Zappone & Anor -v- Revenue Commissioners & Ors, [2006] IEHC 404 (2006)

Docket Number:2004 19616 P
Party Name:Zappone & Anor, Revenue Commissioners & Ors
Judge:Dunne J.



THE HUMAN RIGHTS COMMISSIONNOTICE PARTYJudgment of Ms. Justice Dunne delivered on the 14th day of December, 2006

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.

On the 13th 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.

Subsequent to their marriage, the plaintiffs' solicitors wrote by letter dated 28th April, 2004, to Oifig an Ard-Chl√°raitheora seeking confirmation that their marriage was legally binding in Ireland. The response by letter dated 10th 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."

A letter was also written by the plaintiffs to the first named respondents, the Revenue Commissioners, on 26th 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 1st 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." 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 9th 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 3rd October, 2006.

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 Article 40 and 41 of the Constitution with particular reference to the provisions of Article 40.1, Article 40.3.1, Article 40.3.2, Article 41.1, Article 41.3.1 and Article 43. The plaintiff seek to have the relevant provisions of the Tax Code declared invalid having regard to the provisions of the Constitution if as interpreted they confine tax benefits to marriages consisting of husbands and wives and exclude same sex marriages. Alternatively reliance is placed on the provisions of the European Convention on Human Rights and it is pleaded that in failing to recognise the marriage of the plaintiff and to apply the provisions in tax law relating to married persons to the plaintiffs as a married couple that the defendants have discriminated against the plaintiffs on the grounds of their gender and/or sexual orientation in breach of article 14 of the Convention and have violated their right to respect for their private and family life and their right to marry under articles 8 and 12 of the Convention. Various reliefs are then sought in furtherance of the matters claimed in the statement of claim.

The defence delivered herein was to a large extent a traverse of the plaintiffs' claim together with a plea that the legislative provisions and the acts and wishes of the defendants which are impugned herein are required by and/or valid having regard to the provisions of the Constitution of Ireland and the defence goes on to particularise the specific provisions relied on in this regard.

The Evidence

Katherine Zappone outlined her background, her meeting with Anne Louise Gilligan and the commencement of their relationship. She described how they exchanged "life partnership vows" with one another in October, 1982, in Rockport, Massachusetts. Subsequently they came to Ireland and have lived here together since then. On November 27th, 1995, she acquired Irish citizenship.

Dr. Zappone then outlined her concerns about the taxation implications in respect of the sale of any property they owned and in particular her concerns in relation to the taxation implications in the context of the death of one or other of them. She pointed out that she herself didn't have any pension provision. For that reason a second property was bought by the plaintiffs and intended to be a resource for her pension. She pointed out that because their marriage was not recognised the survivor would suffer a significant tax liability as compared to the survivor of a heterosexual married couple. She expressed a concern that a gift to her from Dr. Gilligan of an S.S.I.A. which had recently matured could carry tax implications for her.

Dr. Zappone was then asked about the circumstances in which she and Dr. Gilligan decided to go to British Columbia to get married. She pointed out that the social context was changing with regard to the understanding of the normality of her sexual identity. She opined that lesbian and gay people started to seek the same right to marry that heterosexuals had enjoyed. She said that the rights, responsibilities and benefits and obligations that come with the institution of marriage are extremely diverse and varied but within those obligations she described those as being to care for Dr. Gilligan in sickness or in health, to be faithful to her for the rest of her days and to live together as a couple. Although she said that at this point in their lives the issues relative to taxation and financial security had become more important they were secondary to the desire to make a life commitment to her partner and consequently to marry her. She pointed out that apart from some practical reasons of convenience the reason for choosing to get married in British Columbia was because that was the only place where they could marry as there was not a requirement for citizenship or for residency prior to marriage.

She then gave evidence as to the correspondence with the Registrar General and with the Revenue Commissioners. As reference has already been made to that correspondence, it is not necessary to set it out again. She indicated her disappointment with the response of the Registrar General and her view that the lack of an opportunity to marry in this jurisdiction amounted to discrimination on the basis of her sexual identity. In relation to the correspondence from the Revenue Commissioners she indicated that she also experienced a sense of great discrimination. As a result of that correspondence it was decided by the plaintiff to take legal proceedings on the basis that they had experienced discrimination by virtue of the failure to recognise them as a married couple.

She said that in the past Dr. Gilligan had suffered from breast cancer and accordingly she, Dr. Zappone, ceased working for a period...

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