Que(e)rying’ the ‘Pink Euro’: Mapping Legal Barriers to Wealth Formation and Transmission in Emerging LGBT Families
Fergus Ryan, Head, Department of Law, Dublin Institute of Technology
This ‘virtual paper’ seeks to interrogate the formation and transmission of wealth within the emerging constituency of LGBT families in Ireland, with particular regard to the role of law in facilitating or fettering wealth formation and transmission within new family forms. The aim of this paper – published in the form of a blog – is to examine the possible impact of law and policy on wealth retention and transmission amongst LGBT family members. The purpose is to explore whether, and if so to what extent, the sexual orientation and family status of a person or of a person’s parents can influence the extent to which that person retains or is able to transmit wealth, particularly across generations of family members. An allied issue is how legal policy can (even when it favours recognition of LGBT families) assist in the transmission and reproduction of patterns of relative poverty in LGBT families.
Taking the form of an exploratory website/blog, this paper seeks to assess the possible impact of laws and policies on wealth formation and transmission as they affect couples both with and without children, as well as children living with same-sex couples. Mapping and linking relevant laws and policy documents, the website will consider, in particular, the impact of succession laws, social welfare laws, health, immigration and tax provisions on LGBT families.
This paper forms part of the Columbia College Chicago/DIT Virtual Syposium which takes place 22-23 April 2009. A key benefit of adopting a blog format (and of the virtual presentation of this symposium) is that it replaces the traditionally static format of the academic conference paper with a potentially dynamic format that allows for ongoing reflection, facilitating an iterative process that allows the author to develop the work in response to feedback, comments and experience of other participants.
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A reflexive and collaborative process
This paper focuses on Irish law, though comparative perspectives and experiences will also be examined. Given the virtual forum, the paper is interactive, in the sense that the author welcomes comments, feedback and criticism. The forum also affords the author and participants a unique opportunity to engage in reflexive practice, in other words, to reflect critically on one’s own behaviour and place in society, as well as to reflect upon and refine previously expressed views and perspectives. In this regard, the author acknowledges as a key element the collaborative nature of this process (and thus an element of collaborative authorship that is not typically a feature of the traditional academic paper).
[Donald Schön (1983) The Reflective Practitioner: how professionals think in action London: Temple Smith]
It is intended that this paper forms the start rather than the end of a process of inquiry, one that will be added to and refined over time. In other words, this is the starting block rather than the finishing line. I intend, in particular, to add material on an ongoing basis, gradually forging a mosaic depicting (I hope) the impact of sexual orientation and family status on the acquisition and transmission of wealth. In particular, the dynamic nature of this blog format allows the author to take account of the impact of forthcoming developments, notably of the proposed Civil Partnership Bill, the Scheme of which was published in June 2008.
In particular, I should stress that I am not attempting to ‘law down the law’ (pardon the pun) on this issue, but rather to prompt further discussion and exploration through an iterative and interactive process of discovery, reflection and refinement. I welcome diverse comment and perspectives.
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Some Terminology
‘Family’ – a contested term, the Irish Constitution takes the narrow and prescriptive view that a family comprises a married couple, with or without children. I have argued elsewhere that a more descriptive or functional approach should be adopted. My preferred definition dates back three decades but is still current today:
“two or more persons who share resources, share responsibility for decisions, share values and goals, and have commitment to one another over a period of time. The family is that climate that “one comes home to” and it is that network of sharing and commitment that most accurately describes the family, regardless of blood, legal ties and or marriage”.
Home Economics: New Directions II (American Home Economics Association, 1975)
‘LGBT’ – shorthand for ‘Lesbian, Gay, Bisexual, Transgendered’
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The ‘Pink’ Euro?
The immediate prompt for this exploration is in fact a stereotype – that people who are gay typically have more disposable income, and are effectively wealthier than those who are not. Academics arguably should ignore stereotypes in favour of hard facts. Intuitively, however, there may be some merit in this notion, commonly denoted in shorthand as the ‘pink pound’ though or ‘pink euro’. Typically, (though this is changing) gays and lesbians are less likely to have child-rearing responsibilities than heterosexuals. Given the additional financial responsibilities of rearing a child (which can span a duration of up to 23 years), it stands to reason that those who do not have children will statistically be more likely to have more disposable income. In addition to the cost-savings involved in not having children, gays and lesbians also possibly avoid the opportunity costs arising from rearing offspring. It is possible for instance that gays and lesbians have more time to put into building a career, are less likely to take time off for family reasons, and thus have more energy and time to devote to a career.
To this one might add a tentative hypothesis: members of minorities, by definition, both experience and perceive a sense of exclusion from mainstream social structures, though the extent of this exclusion differs depending on the context. This experience in the context of sexual orientation may be more complex, particularly given that most homosexuals are born into heterosexual families, and thus may enjoy access to mainstream support networks denied to members of other minorities and excluded groups. Nonetheless, the inevitable experience of ‘otherness’arguably leads to strategies of adaptation and resistance. These may include defensive strategies that seek to ensure that the minority member will be financially secure. Thus education and social advancement become more critical – the prospect of economic security compensating for the reduced social capital that gays and lesbians might otherwise enjoy.
The perception of the gay community as a wealthy community is closely related to the perception of the gays and lesbians as key drivers of innovation and creativity. The Irish economist David McWilliams, for instance, has suggested:
“…a high correlation between cities with a thriving gay scene and economic growth. The reason is straightforward. A preponderance of gay men in a city tells us something about the underlying economic and social structure of the place. According to evidence from the US, a gay scene usually goes hand in hand with a city being a hub of the ‘creative economy’”.
Thus he suggests:
“Ireland should be more attuned to its gaydar because what seems today to be effete and frivolous, will be the nuts and bolts of economic pergformance tomorrow” (Irish Independent, October 18, 2006)
Kieran Rose makes a similar claim in the Irish Times, June 17, 2007, noting that
“Places with a high concentration of gay people tend to have higher rates of innovation and economic growth.”
Drawing on the work of Richard Florida, Rose argues that openness to diversity coalesces with openness to the creativity and innovation that fuels economic progress. That is not to say that people who are gay and lesbian actually make a city prosperous but rather that a critical mass of LGBT people in a single place is both a product and sign of openness to innovation and creativity that in turn fuels economic innovation. Rose argues that mindsets that are limiting, risk-averse and conservative deter the kind of creativity that leads to economic success. By contrast, the open-mindedness that facilitates the emergence of a gay-friendly society in turn is open to the creativity and novelty that is the lifeblood of economic growth.
The broad impression we are offered is of a community that has transcended disadvantage to achieve a pinnacle of cultural, social and economic success. Increasingly gay and lesbian communities and social actors are using this perception to leverage mainstream investment. The website of Ireland’s main gay publication GCN (www.gcn.ie), for instance, invites advertisers to tap into “Ireland’s €8.75 billion gay market”. Its 2008 media pack draws heavily on a 2007 survey conducted by Out Now Consulting, to which there were 1,191 respondents. [By any standards, this is an impressive response rate – most major political pollsters in Ireland poll approx. 1,000 respondents.] The average GCN reader it notes earns €44,614 a year, compared with a national average of €32,000. 35% of readers, moreover, earned between €40,000 and €100,000 a year. Thus, it states “Gay men earn more than 15K above the national average income”. The survey results also claim significant spending among the gay population generally on dining out, travel and leisure, the pack estimating the annual “gay dining out bill”, for instance, at €646 million, the likely travel spend per annum at €737 million and the annual gay alcohol bill at a hangover-inducing €669 million a year. [This is calculated on the basis that 6% of adults (or 190,000 people in Ireland) are (the pack claims) gay. This in turn is based on a UK Treasury estimate]. The survey also stresses a certain cultural edge – readers of GCN are typically, the survey asserts, well-educated, fashionable and cultured.
http://www.gcn.ie/attachments/downloads/GCN_Media_Pack_October_2008_lo-res.pdf
The narrative of success is not unique (and indeed this very professional publication should not be faulted for wishing to put its best foot forward). It is, rather, symptomatic of a broader perception and claim to LGBT success in the face of some considerable adversity. While the narrative is understandably aimed at attracting advertisers (the publication is circulated free of charge so depends heavily on advertising), the broader message is possibly politically useful as well. Wealth – and the perception of wealth – is a powerful political and cultural tool in resisting societal opprobrium, suspicion and distaste that even today is still aimed at gays and lesbians. The narrative has arguably been deployed with effect politically and culturally as well as economically. Colloquially put, the message is clear – we have money, class and style - we are cultured, well-educated, monied and articulate – thus we are not to be messed with. In particular, the argument has been deployed to add weight to (what is already a commendable) argument for civil partnership and same-sex marriage, with many commentators suggesting that gay nuptials will have a positive effect on local economies where recognition is provided. Commentators, for instance, predict a $160 million boost to the Iowa economy from same-sex marriages in that state:
http://www.kcci.com/money/19174594/detail.html
On reflection, I must rather sheepishly admit that I have made a similar argument in “Sexual Orientation and the Management of a Diverse Workplace: Law and Best Practice” (2005/6) 5 Employment Law Review 86. There, I argue that the promotion of a diverse workplace is not only socially good, but also financially beneficial. Businesses that promote a diverse workplace are more likely to gain and retain employee and customer loyalty, and will be better able to adapt to market conditions in a creative manner.
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Cracks in the surface?
Two features of the survey, however, immediately suggest some circumspection. 71% of respondents were male [though GCN is, ostensibly at least, aimed at both males and females]; most were young:
“GCN’s core reader is male, between 25 and 34 years old and living in Dublin. He is confident, politically and socially conscious and open about his sexuality. He is both brand aware and brand loyal. He earns considerably more than the national average income, has no dependents and spends his money on leisure activities, travel and entertainment.” [emphasis added]
This suggests a more complex picture – in the generation of the ‘pink euro’, sexual orientation is arguably not the determining factor. The perception of the ‘pink euro’ ignores the impact of cross-cutting factors such as gender, age, disability, race and class on patterns of wealth and poverty. Gender is an obvious variable. If men, on average, earn more than women, (a well-established fact) then it is follows that there is more than likely a significant difference between the average gay male and the average gay female salary. This difference may be compounded by the single-sex composition of gay households. When variables such as education, disability and race are considered, the likelihood is that the monolithic view of a wealthy gay community espoused above is in fact representative only of a very particular segment of the gay community. Other factors and variable such as health and age arguably also have a bearing on wealth.
Indeed, a recently published study by the Williams Institute at the UCLA School of Law suggests that when one compares families of similar constitution, gay and lesbian families on average fare significantly worse in financial terms than similarly placed heterosexual families. Lesbian couples, in particular, were found on average to be much more suspectible to poverty than heterosexual couples in comparable situations. Similarly, African-American same-sex couples fared, on average, worse than similarly placed white same-sex couples while rural-based same-sex couples were likely to be poorer than urban-based couples. Notably, the poverty rates for children reared in households led by same-sex couples was estimated at twice the average rate for all households headed by heterosexual married couples. Social exclusion, and the compound effects of overlapping disadvantage (i.e. the combined effects of race, gender and sexual orientation) were noted as factors. Lack of legal recognition, the report suggests, also plays a crucial part.
[See Albelda, Badgett, Gates and Schneebaum, Poverty in the Lesbian, Gay and Bisexual Community (Williams Institute, 2009)]
http://www.law.ucla.edu/williamsinstitute/pdf/LGBPovertyReport.pdfhttp://echelonmagazine.com/index.php?id=762
The perception of gays and lesbians as a uniformly well-off social group was earlier challenged in Ireland by an influential study undertaken by Glen/Nexus for the Combat Poverty Agency, entitled Poverty, Lesbians and Gay Men: The economic and social effects of discrimination (1995). The report exposes the clear potential for sexual orientation discrimination to act as a barrier to wealth formation and transmission.
http://www.cpa.ie/publications/PovertyLesbiansAndGayMen_1995.pdf
The results of this study (admittedly now dated but notable nonetheless) reveal significant levels of economic strain amongst gay and lesbian respondents at that time. Notably, 21% of respondents reported living in poverty, while 57% indicated that they had experienced some financial difficulty in their lives. A remarkable one-third of respondents had, at some point in their lives, left home in circumstances where they were unsure where next they would live.
The study strongly suggests that social exclusion and discrimination can have a significant bearing on this experience. It also suggests that such exclusion led to certain defensive strategies adopted by gays and lesbians. A majority of respondents, for instance, were not ‘out’ at work. [Kenji Yoshino suggests that despite increasing gay visibility, even openly lesbian and gay people still adopt strategies of ‘covering’ with a view to downplaying aspects of their homosexuality]. Such defensive strategies, however, in some cases diminished the career prospects of respondents. 21% of Nexus/GLEN respondents had indicated that fear of discrimination had prompted them to avoid pursuing employment opportunities for which they felt qualified. 39% overall noted that they had avoided certain sectors or categories with a view to avoiding possible discrimination. 7% and 14% respectively of respondents reported having been sacked or having left a job due to their sexual orientation. Notably, some respondents reported having left education earlier than anticipated, due to negative treatment owing to their sexual orientation.
The National Economic and Social Forum (2003 at 3.15) has also noted “the high risk of poverty, social exclusion and cumulative disadvantage experienced by some LGB people.” [Emphasis added. The operative word here is ‘some’].
http://www.glen.ie/public/pdfs/NESF%20Report%2027.pdf
Recent studies suggest that the picture is even more acute for transgendered persons. A European-wide survey of transgendered persons by Whittle, Turner, Combs and Rhodes (Transgender EuroStudy: Legal Survey and Focus on the Transgender Experience of Health Care, (Brussels: ILGA-Europe, 2008)) suggests that while educational levels amongst trans people are much higher than for non-trans people, average income levels are paradoxically, significantly lower.
It is likely that with the intervening change in attitudes and the introduction employment equality legislation, the picture today for LGBT communities may be different. These various studies nonetheless underlines a link between social exclusion and relative economic deprivation.
While gays and lesbians arguably have fared better in the intervening period, the overarching message is that the myth of the pink euro requires further interrogation. The marginalisation and social exclusion experienced by many gays and lesbians can be a site of resistance that in turns leads to innovative and creative strategies of self-advancement. It is arguable, however, that the experience of social exclusion, particularly where a minority sexual orientation is compounded by other factors, may render gays and lesbian more financially vulnerable than the myth of the pink euro may suggest. Where social exclusion is particularly acute, or compounded by other factors, the likelihood of poverty is particularly high.
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Legal Context
There is, of course, a rather spectacular irony in writing about wealth transmission in the current economic context. The global credit crunch has undoubtedly stemmed the freeflow of capital worldwide, but most commentators will agree that the effect has been particularly acute in Ireland. Ireland’s economic fortunes have faltered rather dramatically in very recent months.
This dip in fortunes must, however, be set against a context of around fifteen years of unprecedented growth and economic prosperity never before experienced in the history of the State. The rapid rise in economic fortunes in Ireland during the 1990s and early 2000s paralled an unprecedented shift in social views and a corresponding transformation in family patterns. The past 20 years have witnessed a considerable explosion, in particular, in the diversity and fluidity of family forms. The results of the 2006 census are particularly indicative. [See generally Central Statistics Office, Census 2006: Vol.3, Table 34 (May 2007) (www.cso.ie)] Out of a total of 1,053,180 family units enumerated in the State at the time of the census, no less than 189,240, or just under 18%, were one parent families, headed by widowed, divorced, separated or never married persons. A further 121,763 family units consisting of (unmarried) cohabiting couples were enumerated, just over a third with children. At 11.56% of all families, this represents an increase of 63% over the 2002 figure, which itself was widely flagged as indicative of significant change. Since 1999, approximately one-third of children have been born outside of marriage, a remarkable trend in a country that up to 1987 treated such children as legally “illegitimate”.
Although the proportion of cohabitants of the same-sex is reasonably small relative to the overall numbers of unmarried couples, it is clear that there has been both an increase in the numbers and visibility of same-sex couples. Indeed, considering that until 1993, most forms of male homosexual sexual behaviour were still illegal (even between consenting adults) the change in fortunes of the Irish LGBT community are particularly striking. In 1998, employment equality laws were extended to ban discrimination on the basis of sexual orientation in most employments (public and private – with a controversial exception protecting the ethos of religious-run schools and hospitals). Similar measures in 2000 banned sexual orientation discrimination in relation to the supply of goods and services to consumers. Discrimination in the provision of health insurance is also prohibited. The Refugee Act 1996, notably, expressly permits a person to claim asylum in Ireland where they have been persecuted on grounds including sexual orientation.
Nonethless, as I have pointed out elsewhere, the very positive measures that have been introduced are notable in their tendency to individualise gay and lesbian subjects. Insofar as individual gays and lesbians are concerned, the law is very comprehensive. (Though in relation to transgendered people, Ireland fares poorly. Although employment discrimination against transgendered people is banned under EU law, we remain only one of three countries in the European continent not to recognise gender reassignment for legal purposes) However, at the point where LGBT people begin to form relationships, the law grinds to a halt. It is an abiding irony that while Irish law boasts some of the world’s most progressive laws in relation to the protection of homosexual and bisexual individuals, recognition of same-sex couples is minimal. It is fair to say, of course, that legal recognition of non-marital couples generally is minimal, though even in the very few situations where some recognition is afforded, typically same-sex couples are excluded.
By definition, sexual orientation implicates a level of interpersonality, in that it presupposes that people will form, seek to form, or be inclined to form intimate human relationships with members of one sex, or the other, or both. As such, this legal atomisation of gays and lesbians seems ironic, even bizarre. This is classically exemplified by legal provisions on refugee status – while the State will grant asylum where a person has been persecuted on grounds of sexual orientation, the Refugee Act guarantees family reunification only for the spouse and minor children – and not the non-marital partner – of the refugee. [Section 18, Refugee Act 1996]
[I discuss these points further in Ryan, F., “From Stonewall(s) to Picket Fences: The Mainstreaming of Same-Sex Couples in Contemporary Legal Discourses” in W. Binchy and O. Doyle, (eds.) Committed Relationships and the Law, (Dublin: Four Courts Press, 2007)]
Be that as it may, it is largely the case that in Irish law, two persons of the same sex living together are treated generally as strangers, the legal rights and responsibilities thereof being more or less equivalent to those of flatmates. To this there are some notable exceptions. A gay couple for instance, are afforded some limited remedies under the Domestic Violence Act 1996 (though not, notably, a barring order, which only a heterosexual partner may seek). There is also some recognition for the purposes of obtaining force majeure leave where a partner is ill or hospitalised (Parental Leave (Amendment) Act 1996. Otherwise, however, in common with all unmarried persons, lesbian and gay couples enjoy few legal rights or responsibilities inter se, which is very much in keeping with the privileged constitutional and legal position of marriage in Ireland. Yet even where rights and obligations have been extended to non-marital partners, more often than not such rights have been confined to heterosexual couples (which is particularly invidious given that heterosexual couples already have the choice to marry). As recently as 2004, the Oireachtas passed two pieces of legislation that expressly reserved certain social welfare entitlements and the right to succeed to a residential tenancy to married persons and unmarried couples of the opposite sex. Remarkably, a 1996 provision extended the right to sue for wrongful death to unmarried couples, but only those of the opposite-sex. Is the life of a gay partner worth less than that of a straight partner?
[While the European Convention on Human Rights permits favourable treatment for married couples, it does not permit discrimination between unmarried couples based on sexual orientation. Judy Walsh and I, in Walsh and Ryan, The Rights of De Facto Couples, (Dublin: Irish Human Rights Commission, 2006) point out that measures which afford rights to opposite-sex unmarried couples but not same-sex couples are contrary to the Convention.]
Some of the key rights and responsibilities in contention are relational rather than financial – for instance hospital visitation rights, rights on the death of a partner, rights and responsibilities relating to children. A significant number of the rights and responsibilities implicated are, nonetheless, financial in nature. The absence of legal recognition thus may have a significant impact on the financial wellbeing of a couple. Succession laws for instance, may act (in the case where a party dies without a will) to ringfence inherited wealth within the traditional family. Tax provisions also privilege the traditional marital family at the expense of gay and lesbian couples, though (paradoxically) non-recognition of the LGBT family has served to exclude same-sex couples from the cohabitation rule in social welfare law.
A more detailed description of the legal position of same-sex couples in Ireland is set out in Walsh and Ryan, The Rights of De Facto Couples, (Dublin: Irish Human Rights Commission, 2006). Below, I have attempted to map out, reasonably briefly, the key economic consequences of non-recognition in a number of contexts (these are the most significant, others may also present). It is important to note that in June 2008, the Government proposed the introduction of a Civil Partnership Bill that will, if enacted, ameliorate the position of same-sex couples, though as things stand at the moment, the Bill has yet to be put before Parliament:
Taxation: In Ireland, married couples enjoy certain tax exemptions. A person who transfers property to his or her spouse, for instance, is not normally subject to Capital Gains Tax. Likewise, transfers of an interest in the family home between spouses are exempt from Stamp Duty. Property that is gifted or passes on death (either by will or on intestacy) to a spouse of the donor is not subject to Capital Acquisitions Tax. Married couples, moreover, can share tax credits and reliefs, such that a married couple may pay less tax than a similarly positioned unmarried couple. While tax individualisation has decreased the reliefs available to a single income couple where only one spouse is earning an out-of-home income, a married couple where both spouses work can avail of a number of reliefs.
These various reliefs are not available to unmarried couples. A particular difficulty arises where an unmarried partner dies leaving property to his or her surviving partner. The property is subject to Capital Acquisition Tax in the hands of the survivor. While the law exempts some donated income from tax, the thresholds for these exemptions are lower in the case of a non-marital partner than in the case of a child or other close relative of the donor (and as noted above, no tax is payable if the recipient is a spouse of the donor.) The Finance Act 2000 introduced a limited albeit welcome relief where the inherited property is the principal private residence of the recipient in which the recipient has lived for at least three prior years. [Section 59C Taxes Consolidation Act 1997, as inserted by section 151 Finance Act 2000]. Importantly, however, to avail of this relief the recipient cannot have a beneficial interest in any other home. In other words, this relief applies only where the recipient has no other property available to him (and may thus be lost, for instance, if the recipient has rental property or even perhaps a holiday home).
See http://www.revenue.ie/en/tax/cat/leaflets/cat10.pdf
The Government has proposed that if civil partnership is enacted, civil partners will be entitled to the same tax treatment as married couples. In the current economic context, however, it is not certain that such a move would be politically feasible, and hence whether it will be followed through. The political difficulty may be compounded by what I might call the ‘discourse of the heterosexual taxpayer’. This is a commonly deployed response to calls for equal rights for gay and lesbian couples. It is exemplified by a recent report in the Irish Independent regarding civil partnership proposals - Sheahan, “New civil unions will cost taxpayers over €25m”, Irish Independent, July 14, 2008. The report suggests that taxpayers will have to pay out to finance the consequences of civil partnership. The implication – and arguably the underlying assumption – is that heterosexual taxpayers will have to pay for homosexual unions. Gays and lesbians, of course, also pay taxes – indeed (as indicated above) possibly more tax than heterosexuals. The proposal simply seeks equality between spouses and civil partners, though the heteronormative discourse employed in this context suggests that the ordinary – and hence heterosexual – taxpayer will have to foot the bill for civil unions.
In fact a number of factors suggest that the cost would in fact be minimal. First, the numbers involved are low. With respect, the Independent report appeared to confuse civil partnership (which is intended to apply only to gay couples) with wider recognition for all cohabitants. Additionally, in relation to income tax, favourable tax treatment would only be relevant where there is a disparity in income, for instance, where one party is not working. This is probably less of an issue with a couple of the same sex who are less likely to have children and possibly less likely to be earning different incomes. In relation to CAT, the reduction in the tax take would be minimal, as cohabiting couples already receive the principal private residence relief.
Ironically, in fact, recognition of same-sex couples may result in savings on the social welfare side. Such recognition will result in the non-claimant partner’s income being taken into account in relation to unemployment assistance and other allowances. Equal treatment will also remove the anomaly whereby cohabiting same-sex partners can still receive a one-parent family payment, as the cohabitation rule currently only applies to opposite-sex couples. Indeed, as Ruth Colker has noted, the benefits of marital status diminish the less well off you are. The somewhat uncomfortable truth then is that savings may be made by better-off civil partners at the expense of the less well off.
Succession: A gay couple wishing to secure succession rights for each other in the case of one partner’s death, must make wills. While intestacy rules (which apply when a person does not make a will) provide for cases where a spouse does not make a will, they do not recognise non-marital partners. Thus, if a partner dies without making a will, the surviving partner will be entitled to no part of the deceased’s estate. A surviving spouse, by contrast, is entitled to two-thirds of the deceased’s estate, all of it if there are no children.
An added complication arises. When a spouse makes a will, she is legally subject to an ‘override’ in a case where she attempts to disinherit a spouse. Unless the parties are separated (and have agreed to waive their inheritance rights) or divorced, the surviving spouse is legally entitled to a half of the estate if the couple have no children, one-third if they do. This legal right to prevent disinheritance does not apply to unmarried couples, meaning that a partner can be left out of a will.
Under civil partnership proposals, it is proposed civil partners will be treated the same as spouses.
Maintenance: A non-marital partner cannot legally seek maintenance or financial support from a partner. While the parties may make voluntary arrangements, it is probable that any contract for maintenance of a non-marital partner would not be enforceable (see Ennis v. Butterly (1996)). This clearly has advantages and disadvantages for the couple. On the one hand, the potential maintenance debtor is freed of any liability for financial support. On the other hand the partner who requires support is effectively denied it. This has implications not only for the financial wellbeing of the partner, but for the state coffers too. The absence of a facility for maintenance means that the State may be called upon to support the unmaintained partner. It cannot utilise the ‘liable relative’ scheme to pursue the wealthier partner for maintenance as the latter is not obliged to pay maintenance.
Under civil partnership proposals, it is proposed civil partners will be treated the same as spouses. Such reform will means that the wealthier partner may be forced to support a partner in need. This added obligation will be important for economically dependent partners, but may also result in social welfare savings for the State.
Property: The Family Home Protection Act 1976 prevents a person selling, leasing or mortgaging all or part of the family home of a married couple without the prior written consent of the other spouse. The Act also allows a court to act to prevent a spouse behaving in such a way as to deprive the other spouse of the benefit of living in the home, or to make it uninhabitable. These measures do not apply to same sex couples. [Though a gay person may be required to make a family home declaration stating that they are single when selling a property, even if the person has been married abroad].
Likewise, the powers conferred on a court to transfer property interests between spouses on judicial separation and divorce, so as to provide proper provision for both spouses and any dependent children, do not apply to a separating same-sex couple. As recently as 2004, measures aimed at conferring rights on residential tenants confined the right to succeed to a residential tenancy to a category which included spouses and opposite-sex cohabitants, but excluded same-sex partners of the deceased tenant.
Under civil partnership proposals, it is proposed civil partners will be treated the same as spouses.
Pensions: I do not purport to be an expert on this topic. Pensions seriously hurt my brain (not to mention many people’s pockets). However the nub of the situation is that same-sex couples will typically experience greater difficulty accessing the pension of a partner than is the case with spouses. While some private pensions may make provision for the partners of a pension holders, this will depend on the particular scheme. An exemption in the Pensions Act 1990-2005 allows occupational pension schemes to confine benefits to the spouses of pension contributors. (The EU Framework Directive (Council Directive 2000/78/EC) also suggests that benefits confined to married couples do not infringe EU law).
The public sector pension currently in place in Ireland (otherwise considered very generous, it being a defined benefit pension) does not provide for a partner in the case of a pensioner’s death. Thus if a pensioner dies, while provision will normally be made for a surviving spouse, it will not be made for a surviving partner. Where a public servant dies prior to scheduled retirement, a death-in-service gratuity is paid to the estate of the deceased. Thus, if the deceased has made a will in favour of the partner, the partner may benefit from this (although Capital Acquisitions Tax may be payable). However, the death-in-service pension which is normally payable to spouses and children will not be available to a partner, even though the contributions payable by public servants remain the same regardless of whether the public servant is or is not married.
http://www.cspensions.gov.ie/OverviewofPublicServicePensionSchemes.pdf
Under civil partnership proposals, it is proposed civil partners will be treated the same as spouses.
Social Welfare: This is one of the few areas where cohabitation is recognised, though only where the couple is of the opposite sex and not of the same sex. The availability of, and amount conferred under certain social security benefits and allowances will depend on whether the recipient is married, cohabiting or single. Where benefits and allowances are means-tested, the means of both the recipient as well as those of his or her spouse will be reckonable. The same principle applies where the recipient is living with another person ‘as man and wife’, a formula known as the cohabitation rule. This formula presupposes that the parties are unmarried, but rather quaintly, that they are living together as if they were.
The gendered language of the rule, however, means that it is confined to opposite-sex couples and does not extend to same-sex couples. This means (in theory at least) that a man who lives with a wealthy woman will be means-tested based on her income as well as his; if, by contrast, he lives with a wealthy man, his income alone will be considered, and not that of the partner. The situation is starker in the case of the One-Parent Family Payment, available to persons parenting alone. The cohabitation rule means that the recipient will not qualify if he or she is living with a person of the opposite sex. Nonetheless, if the recipient is cohabiting with a person of the same sex, the former will nonetheless qualify as the law does not recognise the relationship.
This brings to the fore Professor Ruth Colker’s assertion that legal recognition of LGBT families can impact quite differently depending on existing patterns of wealth: that while wealthy couples and families can gain financially as a result of legal recognition, poorer families may in fact often lose out, an uncomfortable side-effect of the mainstreaming of the LGBT family. [Colker, “Marriage”, 3 Yale Law Jo. of Law and Feminism (1991) 321 at p. 326.]
As such, legal recognition can prove to be a double-edged sword. Maintenance and property rights, for instance, are of little benefit to a couple who own no property and who have no income other than social welfare. Succession rights and taxation exemptions are also likely to be of little use to a lower-income family. Where social welfare payments are the main source of income, however, legal recognition of a relationship, and in particular the income of a partner, can in fact diminish the amount of social assistance available.
That said, there are a number of social welfare provisions that do favour married couples over unmarried. An obvious example is the Widow/Widower’s pension, both the contributory and non-contributory versions of which are available only to surviving spouses. As with pensions, this is again despite the fact that Social Insurance contributions do not differ based on sexual orientation or marital status.
Under civil partnership proposals, it is proposed civil partners will be treated the same as spouses.
Immigration: One particular area in which non-recognition may impact financially relates to immigration. While there is some evidence of a growing informal practice of recognising same-sex couples for the purposes of immigration, the differential treatment of spouses when compared with non-marital partners may impact negatively in financial terms. Delays in recognition may leave non-EU partners of Irish citizens in a legal limbo where they either cannot work in Ireland, can only work in designated areas of employment, or face greater barriers seeking employment. For partners one or whom is an Irish national and the other a non-EU national, this can potentially lead to greater financial insecurity.
Under civil partnership proposals, it is proposed civil partners will be treated the same as spouses.
Children and Same-sex couples: The legal non-recognition of same-sex couples comes into sharp relief when the families with children are considered. The growing popularity of non-traditional parenting arrangements profoundly challenges the popular view of lesbians and gay men as as the classic ‘double-income-no-kids’ family with greater than average disposable income. With additional responsibilities come additional financial burdens, which may be compounded by discrimination and non-recognition.
In particular, where a same-sex couple co-parent a child, only the biological mother or biological father is legally recognised. This means, for instance, that the non-biological parent cannot legally be required to maintain (financially support) the child. If the non-biological parent dies without making a will, neither the surviving partner nor child will succeed to the deceased’s estate. In a case where a will is made, but disinherits the partner and child, neither the biological mother nor child could make a claim against the estate. Notably, if the deceased partner (not being the biological parent) does make provision for the partner and child, Capital Acquisitions Tax will be payable with the only relief being an exemption that presupposes the parties are unrelated. Similarly, the non-biological parent may not be able to access very tax reliefs and other social benefits which are extended to parents.
Notably, civil partnership proposals as currently formulated will not change the law as it relates to partners with children. In fact an abiding trait of the proposed civil partnership law is its ring-fencing of adult relationships, to the exclusion of children. The Bill makes next to no attempt to legislate for same-sex couples with children. In fact the only context in which it suggests any recognition is with regard to conflicts of interest. The Bill refuses to confer any proprietary or maintenance rights on the child, but it appears it will recognise the relationship between the child and its non-biological parent in the ethical context. This will require a non-biological parent to disclose his or her relationship (which is not otherwise legally recognised) with the child or his or her partner. The child in other words will not be recognised as legally related to the non-biological parent, but will be regarded as having a conflict of interest in financial dealings with the latter.
In particular, where it is proposed to dissolve a civil partnership, the courts are under no obligation to consider whether proper provision has been made for children of either party (as is the case with heterosexual divorce). Although the judge is required to have regard to any children of either party, it is not possible to make any order in favour of those children. Nor is the dissolution predicated on ensuring that the children are and will be properly provided for (as is the case with heterosexual divorce, where there is a constitutional requirement that all children receive proper provision).
Given that the William Institute study shows that US children in LGB families are twice as likely to live in poverty as those reared in heterosexual-led families, these gaps are all the more acute and glaring.
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Conclusion
Ultimately, then, the monolithic image of the ‘pink euro’ dissipates on closer examination. While there is undoubtedly a constituency of relatively wealthy LGBT persons, studies demonstrate that when variables such as age, class, education and most notably, gender, race and transgendered status are considered this image fragments significantly. When the presence of children is added as a variable, the chances of poverty increase considerably. While experience of social exclusion and discrimination clearly play a role in this regard, I argue that legal and social policy may also serve to compound the financial insecurity of LGBT people. It does so by placing barriers to the transmission of wealth between same-sex couples, as well as between gay parents and the (non-biological) children who are part of their families. Legal recognition may ameliorate this position, by providing greater security and eliminating many of the barriers to wealth transmission, and in turn by diminishing the effects of social exclusion. Greater solidarity within LGBT communities – and the various constituencies involved – may also play a vital part.
(c) Fergus Ryan, 2009 - Please feel free to quote, but please acknowledge the author.
