Succession rights ‘not affected by a Yes vote’
Government hits back as No campaigners warn of potential legal quagmires
SUCCESSION rights within a family will not be impacted by changing the Constitution to recognise ‘durable’ relationships, Government sources have insisted.
Fianna Fáil director for the upcoming referendums Thomas Byrne was involved in a heated exchange on the issue on RTÉ’s Upfront with Katie Hannon.
Two referendums will be held on March 8 – International Women’s Day – proposing changes that would extend the meaning of family beyond one defined by marriage and include those based on ‘durable’ relationships.
The second proposes deleting reference to a woman’s roles and duties in the home, and replacing it with a new article that acknowledges family carers. On Monday night, Mr Byrne outlined that in a scenario whereby a person was legally married, but the marriage has broken down and there was no divorce, and was in a new ‘durable’ relationship, the property rights would be maintained by the person in the marriage.
Mr Byrne said that ‘there’s a lot of people out there’ who have been separated from their husband or wife but who have not opted for divorce.
The junior minister insisted that ‘it was clearly not the case’ that the new partner who was not part of the old marriage would have any entitlements to property if their partner died without having gotten a divorce or changing their will.
Former attorney general and current senator Michael McDowell, who is one of the leading figures on the No side of the campaign, said Mr Byrne’s comments raised ‘exactly’ the kind of problems that may arise as a result of the Government’s proposed changes to the referendum.
He said: ‘How would the courts deal with an impoverished woman who was party to a durable relationship that happened after the husband in a failed marriage, which was not dissolved by divorce, died and he had previously made a will leaving everything to his original wife who was in any event a very wealthy woman?’
‘Wills are revoked by marriage but not by starting a durable relationship. Would the durable relationship be recognised as constituting a family and help give the impoverished woman a right to challenge the effect of the man’s will? There is a hard case.’
He added: ‘Who knows how it would be resolved in a court dispute between the two women? Who knows how long the durable relationship would need to have lasted to give the impoverished woman any basis for a claim?’
Government sources last night told this newspaper that ‘there is absolutely no change to succession rights arising from the referendum’. Aontu leader and TD for Meath West Peadar Toibin told the RTÉ programme that Mr Byrne’s remarks were ‘incredible’. ‘This is a startling revelation. Here we have the Fianna Fáil director of their referendum campaign admitting that a person can be in two constitutionally marriage equivalent relationships with two different people at the same time. This has enormous legal and economic
‘Who knows how it would be resolved?’
consequences for the partners and spouses of these relationships and for their children.’
‘Marriage revokes a will. Will a durable relationship revoke a will? If it does, when will a will be revoked? After 3 months, 9 months etc of that relationship? Which spouse and which children are entitled to the family home or farm when one parent is in a constitutionally recognised relationship with two separate people?’
‘Will one of these families or both experience tax changes to their income? How will we know when we have new rights? Do people have to go to court? Do only people who can afford to go all the way to the Supreme Court have their rights upheld?’
He added: ‘The Constitution is the fundamental legal document of Ireland. It contains the core rights of citizens and defines the responsibilities of the state.’