A lesbian couple are bringing a case to the High Court seeking some legal recognition for their relationship. The case, which, if successful, would have wide-ranging implications for all cohabiting couples, comes up in the High Court this morning, when it is expected a date will be set for hearing, writes Carol Coulter, Legal Affairs Correspondent.
According to the last census, taken in 2002, there were 77,600 family units based on cohabiting couples in Ireland, a figure that had more than doubled since the previous census. Two-thirds of them were childless.
In the same census 1,300 couples described themselves as same-sex cohabiting couples, of whom two-thirds were male. It is thought that many cohabiting same-sex couples do not identify themselves as such in the census.
The couple in the present case are seeking a judicial review of the Revenue Commissioners' refusal to recognise them as a couple for taxation purposes.
At the moment a married couple in which one partner is not working outside the home have a tax advantage over other cohabiting couples.
It is understood that the couple have had a wedding ceremony in another jurisdiction, and will argue that their commitment deserves recognition in the tax code. They are represented by a legal team that includes leading constitutional lawyer Dr Gerard Hogan SC.
Taxation is just one area where cohabiting couples are at a disadvantage compared with married couples. Other issues include inheritance rights, where the surviving partner cannot inherit the couple's shared home without incurring the same inheritance tax as any non-relative, and health issues, where the partner has no right to be treated as next of kin, or to be consulted in any way concerning the health of the other partner.
Last year the Equality Authority issued a paper arguing for legal recognition to be given to cohabiting couples, including same-sex couples, especially with regard to these issues.
The issue of gay marriage, or any form of legal recognition of gay unions, proved controversial in the United States last week, where 11 states had a ban on legislating along these lines on the ballot paper.
Marriage has special protection under the Irish Constitution, and the Irish courts have been reluctant to give recognition to non-marital unions even when there have been cohabitation agreements.
In a 1997 case Mr Justice Peter Kelly refused to uphold such an agreement, citing the special position of marriage under the Constitution. "To permit an express cohabitation contractto be enforced would give it a similar status in law as a marriage contract," he said.
"[The] absence of intervention on the part of the legislature suggests to me that it accepts that it would be contrary to public policy, as enunciated in the Constitution, to confer legal rights on persons in non-marital unions akin to those who are married."
However, the Oireachtas Committee on the Constitution has recently undertaken a review of the place of marriage and the family in the Constitution, and has called for submissions from the public. Among the issues it will consider are the legal recognition of gay unions, and the place of the non-marital family in Irish law.
The European Convention on Human Rights already recognises families other than those based on marriage, and the Review Group on the Constitution recommended that some recognition be given to non-marital families in the Irish Constitution.