What will happen to civil partnership if the marriage referendum passes?

What is civil partnership?

Civil partnership was introduced in 2011, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Civil Partnership is confined to same-sex couples only. Both parties must be aged 18 or over, and must not be closely related to each other. They must not already be in a civil partnership or marriage with other people. The process of entering into a civil partnership is very similar to marriage except that there is no facility for recognising a church ceremony. While there is nothing in the Act saying that you must be gay or bisexual, civil partnership legislation was clearly designed to facilitate the formalisation of same-sex romantic unions. Civil partnership confers most if not all of the rights and obligations associated with marriage, though there are some significant exceptions (discussed here).

What will happen to civil partnership if the marriage referendum passes?

The Draft General Scheme of the Marriage Bill 2015 indicates what is likely to happen if the marriage referendum passes. While existing civil partnerships will remain intact, new civil partnerships will not be permitted. The Draft Bill proposes that the part of the Civil Registration Act 2004 (Part 7A, inserted by the 2010 Act) that facilitates the celebration of civil partnerships will be repealed. This means that while existing civil partners will continue to be able to exercise the rights and obligations imposed by law, no new civil partnerships may be formed unless notice has been given prior to the enactment of the Bill.

An allied consequence is that those same-sex couples who enter into civil partnerships abroad after the Draft Bill comes into force will not be recognised as civil partners in Ireland, though they should be able to marry each other in Ireland.

Many existing civil partners will likely opt to marry. A small number of civil partnerships may end in dissolution, while others will end on the death of a partner. In time, this would effectively mean that civil partnership will fade into history.


Will civil partners be able to marry?

Currently, being in a civil partnership is an impediment to marriage. Under the proposed legislation, however, two people who are in a civil partnership with each other will be able to marry each other in the normal manner. The effect of the marriage will be to dissolve the pre-existing civil partnership.

The Draft Bill proposes that existing civil partners will be able to marry each other in the same way as any other couple. For this purpose, it seems that the couple will have to go through the normal process for solemnising a marriage, including giving three months' notice. Same-sex couples who have already given notice to enter into a civil partnership but who have not yet formalised their civil partnership will be able to treat this notice as notice to marry, if they wish.

Some couples may choose to remain as civil partners, though it is unlikely many will do so. Civil partnership was undoubtedly a significant political achievement. It offers vital legal protections and recognition in an extensive array of contexts, with significant practical implications for gay couples. Above all, it confers a status that previously was unavailable to same-sex couples, and a greater visibility of same-sex unions. That said, it is widely seen as a substitute for marriage, and an inadequate one in many people's eyes. It is very unlikely that civil partnership would have been introduced had marriage been open to same-sex couples in 2010.

There is a remote risk arising for those who remain in a civil partnership that civil partnership will not ‘keep pace’ with marriage. There is nothing in the Constitution requiring the State to treat civil partnership the same as marriage. As such, the risk arises for those who 'hold out' that the conditions governing their civil partnership may be changed (or not changed) such that the similarities between marriage and civil partnership law (which at the moment are quite strong) will diminish over time. That said, to date the State has tended in new legislation passed after 2010 to treat civil partners and spouses the same, such that the differences between the two types of union have diminished in the interim. There is no reason to believe this will change.

Why not keep civil partnership?

The rationale for preventing new civil partnerships being formed lies in the constitutional position of marriage. A law that induces a couple not to marry may potentially be found unconstitutional as an 'attack' on the institution of marriage under Article 41.3.1 of the Constitution. The logic of this is contestable, but there is some evidence in case law that the courts would see the retention of a fully-fledged alternative to marriage as undermining the constitutionally protected status of marriage on the basis that it may dissuade couples who might otherwise have married from marrying each other. (See the discussion in John Mee, “Cohabitation, Civil Partnership and the Constitution” in Doyle and Binchy (eds) Committed Relationships and the Law (Dublin: Four Courts Press, 2007) at 201-207.)

This is not currently a problem for civil partnership; civil partnership currently provides no disincentive to marriage as (a) marriage is foreclosed to civil partnership's current audience and (b) couples who can marry cannot enter into a civil partnership. As such it is not possible to say that couples are being induced by civil partnership not to marry; couples who can enter into civil partnership cannot marry as the law currently stands.

If, however, marriage were to be extended to same-sex couples, the position of civil partnership would become more precarious. In light of the jurisprudence of the European Court of Human Rights (particularly Vallianatos v Greece), it might prove difficult to justify confining civil partnerships only to same-sex couples. Notably, however, in England and Wales civil partnerships remain confined to same-sex couples even in the wake of the extension of marriage to such couples. A challenge to the exclusion of opposite-sex couples from civil partnership was rejected as inadmissible before the European Court of Human Rights; the reasons for the verdict remain elusive.

From a constitutional point of view, however, retaining civil partnership and certainly extending it to opposite-sex partners might potentially be seen as providing an alternative that may be attractive to some and may dissuade couples from marrying where they might otherwise have married.

Will anyone lament the demise of civil partnership?

It is likely that few LGBT people consider civil partnership preferable to marriage. Indeed some in the LGBT community (though not all) see civil partnership as marking out same-sex couples as inferior to opposite sex couples and regard it as a mark of second-class citizenship. Others argue that it was a significant practical and political achievement in a context where marriage was not on the table, but readily acknowledge that the aim was not to create a rival to marriage but an institution delivering as many as possible of the rights and obligations conferred by marriage.

The UK Government's review of civil partnership found comparatively little support for extending civil partnerships to opposite-sex couples. Three-quarters of respondents opposed such an extension (though a majority favoured retaining civil partnership for same-sex couples). It is possible, however, that some same-sex and opposite-sex couples might prefer the option of civil partnership. Some might regard civil partnership as lacking the baggage of marriage. By definition, there can be no gendered division of labour within civil partnership. It is wholly egalitarian in its origins and history. While marriage is now recognised as a union of equals, it was not only so; its dark history features married women losing their legal personality, their income and property, their nationality and domicile, their jobs, and, even up their right to bodily integrity (given the former exemption for marital rape and the often lax responses to domestic violence). While these phenomena are now mostly a matter of history, they nonetheless make for a rather troubling legacy, one of which civil partnership is entirely free.

CP, moreover, is wholly secular, with no association with religion (in the sense that it is not open to a religious minister to celebrate a civil partnership) which may be attractive to someone with strong secularist views. (Though equally, 29% of marriages in 2013 were civil marriages with no religious element.) It is also easier to exit than marriage, though that is arguably not a good motive or basis for entering into CP!  

It is indeed arguable that the introduction of marriage for same-sex couples would shore up the institution of marriage by securing the ultimate (though not immediate) demise of an alternative to marriage. The closing off of civil partnership to new entrants would, after all, ensure that (except for some limited protection for cohabitants) marriage will be the 'only show in town'.

(A declaration of self-interest: I have a book on civil partnership law, the future sales of which are unlikely to do well if what is described above comes to pass! As Gloria Gaynor might have said, 'I will survive'.)