Brian Tobin: Demise of civil partnership an unfortunate consequence of marriage equality 

Since 2015, significant developments have hindered greater familial diversity in Ireland by denying those couples opposed to marriage an alternative, egalitarian choice as to how to formalise their relationships

Ireland’s hurried 'divorce' from civil partnership is somewhat lamentable, albeit constitutionally mandated post-marriage equality. 

Recently, there have been numerous calls to extend the definition of the family in Article 41 of the Constitution beyond married family units. 

The trend began earlier this year when members of the Citizens' Assembly voted overwhelmingly in favour of changing Article 41 so that the provision would finally "protect private and family life, with the protection afforded to the family not limited to the marital family".

It gained momentum in recent weeks when Labour Party leader Alan Kelly and TD Ivana Bacik echoed this recommendation and outlined some harrowing cases where the law clearly treated unmarried couples less favourably. 

Of course, Article 41 can only be changed by the people in a constitutional referendum. One can only speculate as to whether any recommendation to change the Constitution to protect the diversity of family forms in 21st century Ireland might be considered by or ultimately put to a referendum by the Government, or whether it would even be successful if it were. But it is encouraging to see strong support for the recognition of family types that extend beyond the current constitutional ideal coming from ordinary citizens and elected representatives alike.

In light of this, one wonders whether we should lament the phasing out of civil partnership following the marriage referendum. Civil partnership was a "marriage-like" institution that enabled same-sex couples to formalise their relationships between 2011 and 2016 at a time when marriage was unavailable to them. 

Protection of marriage

When marriage was opened up to same-sex couples in 2015, civil partnership simply had to go, because it would have been competing with marriage, which "the State pledges itself to guard with special care" and protect "against attack", according to the terms of Article 41. It might have been an unconstitutional "attack" on marriage to allow civil partnership to remain as an alternative, because those same-sex couples who objected to marriage could shun it completely by opting to become civil partners instead. 

Supporters for same-sex marriage raise a cheer at Dublin Castle as they wait for the result of the referendum in 2015. 

Thus, the fate of civil partnership was sealed in 2015 and, following a transition period, no new civil partnerships could be entered into by mid-2016 (although civil partnerships entered into in 2011-2016 are still recognised by the law).

However, since 2015, significant developments have taken place in Ireland and elsewhere which indicate that, although constitutionally required, the demise of civil partnership was an unfortunate consequence of marriage equality that has hindered greater familial diversity in Ireland by denying those couples opposed to marriage an alternative, egalitarian choice as to how to formalise their relationships.

In England and Wales, marriage was opened up to same-sex couples in 2014; civil partnership which, akin to Ireland, was available to same-sex couples, not only remained as an alternative to marriage for such couples there, but was ultimately extended to opposite-sex couples following a ruling by the UK Supreme Court that the government’s failure to do so was discriminatory treatment contrary to the European Convention on Human Rights.

Indeed, on December 31, 2019, there were 167 opposite-sex civil partnerships formed in England and Wales, and this was only the first day on which it was possible for opposite-sex couples to enter into civil partnerships (statistics for 2020-21 have yet to become available).

Same-sex civil partnerships

Further, following a large decrease between 2013 and 2015 after the introduction of same-sex marriage, the formation of same-sex civil partnerships has been increasing annually since 2016, with 994 such unions formed in 2019. 

Dr Andy Hayward, an associate professor in law at Durham University, notes that in the UK, where a civil partnership can be converted to a marriage, only one in eight same-sex civil partnerships have been converted into marriages to date and, while he acknowledges that the reasons couples are forgoing conversion are "multi-faceted", he believes that "some same-sex civil partners have decided not to convert their civil partnerships into marriages" because "they have chosen a particular family form".

Activist Rory O'Neill, known by his stage name as Panti Bliss in Dublin Castle for the referendum on same-sex marriage.

It is clear from these statistics that in our neighbouring jurisdiction, the number of same-sex and opposite-sex couples that favour civil partnership over marriage is indeed quite significant.

In Ireland, the popularity of civil partnerships among same-sex couples was illustrated by Census 2016, which recorded same-sex couples in civil partnerships for the first time in the history of the State, and shows that there were 4,226 persons in this category in 2016. That said, the 2016 Census is from the very early days of same-sex marriage and a proportion of these couples might since have entered into marriages and thus dissolved their civil partnerships. Indeed, merely seven same-sex civil partnerships were formed in 2016, following the extension of marriage to same-sex couples the previous year.

Shunning marriage

While the number of civil partnerships formed in 2016 was minute, this does not necessarily indicate a preference for marriage among same-sex couples because it must be remembered that, by then, for constitutional reasons, the option of notifying an intention to enter into a civil partnership had been foreclosed to such couples. Therefore, the potential demand for civil partnership in Ireland should not be underestimated; after all, the reasons couples may wish to choose civil partnership over marriage are varied and complex — some shun marriage because of its association with religion, others because of the patriarchal treatment of married women, and so forth.

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The evolution of civil partnership in England and Wales, as well as the notable, ongoing demand for civil partnerships there among both same-sex and opposite-sex couples, might lead one to agree with an observation by Dr Fergus Ryan, an associate professor in law at Maynooth University, that "the aspiration to form a union that is unequivocally egalitarian, as well as secular and anti-patriarchal in its origins, is surely deserving of respect". 

In 2015 our restrictive constitutional definition of "the family" meant that civil partnership, a modern, egalitarian alternative to marriage was denied the opportunity to co-exist, develop, and perhaps ultimately be extended to opposite-sex couples seeking access to the institution.

Subsequent, encouraging evidence demonstrates that Ireland’s hurried "divorce" from civil partnership is somewhat lamentable, albeit constitutionally mandated post-marriage equality.

However, should a change to Article 41 one day be approved by the people in a referendum, the detailed, well-drafted civil partnership legislation could possibly be resurrected or, alternatively, it could serve as the perfect blueprint for a new civil union law that would enable same-sex and opposite-sex couples to express their commitment to one another in a manner that is perhaps more century 21 than any updated marriage laws could ever be.

Dr Brian Tobin, lecturer in family law, National University of Ireland, Galway.