The High Court has cleared the way for a lesbian couple to bring a legal action to have their Canadian marriage recognised in Ireland and to have the Revenue Commissioners treat them under the Tax Acts in the same way as a married couple.
The institution of marriage would be "at the core" of the debate in the case brought by Ms Katherine Zappone and Ms Ann Louise Gilligan, Mr Justice McKechnie said yesterday. The case was not just about tax bands and extent of allowances, and the matters for consideration far transcended the individual applicants.
The judge described the case as "of profound importance for same-sex couples and society as a whole".
If the couple won, "a stream of consequences, legal, cultural, ethical and religious" would follow, he said. The action raised far-reaching issues touching on virtually all of society, and a number of dearly held values and long-cherished practices and traditions would be up for consideration.
In their forthcoming action, Ms Zappone and Ms Gilligan will claim the refusal of the Revenue to recognise them as a married couple in Irish law for tax purposes breaches their rights under the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
They claim discrimination on the grounds of gender and/or sexual orientation and breaches of their rights to marry and to respect for their private and family life.
In a reserved judgment yesterday, Mr Justice McKechnie granted leave to the couple to bring their proceedings against the Revenue Commissioners, Ireland and the Attorney General.
He also directed that the Human Rights Commission, of which Ms Zappone is a member, be made a notice party to the action and that a plenary summons and statement of claim be served by the couple on the respondents within four weeks.
Given the extent of the issues raised, the full hearing is unlikely to start for several months.
Mr Justice McKechnie said he had no doubt, having considered the documents in the case and the legal authorities, that Ms Zappone and Ms Gilligan has demonstrated an arguable case which entitled them, as a matter of law, to be permitted take their proceedings.
To secure leave, he explained, the couple had to meet the legal threshold of establishing an arguable case.
He stressed that the granting of leave offered no comment on the ultimate outcome of the action and was no indication whatever of what that outcome might be.
He told Mr Gerard Hogan SC, with Ms Ivana Bacik, for the couple, that he would grant leave on all the grounds advanced.
He also directed that the matter proceed by plenary summons. Mr Hogan said that, when all the pleadings in the case were closed, he would apply for a date for hearing.
On Monday Mr Hogan had opened the application and outlined the grounds advanced. The judge said he wished to consider the matter overnight and gave his ruling yesterday.
Among the orders sought by Ms Zappone and Ms Gilligan are orders compelling the State and Revenue to recognise their Canadian marriage and to treat them as a married couple for the purposes of the tax laws.
They are also seeking damages.
The case arose after Ms Zappone, a public policy research consultant, and Ms Gilligan, an academic, married in Vancouver, British Columbia, Canada, on September 13th last year. They have been living together for 23 years and are joint owners of a home at Glenaraneen, Brittas, Co Dublin, and a holiday home at Kimego West, Cahirciveen, Co Kerry.
When they applied to the General Register Office for confirmation that their marriage was legally binding in Ireland, they were told that was not a matter within the remit of that office.
While there is no legal mechanism for having a foreign marriage registered in Ireland, the couple say a foreign marriage certificate, accompanied by a translation from a reputable translation agency if necessary, is acceptable by the State for most legal and administrative purposes.
The couple wrote to the Revenue on April 26th last informing them of their marriage and enclosing a copy of their marriage certificate, plus an affidavit from a Canadian lawyer confirming their marriage was legally recognised under Canadian law.
They sought the same allowances as a married couple under the Taxes Consolidation Acts, but the Revenue refused their claim last July 1st on the basis that the provisions relating to married couples relate only to "a husband" and "a wife".
The couple claim the Tax Acts do not define the terms "husband and wife", but the Revenue had told them that the Oxford English Dictionary defined "husband" as a married man and "wife" as a married woman and justified its refusal on that basis.
