Missing Pieces: The Family Home & Finance
Yesterday, Marriage Equality launched its Just Love? campaign. Coinciding with the launch, Marriage Equality released its report, Missing Pieces, an audit of civil partnership as compared with marriage. The report reveals 169 differences between the two. Here, we look at the first two areas examined:
Chapters 2 and 3 of the Report looks at the issues of the family home and finance, respectively.
- The family home
At yesterday’s launch, Dr Judy Walsh of the UCD School of Social Justice noted that many of the aspects highlighted by the audit radiate from the failure to recognise families and the relationships between parents and children (including non-biological children).
The legal differences between civil partnership and marriage are spread a range of issues – from additional ‘red tape’, to a serious lack of protection and support for civil partners and their families at times of crisis.
In relation to the family home and the protections afforded to it under Irish family law, there were found to be 25 differences. One such difference is in the terminology used to describe the home of civil partners as a “shared home”, and not as a “family home” as with married spouses.
Significantly – and worryingly – children are omitted from the provisions relating to the “shared home”: under the Family Home Protection Act, the definition of a dependent child in the “family home” extends beyond biological or legally adopted children, and includes non-biological children, “where one [married] spouse has knowingly treated a child as a member of the family” – thus recognising the need for children in these circumstances to be protected.
Despite this existing broad definition, however, dependent children are omitted from such protection in the “shared home” provisions of the Civil Partnership Act, and therefore no protection is afforded to a child and the child’s home by these provisions.
Similarly, there is a lack of home protections for civil partners who are deserted – this could mean, for instance, that where a person in a civil partnership has been deserted by their partner, the latter may dispose of the “shared home” property in court; the law relating to a deserted spouse in the “family home”, by contrast, prevents the deserting spouse from so acting.
There are also a lack of provisions to include the hardship suffered by a spouse in the assessment of certain relief housing grants.
A wide range of provisions fall under the umbrella term of finance, including taxation, employment, pensions, and other miscellaneous provisions which deal with financial matters, and a total of 18 differences were identified.
Importantly, this part of the audit included a review of more recent legislation, including the Finance Act (No. 3) 2011. This review found that, while the current government appears to be taking a more progressive approach to extending rights to registered civil partners and their children, Civil Partnership as a separate unequal institution, is of itself a structural barrier to achieving equality.
Taxation: The tax treatment regarding “separated” spouses includes those who are “separated but living under the same roof”, a provision which may be especially important in the current climate, where it may not be realistic or viable for the spouses to sell the property; no such treatment applies to a civil partners.
According to Marriage Equality’s report, tax legislation can only operate within the confines of general law, which means where the Civil Partnership Act does not achieve equivalence, tax changes are subject to these limitations also. This may explain the differences outlined in the report, and was the reason given by the Minister for Finance for rejecting proposed amendments to address these inequalities, prior to the Civil Partnership Bill’s enactment.
Therefore without equal access to civil marriage, the consequence for same-sex couples appears to be that civil partnership has created a structural barrier to achieving full equality, in the area of taxation.
It appears that in the areas of employment and pensions, however, equivalence in treatment for civil partners has been achieved when compared to spouses.
Other finance issues: The audit of the other miscellaneous provisions examined found six differences in treatment. Four of these differences are in relation to provisions regarding civil legal aid.
One of the provisions sets out a specific exemption for engaged or cohabiting opposite sex couples, which allows them to apply for legal aid in respect of a property dispute. This exemption has not been extended to same-sex couples, who are engaged, nor to same-sex couples who are cohabiting.
Again this difference highlights a structural inequality between civil partnership and civil marriage as, with no legal concept of engagement for civil partners, it is not possible to replicate this important exemption. The lack of equivalence for cohabiting same-sex couples seems to be based on the wording of the section of the Civil Legal Aid Act, which defines cohabitating, as two persons who are living together as man and wife.
NB! Social welfare: The Social Welfare code has significantly more legislative amendments and regulations enacted each year. This made the audit of this area particularly challenging and more time is needed to ensure that every regulation and act which remains in force has been examined.
Therefore this part of Marriage Equality’s audit is ongoing, and a separate report on the findings will be published in the early part of 2012.
- Parent and Child and Miscellaneous Provisions