Tipp FM Legal Slot – 2nd April 2013
Gillian O’Mahony on Cohabitants
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This morning I will begin the first of our Family Law topics with Cohabitants.
What is the Civil Partnership Act?
The Civil Partnership Act came into effect on 1st January 2011. The Act is two-fold as it provides for both the civil registration of same-sex partnerships and also the rights and duties of cohabiting couples whether same sex or opposite sex.
What is a Cohabitant?
Cohabitants can fall into a wide variety of categories, rangin
g from young couples living together either prior to or as an alternative to marriage, to older couples where one or both may be separated or divorced and either unwilling or unable to enter into marriage. Co-habitants can of course be same sex or opposite sex. As many couples are now cohabiting, instead of, or before, marriage, it is very important for people to be aware of their rights and responsibilities as cohabitants.
How does the Act benefit cohabiting couples?
The Act contains a Cohabitation Redress Scheme which offers protection to a financially dependent party in the event that a cohabiting relationship ends, whether due to relationship breakdown or death. The Act also provides for the recognition of cohabitant agreements which enable and encourage cohabitants to regulate their joint financial and property affairs.
“Qualified” cohabitants can apply to the Court for certain remedies such as maintenance, property adjustment orders, pension adjustment orders or provision from the estate of a deceased cohabitant.
What about Common Law spouses – are they provided for in this Act?
The often used phrase of “common law wife/husband” had given many couples an impression that certain rights or entitlements accrued from their relationship.
Indeed, many cohabitants still believe that a legal status attaches to such relationships and until the enactment of the Act, Irish law did not make any provision either for the status of cohabiting couples or any financial or property relief following the breakdown or end of their relationships. Unlike spouses, unmarried or cohabiting couples had no claim to any property owned by their partner.
Can someone who was in a relationship with someone and if that relationship has broken down simply apply for maintenance or are there requirements that must be met?
The Act effectively puts in place a legal “safety net” for people living in long-term relationships who may be financially vulnerable at the end of a relationship, whether through break-up or bereavement.
Under the provisions of the Act, a cohabiting couple must have lived together in an intimate and committed relationship for five years or two years if the parties have children together and the party looking for redress from the Court must be financially dependent on the other party.
Automatic rights are not conferred on cohabiting couples, but rather the Court will decide each case based on its own circumstances and merits.
What do you do if you want redress under the Act?
The Act provides that a qualified cohabitant may make an application to the court for redress and if the qualified cohabitant satisfies the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances, make the order concerned.
What will the Court take into account when deciding to make an order e.g. an order for maintenance?
The Court, when deciding on such a case, will take a number of matters into account including the financial circumstances, needs and obligations of each of the cohabitants, the duration of the relationship, the contributions made by each of the cohabitants during the course of the relationship, the effect that the relationship has had on the earning capacity of the cohabitants and the conduct of the cohabitants.
In assessing the nature of the relationship, the court must take into account the duration of the relationship, the nature and extent of common residence and the degree of financial dependence or interdependence, together with the degree to which “the adults present themselves to others as a couple”, whether there are one or more dependent children and whether one of the adults cares for and supports the child(ren) of the other.
What if one of the Cohabitants is already married and has not yet obtained a Divorce?
The Act also deals with this scenario and provides that to be considered a cohabitee for the purpose of the act where one of the cohabitants is already married that person must have lived apart from their spouse for at least four years to come within the Act.
What if someone was in a relationship that ended last year – do they now have protection under this Act?
The Act also deals with this scenario and provides that the time during which a couple cohabited before the commencement date of the Act may be included for the purposes of calculating whether they constitute qualified cohabitants within the meaning of the legislation. However, an application for redress may only be brought where a relationship ends, whether by death or otherwise, after the commencement of the Act.
What Orders can the Court make?
- Property Adjustment Orders
- Compensatory Maintenance Orders – both periodical payments and lump sum payments
- Pension Adjustment Orders
- Application for provision from the estate of a deceased cohabitant (inheritance rights)
On the death of one of the Cohabitants what can the Court do?
The Act introduces a discretionary scheme whereby a qualified cohabitant may apply to court for provision where inadequate or no provision has been made for them by a deceased cohabitant. The Act allows the court, on application to it by a qualified cohabitant, to make provision for that person from the estate of a deceased cohabitant if the court is of the opinion that the deceased cohabitant failed to make adequate, or any, provision in accordance with his or her means, whether by will or otherwise. In these circumstances, it is envisaged that the court might make such provision for that qualified cohabitant from the “net estate” (meaning the net estate after satisfaction of priority liabilities, and the legal rights, if any, of the Deceased’s surviving spouse or civil partner) as the court may consider just and equitable. In this regard, the court will also take into account various factors and, in particular, to take into account the legal rights of any surviving spouses, civil partner or children of the deceased.
You mentioned Cohabitation Agreements earlier – what are these?
The Act now provides for the validity of agreements to provide for “financial matters” between cohabitants, referred to in the Act as “cohabitants’ agreements”. The Act establishes that an agreement between cohabitants to provide for financial matters during their relationship or at the end of the relationship (whether on death or otherwise) will be valid if they have obtained independent legal advice and the agreement is in writing and signed by both parties.
It is also possible under the Act for cohabitants to specifically opt out of the application of the redress scheme in their cohabitants’ agreement, if they so decide.
In other words, the Act will provide legal certainty as to the status of “cohabitants’ agreements” made by couples who wish to regulate their financial and property affairs but who do not wish to marry or enter a civil partnership, and/or who have chosen to exclude the application of the redress scheme to them.
