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Family Law Solicitors

A guide to the legal rights of co-habitants

Tuesday, 1 March 2016

Independent.ie

The Civil Partnership and Certain Rights and Obligations of Co-habitants Act, 2010 which came into law on January 1, 2011 provides for the rights of persons in long term co-habiting relationships who have not entered into a civil partnership or marriage. 

There is no distinction made in the 2010 Act between the rights and obligations given to opposite sex cohabiting couples or same sex co-habiting couples. In addition to establishing a statutory civil partnership registration scheme for same sex couples it also establishes a redress scheme for both opposite and same sex qualifying co-habiting couples who are not married to each other or registered in a civil partnership.

Section 172 of the 2010 Act defines a qualified co-habitant as one of two adults (whether of the same or opposite sex) who live together as a couple in an intimate relationship and who are (a) not related to each other, (b) not married to each other, (c) not civil partners of each other and (d) who have been living with their partner as a couple for a period of two years or more where they have dependent children, or five years or more in any other case.

Under the law as it stood prior to the commencement of the Civil Partnership Act, 2010 co-habitants had no automatic property rights, no rights of occupation in the property that was their home and no rights of inheritance or financial support. With the coming into force of the 2010 Act a qualified cohabitant now has access to the redress scheme provided for in the legislation.

Section 173 of the Act provides that a qualified cohabitant may apply to the Court for property adjustment orders, compensatory maintenance orders and pension adjustment orders on the ending of the relationship.

If the qualified cohabitant satisfies the Court that he or she is financially dependent on the other cohabitant then the Court may, if satisfied that it is just and equitable to do so in all the circumstances, make any of the Orders referred to above.

Furthermore a qualified cohabitant may after the death of his or her cohabitant apply to Court for an Order for provision out of the nett estate of the deceased.

The Court will have regard to all of the circumstances of the case but in particular the following:

  • Whether any property adjustment orders, compensatory maintenance orders or pension adjustment orders were made in favour of the applicant previously.
  • Any devise or bequest made by the deceased in favour of the applicant.
  • The interest of the beneficiaries of the estate.
  • The financial circumstances and the needs and obligations of each qualified cohabitant now or into the future.
  • The duration of the parties' relationship.
  • The degree of commitment of the parties to one another.
  • The extent to which the earning capacity of one may have been impaired by the relationship.
  • The rights and entitlements of any dependent children of this or a previous relationship.
  • The rights and entitlements of any spouse or former spouse, civil partner or former civil partner.

The Court shall not make an Order for provision out of the estate of the deceased cohabitant where the relationship ended before the death of the deceased and the Court is not satisfied that the applicant is financially dependent upon the deceased or the applicant has married or registered a civil partnership.

The 2010 Act provides that cohabitants may enter into a cohabitant's agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise. Such an agreement can provide that neither cohabitant may apply to the Court for a property adjustment order, a compensatory maintenance order or a pension adjustment order or for provision out of the estate of the deceased subject to the Court's power to vary or set aside a cohabitant's agreement in exceptional circumstances where enforcing the said agreement would cause serious injustice.

Such an agreement would only be valid if the cohabitants have each received independent legal advice prior to completing the document.

Gearóid Ryall is an Accredited Mediator and a partner in the firm of Mannix & Company, Solicitors, Tralee.

 

Kerryman