Forthcoming Finance & Social Welfare Bills

detective

With the new Civil Partnership and... Cohabitants Act 2010 being passed into law there is much being said about the forthcoming Finance and Social Welfare Bills bringing Civil Partners into the same spectrum as Spouses when it comes to issues of taxation and social welfare.

Has anybody heard if heterosexual cohabitants will be joining them? Or will they still be the victims of Government hypocrisy - Cohabitants being recognised by the Minister for Social Protection but not by the Minister for Finance!!!

Tom Young

That rings a bell. I will check and revert re. hetero cohabitants. I think it does apply.

detective

Tom Young wrote: »

That rings a bell. I will check and revert re. hetero cohabitants. I think it does apply.

Here's hoping!!

MagicSean

I wrote to 5 politicians asking a similar question. I got 2 replies. One from dept of finance and one from my local TD. Both were exactly the same. Here is the main body.

The position is that there are no special income tax reliefs for unmarried couples living together. In this context, tax law follows the general law relating to marriage. The basis for the current taxation of married couples derives from the Supreme Court decision in Murphy v the Attorney General (1980) which held that it was contrary to the Constitution for a married couple to pay more tax than two single people living together. In the case of cohabiting couples each partner is taxed as a single person and each is entitled to the tax credits and standard rate band appropriate to single persons. There are no special tax arrangements for cohabiting couples with dependent children.



I should point out that the Working Group Examining the Treatment of Married, Cohabiting and One-Parent Families under the Tax and Social Welfare Codes, which reported in August 1999, was sympathetic, in principle, to changes in the tax legislation to address the issues raised relating to cohabiting couples and reported that the options that it set out should be considered further. However, it acknowledged in relation to the tax treatment of cohabiting couples that a key issue is whether tax law should proceed ahead of changes in the general law.



In addition, over the last three years or so, a number of reports have been finalised which will help to inform deliberations in this area. These include the Tenth Progress Report of the Oireachtas All-Party Committee on the Constitution entitled ‘The Family’, the Report of the Working Group on Domestic Partnership, and the Report of the Law Reform Commission on the rights and duties of cohabitants.



To the extent that there are differences in the tax treatment of the different categories of couples, such differences arise from the objective of dealing with different types of circumstances while at the same time respecting the constitutional requirements to protect the institution of marriage. Any change in the tax treatment of cohabiting couples would need to be addressed in the broader context of future social and legal policy development in relation to such couples.

detective

k_mac wrote: »

To the extent that there are differences in the tax treatment of the different categories of couples, such differences arise from the objective of dealing with different types of circumstances while at the same time respecting the constitutional requirements to protect the institution of marriage.[/I]

That's not really good enough. If homosexual couples can be treated as spouses are by the Dept. of Finance then this flies in the face of the responses you got, i.e. its not respecting the institution of marriage. That is if the sole reason for not giving heterosexual cohabitants equal status is that they aren't married. Surely its unconstitutional to treat someone (heterosexuals) less favourably purely because of their sexual orientation and/or marital status.

MagicSean

I also argued that the current stance was a breach of the constitution in that it did not protect the family unit. It puts a financial burden on an unmarried couple with a child.

detective

k_mac wrote: »

I also argued that the current stance was a breach of the constitution in that it did not protect the family unit. It puts a financial burden on an unmarried couple with a child.

Maybe when the children's referendum comes through it will force the governments hand, in that they can't treat any two children differently based on their parent's marital status? Or maybe some filthy rich cohabitant with 2.4 children will take the matter against the government all the way to the supreme court and set a precedent for us all!!

detective

Any updates or soundings on this issue anybody?

MagicSean

detective wrote: »

Any updates or soundings on this issue anybody?

The childrens referendum has been delayed indefinitely. Don't know about the law in relation to co-habiting couples.

Sleepy

Is there a strong case in this?

Having just posted about it from a social and economic equity POV on the Irish Economy forum, I was wondering how one would go about challenging this legally and the likelihood of success?

MagicSean

Sleepy wrote: »

Is there a strong case in this?

Having just posted about it from a social and economic equity POV on the Irish Economy forum, I was wondering how one would go about challenging this legally and the likelihood of success?

Yes i think there would be grounds to challenge it. The government position is that they are protecting the institute of marraige. However if an unmarried cohabiting couple with children decided to take a case I think they would have a good chance. They could argue that the government are favouring the inststute of marraige over the rights of the child, the freedom of religion and over the family unit because an unmarried couple will be put at a severe financial disadvantage and so will their child unless they submit to what is essentially a religious ceremony. My understanding of the Murphy case they love to quote is that the courts decided married couples should not be put at a disadvantage to unmarried couples. I don't think the decision prevents them being put on equal financial grounds.

Sleepy

Am I right in my assumption that a couple couldn't challenge this with Legal Aid? If so, would FLAC be inclined to take the case or is there any legal group around who would assist in such a challenge?

Victor

Note that "a family" is a married couple, with or without children and not one or more adults with one or more children (a description I would much prefer).

Sleepy

Victor wrote: »

Note that "a family" is a married couple, with or without children and not one or more adults with one or more children (a description I would much prefer).

Where is that defined in law Victor?

Victor

Sleepy wrote: »

Where is that defined in law Victor?

I'm not sure if it is.

1. The Supreme Court has defined the family as the traditional one based on marriage.
2. The Supreme Court has said the state can't interfere with how many children a couple has.

Boom Boom

Now the finance bill has been passed is there any change as to how co-habitants are treated??

234

Yes i think there would be grounds to challenge it. The government position is that they are protecting the institute of marraige. However if an unmarried cohabiting couple with children decided to take a case I think they would have a good chance. They could argue that the government are favouring the inststute of marraige over the rights of the child, the freedom of religion and over the family unit because an unmarried couple will be put at a severe financial disadvantage and so will their child unless they submit to what is essentially a religious ceremony. My understanding of the Murphy case they love to quote is that the courts decided married couples should not be put at a disadvantage to unmarried couples. I don't think the decision prevents them being put on equal financial grounds.

Note that "a family" is a married couple, with or without children and not one or more adults with one or more children (a description I would much prefer).

Where is that defined in law Victor?

In McD v L the Supreme Court held that there was no such thing as a de facto family in Irish law. The only family that the constitution recognised was one based on marriage. So for the purposes os the constitution an nunmarried "family" has few rights. In Murphy v Attorney General it was held that it was unconstitutional to treat unmarried couples more favourably than married couples as this would amount to an attack on the institution of marraige. In State (Nicolau) v An Bord Uchtala Walsh J said obiter that it would be unconstitutional to put any equivilent institution on the same level as marriage.
Taking all this into account it would seems unlikely that the Supreme Court would accept any argument that it is unconstitutional to treat married couples more favourably. The idea of using the argument that they are not respecting the rights of the child would probably fail becasue they are mostly included in family rights which only benefit the family based on marriage. An equality argument would probably not succeed considering the weak protection the Supreme Court has given to the equality guarantee. On the issue of marriage being a religous ceremony the court will only be interested in if they are married in a civil sense; the fact that the couple had a religious wedding or not would be irrelevant.
The court might not reject any legislation that puts civil partners or unmarried couples on equal grounds with married couples but it all depends how much weight they give to the dicta of Walsh J in Nicolau.