Katherine Zappone and Ann Louise Gilligan v Revenue Commissioners, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 14 December 2006
• Neutral Citation: [2006] IEHC 404
• Court: High Court
• Docket Number: [2004 No. 19616 P],[19016P/2004]
• Date: 14 December 2006

[2006] IEHC 404

THE HIGH COURT

[19016P/2004]

ZAPPONE & GILLIGAN v REVENUE COMMISSIONERS & ORS

BETWEEN

KATHERINE ZAPPONE AND ANN LOUISE GILLIGAN

PLAINTIFFS

AND

REVENUE COMMISSIONERS, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

FAMILY LAW ACT 1995 S29

TAXES CONSOLIDATION ACT 1997 S461

TAXES CONSOLIDATION ACT 1997 S1017

TAXES CONSOLIDATION ACT 1997 S1019

OXFORD ENGLISH DICTIONARY "HUSBAND"

OXFORD ENGLISH DICTIONARY "WIFE"

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41.1

CONSTITUTION ART 41.3.1

CONSTITUTION ART 43

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 12

EMPLOYMENT EQUALITY ACT 1998

EQUAL STATUS ACT 2000

GELDER OXFORD TEXTBOOK OF PSYCHIATRY 2003

GREEN SEXUAL IDENTITY OF THIRTY SEVEN CHILDREN RAISED BY HOMOSEXUAL OR TRANSEXUAL PARENTS 1978 AMERICAN JOURNAL OF PSYCHIATRY 135 692-697

GREEN & ORS LESBIAN MOTHERS & THEIR CHILDREN: A COMPARISON WITH SOLO PARENT HETEROSEXUAL MOTHERS & THEIR CHILDREN 1986 ARCHIVES OF SEXUAL BEHAVIOR VOL 15 2 167-184

ANDERSSEN & ORS OUTCOMES FOR CHILDREN WITH LESBIAN OR GAY PARENTS. A REVIEW OF STUDIES FROM 1978 TO 2000 2002 VOL43 4

PERRIN CO-PARENT OR SECOND PARENT ADOPTION BY SAME SEX PARENTS 2002 PEDIATRICS VOL109 2 341-344

STACEY & ORS DOES THE SEXUAL ORIENTATION OF PARENTS MATTER? 2001 AMERICAN SOCIOLOGICAL REVIEW VOL66 2

CIVIL REGISTRATION ACT 2004 S2(2)(e)

KING & ORS MENTAL HEALTH & QUALITY OF LIFE OF GAYS & LESBIANS IN ENGLAND & WALES BRITISH JOURNAL OF PSYCHIATRY 2003 183 552-558

RATES & PREDICTORS OF MENTAL ILLNESS IN GAY MEN LESBIANS AND BISEXUAL MEN AND WOMEN 2004 BRITISH JOURNAL OF PSYCHIATRY 185 479-485

WAITE & GALLAGHER THE CASE FOR MARRIAGE 1ED 2000

FAMILY LAW ACT 1995

DILLANE v AG 1980 ILRM 167

HYDE v HYDE & WOODMANSEE 1866 LR 1 P& D 130

MURRAY v IRELAND AND AG 1985 IR 532 1985 9 2561

CONSTITUTION ART 40.3

F (T) v IRELAND 1995 1 IR 321

D (T) v C (T) 2002 3 IR 3342003 1 ILRM 321 2002 26 6842

FOY v AN T-ARD CHLARAITHEOIR & ORS UNREP MCKECHNIE 9.7.2002 2003/22/5126

GOODWIN v UNITED KINGDOM 2002 35 EHRR 447

CORBETT v CORBETT 1971 P 83

O'SHEA v IRELAND & AG UNREP LAFFOY 17.10.2006 2006 IEHC 305

EQUALITY ACT 2004

BRENNAN v AG 1983 ILRM 449

CONSTITUTION ART 26 OF THE EMPLOYMENT EQUALITY BILL, RE 1996 1997 2 IR 321

BLASCAOD MOR TEO v CMSR PUBLIC WORKS (NO 3) 2000 1 IR 6

DONOVAN v MIN FOR JUSTICE 1951 85 ILTR 134

RYAN v AG 1965 IR 294

MCGEE v AG 1974 IR 284

LOVING v VIRGINIA 1967 388 US 1

ZABLOCKI v REDHAIL 1978 434 US 374

TURNER v SAFLEY 1987 482 US 78

I v U K 2003 36 EHRR 53

KARNER v AUSTRIA 2003 EHRR 528

GHAIDAN v MENDOZA 2002 4 AER 1162

BAEHR v LOWEN 1993 852 P 2d 44

GRISWOLD v CONNECTICUT 1965 381 US 479

HALPERN & ORS v AG OF CANADA 2003 65 OR 4 161

CANADIAN CONSTITUTION

CANADIAN CHARTER OF RIGHTS & FREEDOMS S15(1)

BAKER v VERMONT 1999 170 VT 194 744 A2d 864

LAWRENCE v TEXAS 2003 539 US 558

GOODRIDGE v DEPARTMENT OF PUBLIC HEALTH 2003 440 MASS 309

WILKINSON & KITZINGER v AG 2006 2 FLR 397

CIVIL PARTNERSHIP ACT 2004 (UK)

REFERENCE RE SAME SEX MARRIAGE 2004 3 SCR 698

SINNOTT v MIN EDUCATION 2001 2 IR 545

MCGRATH v MCDERMOTT 1988 IR 258

WINTEMUTE & ANDENAES LEGAL RECOGNITION OF SAME SEX PARTNERSHIPS: A STUDY OF NATIONAL EUROPEAN & INTERNATIONAL LAW 1ED 2001

MATRIMONIAL CAUSES ACT 1973 S11(d)

CIVIL PARTNERSHIP ACT 2004 S1(1)(b) (UK)

CIVIL PARTNERSHIP ACT 2004 CH2 PART v (UK)

MATRIMONIAL CAUSES ACT 1973 S11

ESTEVEZ v SPAIN DECISION ECHR 10.5.2001

SHEFFIELD & HORSHAM v UK 1998 27 EHRR 163

T v T 2002 3 IR 3342003 1 ILRM 321 2002/26/6842

B v R 1996 3 IR 5491995 1 ILRM 491 1995/1/136

MURPHY v AG 1982 IR 241

NICOLAU, STATE v BORD UCHTALA 1966 IR 567

G v BORD UCHTALA 1980 IR 59

O'B v S 1984 IR 316

KELLY IRISH CONSTITUTION 4ED 2003 24

KELLY IRISH CONSTITUTION 4ED 2003 25

SUNSTEIN LEAVING THINGS UNDECIDED 1996 HARVARD LAW REVIEW 58

HANNOVER v GERMANY 2004 ECHR 294

JOHNSTON v IRELAND 1986 9 EHRR 203

MATRIMONIAL CAUSES ACT 1973 S11(c)

BAKER v NELSON 1971 291 MINN 310

JONES v HALIHAN 1973 501 SW 2d 588

DEAN v DISTRICT OF COLUMBIA 1995 653 A 2d 307

LEWIS v HARRIS 2005 378 NJ SUPRA 168

HERNANDEZ v ROBLES 2006 UNREP NY COURT OF APPEALS

ANDERSEN v KING COUNTY 2006 138 P 3d 963

WOO v LOCKYER 2006 UNREP SF SUPERIOR COURT CASE NO 504038 5.10.2006

QUILTER & ORS v AG OF NEW ZEALAND 1997 ICHRL 129

CONSTITUTION ART 15.1

N v HEALTH & SAFETY EXECUTIVE UNREP MACMENAMIN 15.9.2006 EX TEMPORE

GOODRIDGE v DEPT OF PUBLIC HEALTH & ANOR (MASSACHUSETTS) 4.3.2003

MORRISON v SADLER INDIANA COURT OF APPEAL 22.8.2002

RE SAME SEX MARRIAGE 2004 3 SCR 698

1 Ms. Justice Dunne delivered on the 14th day of December 2006

2 The plaintiffs in this case are women who are Irish citizens and domiciled in this jurisdiction. They have lived together as a co-habiting couple in a lesbian relationship since their relationship began in 1981. Since 1983 they have lived together in this jurisdiction. The first named plaintiff is a Public Policy Research Consultant and a member of the Human Rights Commission. The second named plaintiff is an academic who works as a lecturer in St. Patrick's College Drumcondra.

3 On the 13 ^th September, 2003, the plaintiffs married one another in Vancouver, British Columbia, Canada. In Canada recognition has now been given to same sex marriage. One of the issues in this case relates to the validity of that marriage in terms of Canadian law but more particularly in terms of Irish law. A number of statements of evidence were submitted to the court by the parties proffering different views on the validity of the marriage in Canada. Assuming that the marriage is regarded as valid in Canada, the question of the recognition of that marriage in this jurisdiction becomes an issue and if it is not entitled to recognition in this jurisdiction, then, the plaintiffs claim a right to marry in this jurisdiction. Throughout this judgment I will refer to the marriage of the plaintiffs as such - by doing so I do not purport to imply any conclusion as to its status either in terms of Canadian law or Irish law.

4 Subsequent to their marriage, the plaintiffs' solicitors wrote by letter dated 28 ^th April, 2004, to Oifig an Ard-Chláraitheora seeking confirmation that their marriage was legally binding in Ireland. The response by letter dated 10 ^th May, 2004, was: "the remit of the Registrar General does not extend to making a declaration on the validity of marriages that occur outside the State. This is a matter for the courts under s. 29 of the Family Law Act 1995."

5 A letter was also written by the plaintiffs to the first named respondents, the Revenue Commissioners, on 26 ^th April, 2004. That letter requested that the plaintiffs should be able to claim "our allowances as a married couple under the Taxes Consolidation Acts." Enclosed with the letter was a certificate of marriage, an affidavit of Kenneth W. Smith, a Canadian barrister and solicitor, which dealt with capacity to marry in Canada and the validity of the marriage in Canada. The Revenue Commissioners responded by letter dated 1 ^st July, 2004. It set out the effect of s. 461 of the Taxes Consolidation Act 1997. It went on to state as follows:-

" Section 1017 TCA 1997 provides for a husband being assessed on his and his wife's total income. Section 1019 provides for a wife being assessed on her and her husband's total income. The Taxes Act do not define husband or wife. The Oxford English Dictionary offers the following:

Husband - a married man especially in relation to his wife. Wife - a married woman especially in relation to her husband. Revenues interpretation of tax law is that the provisions relating to married couples relate only to a husband and a wife. Therefore I cannot allow your clients for allowances as a married couple."

6 Following the decision of the Revenue Commissioners, the plaintiffs herein sought leave to apply for judicial review in respect of that decision. The application for leave to apply for judicial review was granted by the High Court (McKechnie J.) on 9 ^th November, 2004. The order directed the applicants to serve a plenary summons and statement of claim together with copies of the statement of grounds and verifying affidavit and of the order of the High Court on the Revenue Commissioners and the Attorney General. Thus the matter ultimately came on for hearing before the High Court by way of plenary proceedings on 3 ^rd October, 2006.

7 In their pleadings, the plaintiffs referred to a number of provisions of the Tax Code and pointed out that they would benefit financially under the Tax Code, if recognised as a married couple living together. Alternatively they say that they are disadvantaged financially in Irish tax law through the lack of recognition for their marriage. It is further pleaded that although the words married persons, spouses, husband and wife are used in the various tax legislation referred to by the plaintiffs, no definitions for any of these terms are contained in the Tax Code. It is also pleaded that there is no definition of married persons so as to exclude persons of the same sex. It is pleaded that the defendants wrongfully and in breach of the plaintiffs' constitutional rights interpreted tax law to mean that the provisions relating to married couples relate only to husband and wife. It is further pleaded that in their interpretation of tax law and the refusal to treat the plaintiffs as a married couple the defendants acted without lawful authority, subjected the plaintiffs to unjust and invidious discrimination and acted in breach of the constitutional rights of the plaintiffs under ...