern Ireland. Th e Marriage (Same Sex Couples) Act 2013 expressly provides that
[u]nder the law of Northern Ireland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership formed under the law of England and Wales (and accordingly, the spouses are to be treated as civil partners),181
subject to any order by the Secretary of State and any contrary legislative provision.182 A statutory instrument makes equivalent provision in respect of Scottish same-sex marriages. 183
174 Civil Partnership Act 2004, s. 214(a). 175 Civil Partnership Act 2004, s. 214(b). 176 Civil Partnership Act 2004, s. 214(c). 177 Civil Partnership Act 2004, s. 215(1). 178 Civil Partnership Act 2004, s. 217. 179 Civil Partnership Act 2004, s. 218. 180 Civil Partnership Act 2004, s. 212(1A), inserted by Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014/560. See also s. 214 as it applies to Scotland. 181 Marriage (Same Sex Couples) Act 2013, sch. 2, para. 2. 182 Marriage (Same Sex Couples) Act 2013, sch. 2, para. 3. 183 Marriage and Civil Partnership (Scotland) Act 2014 and Civil Partnership Act 2004 (Consequential Provisions and Modifi cations) Order 2014/3229, Art. 6.
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4. SAME-SEX MARRIAGE
It has been seen that it is currently not possible to enter a same-sex marriage in Northern Ireland. Th e matter is currently within the competence of the Northern Ireland Assembly, a majority of whose voting members (50.48 per cent) voted in favour of marriage equality in November 2015.184 Th is was the fi ft h time that the matter had been voted upon since 2012, and the fi rst time that same-sex marriage had received majority support. 185 Th e position is complicated, however, by the structure of the legislative system in Northern Ireland and the use of a ‘ petition of concern’ in relation to all fi ve votes, meaning that simple majority support is insuffi cient. Th irty Members of the Legislative Assembly (MLAs) may register a ‘ petition of concern’ relating to a particular matter on which the Assembly is to vote, which causes ‘ the vote on that matter [to] require cross- community support ’. 186 ‘ Cross-community support’ means either the support of a majority of both ‘ the designated Nationalists voting ’ and ‘ the designated Unionists voting’ as well as of the Assembly as a whole, or the support of 60 per cent of the total voting and 40 per cent of both the designated Nationalists and Unionists voting.187 Th is is signifi cant because while all voting Nationalist MLAs voted in favour of the November 2015 equal marriage motion, only four of 55 Unionists did so,188 meaning that the November motion ultimately failed and that any similarly-composed Assembly is likely to produce the same result. Recent opinion polls have suggested that a signifi cant majority of the Northern Irish population is in favour of same-sex marriage.189 Th e apparent mismatch between popular opinion and the views of pivotal elected representatives has led to calls for a referendum on same-sex marriage to be held in Northern Ireland. 190 Th e prospects for such a referendum are currently unclear. Th e future of civil
184 Northern Ireland Assembly, ‘ Motion: Marriage Equality’ (02.11.2015 ) < http://aims. niassembly.gov.uk/plenary/details.aspx?aff =2344&per=151&sel=1&ind=16&prv=0&doc= 242152&pn=0&tab=0&sid=ms&cid=&cn= > accessed 13.02.2017 . 185 BBC News, ‘ Same-sex marriage: Proposal wins assembly majority but fails over DUP block’ ( 02.11.2015 ) < http://www.bbc.co.uk/news/uk-northern-ireland-politics-34692546 > accessed 13.02.2017 . 186 Northern Ireland Act 1998, s. 42(1). See generally, e.g., A Schwartz , ‘ How unfair is cross- community consent ? Voting power in the Northern Ireland Assembly ’ ( 2010 ) 61 Northern Ireland Legal Quarterly 349 . 187 Northern Ireland Act 1998, s. 4(5). 188 Northern Ireland Assembly, above n. 184. 189 Belfast Telegraph , ‘ Northern Ireland says yes to same-sex marriage, latest polling fi nds ’ ( 09.12.2016 ) < http://www.belfasttelegraph.co.uk/news/northern-ireland/northern-ireland- says-yes-to-samesex-marriage-latest-polling-fi nds-35281876.html > accessed 13.02.2017 . 190 H McDonald , ‘ Labour to back calls for gay marriage referendum in Northern Ireland ’ ( Th e Guardian, 09.09.2015 ) < http://www.theguardian.com/uk-news/2015/sep/09/labour-to-back- calls-for-gay-marriage-referendum-in-northern-ireland > accessed 13.02.2017 .
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partnerships in the event that same-sex marriage is introduced is also unclear. Th e campaigning organisation ‘ Love Equality ’ asserts that:
Civil partnerships are great for those people who want to enter them but many people want to get married and see civil partnerships as something given less societal respect and understanding than marriage. 191
5. CONCLUSIONS
Th e extent to which social attitudes towards same-sex relationships and lesbian, gay and bisexual people have apparently changed in Northern Ireland in recent years is remarkable. While the precise relationship between this change and the implementation of the Civil Partnership Act might be debated, the Act cannot possibly be irrelevant to the greater tolerance now in evidence. Although civil partnerships were arguably imposed upon Northern Ireland at a time when devolved political institutions were unable to resist them due to ‘ direct rule ’, it is signifi cant that they remained even when the powers of the Assembly and the Executive were restored. On the assumption that same-sex couples should have substantive equality with opposite-sex couples, in the author ’ s opinion there are at least three features of the legal position rendering the retention of civil partnerships in their current form essential. First, there is the law’ s conferral of distinctive and important substantive rights and obligations on formal relationships. Secondly, there is the exclusion of people within the prohibited degrees of relationship from such formal relationships.192 Th irdly, there is the current lack of availability of same- sex civil marriage in Northern Ireland. If any of these features of the law change in Northern Ireland, however, discussion might legitimately be had about whether civil partnerships should be symbolic only or confer fewer substantive rights; whether they should be opened to include siblings and ‘ caring ’ relationships; whether they should be made available to opposite-sex couples (a possibility that was raised by some respondents during the original civil partnership consultation); or whether they should be abolished altogether. In my own view, civil partnerships might ultimately provide an important opportunity to move beyond the conjugal model of relationship recognition. Th e most-discussed change is inevitably the introduction of same-sex marriage in Northern Ireland, which has the support of a majority of the population and a number of high-profi le campaigning organisations but
191 Love Equality, ‘ Frequently Asked Questions’ < http://loveequalityni.org/faqs/ > accessed 13.02.2017. 192 Cf., e.g., B Sloan , Informal Carers and Private Law , Hart Publishing , Oxford 2013 , ch. 6.
Intersentia 273 Brian Sloan remains (even in purely civil form) particularly controversial for many religious groups and individuals. 193 Th e province certainly looks isolated in the British Isles following the introduction of same-sex marriage in England and Wales, Scotland and the Republic of Ireland.194 Th is is true in spite of the then Minister of Finance and Personnel’ s strong statement during one of the Assembly’ s debates on the topic that ‘ [l]egal developments in other jurisdictions may be of interest, but they are not determinative of the law in this jurisdiction, and it is wrong to suggest that they should be [because] [d]iff ering laws in diff erent jurisdictions is the very essence of devolution ’ ,195 which in any case is out of step with public opinion. It is also noteworthy that a signifi cant argument in favour of the implementation of civil partnerships in Northern Ireland related to the problems that would be caused by inconsistency between diff erent parts of the UK, whereas this is precisely the situation now prevailing as regards same- sex marriage. Moreover, responding to the UK Government’ s consultation on equal marriage for England and Wales, the Northern Ireland Human Rights Commission (NIHRC) expressed concern that ‘ a [relevant] change in the law in England and Wales may lead to an unequal level of human rights protection across the jurisdictions of the United Kingdom’ , 196 and marriage per se is of course of enormous importance for many same-sex couples.197 Th at said, the recognition of same-sex marriages as civil partnerships avoids the substantive diffi culties that would have prevailed had Northern Ireland failed to recognise civil partnerships altogether, and the NIHRC itself admitted that
[t]he restriction of marriage to opposite-sex couples does not violate … international [human rights] standards and this is clear from both the International treaties and the jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee. 198
193 See, e.g., C Fairbairn, H Lyall and J Campbell , above n. 35, pp. 11 – 12; J Evans and J Tonge , ‘ Partisan and religious drivers of moral conservatism: Same-sex marriage and abortion in Northern Ireland’ Party Politics (forthcoming, published online 10.07.2016 ) < http://journals. sagepub.com/doi/full/10.1177/1354068816656665 > accessed 13.02.2017 . 194 Marriage (Same Sex Couples) Act 2013; Marriage and Civil Partnership (Scotland) Act 2014; Marriage Act 2015 respectively. 195 Northern Ireland Assembly Offi cial Report, vol. 94, no. 6 (29.04.2014), p. 51 (Mr Hamilton). 196 Northern Ireland Human Rights Commission, ‘ Response to Consultation on Same Sex Marriage in England and Wales 11 06 12 ’, Belfast 2012, p. 2. 197 See, e.g., K Browne and C Nash , ‘ Opposing Same-sex Marriage, by Supporting Civil Partnerships: Resistance to LGBT Equalities’ in N Barker and D Monk (eds.), From Civil Partnership to Same-Sex Marriage: Interdisciplinary Refl ections , Routledge, Abingdon 2015 . 198 Northern Ireland Human Rights Commission, above n. 196, p. 3.
274 Intersentia Registered Partnerships in Northern Ireland
Consistently with this, the High Court refused to issue a declaration that a marriage entered by a same-sex couple in England was valid under the law of Northern Ireland in 2017. 199 Th e political crisis surrounding the Northern Ireland Executive and Assembly at the time of writing may well have an eff ect (either positive or negative) on the prospects for same-sex marriage in Northern Ireland,200 although the Conservative Party ’ s current reliance on the socially conservative Democratic Unionist Party to secure a majority in the UK House of Commons means that it is unlikely to apply very much pressure on the issue.201 For the time being, however, civil partnerships provide vital and fulsome recognition for same-sex couples in Northern Ireland.
199 Re X [ 2017 ] NIFam 12 . 200 See, e.g., BBC News, ‘ Stormont could be “ up and running in weeks” – Coveney’ (28.09.2017 ) < http://www.bbc.co.uk/news/uk-northern-ireland-41427667 > accessed 02.10.2017 . 201 See, e.g., N Duffy , ‘ DUP responds to Th eresa May ’ s call for equal marriage in Northern Ireland ’ (PinkNews , 20.07.2017 ) < http://www.pinknews.co.uk/2017/07/20/dup-responds-to- theresa-mays-call-for-equal-marriage-in-northern-ireland/ > accessed 02.10.2017 .
Intersentia 275