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Same Sex Couples: The Right to Marry & Children’s Rights

I welcome the recent announcement and commitment given by the Government to hold a referendum on same sex marriage in 2015. Same sex couples currently have no legal entitlement to marry in Ireland, which is against the trend across Europe and internationally. In the last decade, at least 14 other countries have extended the right to marry to same sex couples, and in some cases the full right to adopt.

What is the legal position of Same Sex Couples in Ireland in 2013?

Although there is no legal right to marry, couples can register a Civil Partnership under the Civil Partnership and Certain Rights of Co-Habitants Act 2010, which came into force in January 2011….a rather large title for a fairly straight forward Act. A Civil Partnership is legally very similar to marriage, and the 2010 Act reflects this in terms of the financial, property and pension rights which it gives.

However, the Act falls down when it comes to children. There is a lack of recognition of the rights of same sex parents in relation to their children, and – equally – of the rights of children of same sex couples in relation to their parents.

Under the Act, only the biological parent of a child has legal rights concerning the child, and only that parent is the legal guardian. There is no recognition of the legal relationship between the child and the non-biological parent.

How does this effect the non-biological parent?

As this parent is not a legal guardian, their parenting capacity is greatly restricted. They have no legal entitlement to make medical, religious, educational or other welfare decision about the child. They do not even have the right to have a say in the making of these decisions. Practically, this affects such things as choosing medical care or treatment, applying for a passport, or even choosing a school. Most importantly, the non-biological parent has no right to apply for custody.

The only right which the parent has is the right to apply for access, but only when they can prove that they have acted in loco parentis with regard to the child.

Adoption

In the area of adoption, only one of the same sex couple can apply to adopt – they are not permitted to adopt jointly.

It is envisaged that the new Family Relationships Bill proposed by Minister Shatter will address issues around parenting and guardianship and will hopefully come into effect long before 2015. This is a long awaited and recommended piece of legislation, which will bring our family law closer to 2013 society and cater for the many and varied types of families which exist in our society.

This Bill may address the guardianship gap for same sex couples and for step-parents situations and it is hoped that it will address not just the rights of adult parents or step-parents, but also the rights of dependent children within these family structures.

Creating an equal society for all families.

It’s only 20 years since it became illegal to dismiss someone from employment on the basis of their sexual orientation in the Republic of Ireland, and it’s just 17 years since male homosexuality was decriminalised here. But we still have some way to go…..

The European Court of Justice has recently recognised the same sex family as falling within the legal definition of “family life”. Taking the next step of creating a legal framework for same sex marriage in 2015 will solidify the rights and relationships of such families here.

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