Clare Daly has drawn attention to what may amount to “capricious and unlawful decisions” by our courts, writes JOHN WATERS

TWELVE MONTHS ago, relatively unnoticed, a new dispensation was ushered in governing cohabiting couples, with the enactment, on January 1st, 2011, of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Many people assume this Act relates to same-sex couples only. Not so. Rather late in the discussion, perhaps (let’s be charitable) to avert anomalies, the last government introduced a section, extending the main civil partnership provisions to all cohabiting couples. This amounted, culturally speaking, to a nonsense, since the usual reason “straight” couples have for “living together” is that they wish to avoid legal entanglements until they decide if they want to be married.

Now, unless cohabitants undertake a deliberate, legally prescribed process of “opting-out”, this Act renders it impossible for them to remain mutually unencumbered while living together – or even afterwards. After a given time (two years if there are children, five otherwise) cohabiting partners acquire mutual legal liabilities which a court may translate into “ancillary reliefs” such as succession rights, partner-maintenance, and shared rights to assets and pensions. In effect this means that, on reaching the relevant time limit, those who have not “opted-out” (and sometimes those who think they have) will no longer be free agents with individual rights and personal independence, but in relationships legally indistinguishable – save in one notable respect – from marriage. (That’s right: the parental rights of cohabiting fathers are unchanged by the Act.) All such hearings will be heard in camera.

These aspects received minimal coverage during the debate on the legislation, the media being preoccupied by the homosexual-rights elements. The discussion was also hampered by the usual pious/mischievous voices insisting that the changes were necessary in the interests of children. Actually, the circumstances of children were unaffected by the legislation.

One issue that remains unclear is whether the new legislation applies retroactively to couples whose relationships existed prior to January 1st, 2011, or whether the legal “cohabitation clock” started ticking with the new law’s enactment.

Given that the new law radically changes the landscape of cohabitation, are cohabitants whose relationships predate the new legislation entitled to have their cases heard under the old rules?

It is not widely known that the previous dispensation provided for aspects of disputes between cohabiting couples not involving children to be held in open court. Readers may recall media reports of particular high-profile cases, in which disputes related to property and/or partner-maintenance only. This changed in the 2010 Act.

Indeed, allegations have occasionally surfaced that many disputes between cohabitants under the old legislation were illegally held in camera, which if true would amount to a wholesale abuse of the civil rights of citizens, and in this respect the 2010 Act may serve to mend the State’s hand.

Last week, Socialist Party TD Clare Daly issued a press statement seeking to draw attention to her failed attempt to put two Dáil questions to the Minister for Justice relating to custom and practice in family courts prior to the enactment of the 2010 Act.

She noted that disputes between cohabitants not implicating children were previously supposed to be heard in open court, going on to suggest that many such cases were wrongfully held in camera. She also sought to ask Minister for Justice Alan Shatter if he could “assure the Dáil” that, in his capacity as a family law solicitor, he had never “participated in in camera court proceedings in the family courts division that unlawfully dealt with a property or maintenance dispute”.

Whenever I attempt to apply words like “unlawful” to the actions or judgments of family lawyers or courts, I find myself stymied by “legal advice”. Whereas many open and transparent institutions in this Republic have been caught out in hideous corruption, it seems the institution operating in the most determined secrecy must be regarded as above reproach. It is, therefore, a relief to be able to cite an authoritative source for a contention that things are otherwise, and refer not to unidentifiable “sources” but an elected public representative.

Daly’s statement referred with scintillating clarity to “capricious and unlawful decisions by judges to hold family law cases dealing with property disputes between cohabiting couples on an in camera basis”. It continued: “There are possibly hundreds of these cases where the property settlements adjudicated on by the courts are illegal and unenforceable. There was no basis in law for judges to decide to hold such family law cases in camera prior to 2010. Judges in a number of instances have gotten away with the most outrageous behaviour in cases brought both to my, and my party colleagues’, attention. They do so knowing that successive governments have little desire to act on such matters, except where a sufficient national scandal forces them to take action.”

The Ceann Comhairle ruled Daly’s questions out of order, stating: “The Minister has no official responsibility to Dáil Éireann for these matters”.

The only place her statement was published was the Fingal Independent.

Am I shocked? Shattered, I’d say.