Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; A Summary

The purpose of this article is to highlight some of the key sections of the Act relating to cohabitating couples.

The Act extends marriage like benefits to same sex couples in the areas of property, social welfare, succession, maintenance, pensions and tax through a new regime for Civil Partnership.

The Act also provides protections for other cohabiting couples including a redress scheme for financially dependent long-term cohabitants on the ending of a relationship, whether by break-up or death.

COHABITANTS

The part of the 2010 Act dealing with cohabitants was less widely publicised than civil partnership but given the high number of people in co-habitation arrangements in Ireland is an equally important new area of law.

The Act does not confer automatic rights on cohabitants but rather it provides a right to qualifying cohabitants to seek financial redress at the end of a relationship i.e. the rights conferred are latent whilst the relationship is still in existence.

An application for financial redress must be made within 2 years of the relationship ending.

Under the Act a cohabitant is defined as “one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.” This would of course exclude same sex couples as they are prohibited from marrying each other in the State at present.

A qualified cohabitant is defined as  “an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period –

(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and

(b) of 5 years or more, in any other case.”

In seeking redress from the Courts, the qualifying cohabitant must satisfy the Court that he/she is financially dependent on his/her partner and that the financial dependence arises from the relationship or the ending of the relationship. If the Court is satisfied that such financial dependence exists it may make the following orders:-

1. Maintenance Payments;

2. The transfer of property from one party to the other;

3. A share in the pension of the other party;

4. A share in the other party’s estate on death.

In making any orders the Court must consider the following:-

1. The financial circumstances of each of the parties;

2. The rights and entitlements of any spouse/former spouse or civil partner/former civil partner;

3. The rights and entitlements of any dependent children;

4. The length of the relationship between the parties;

5. The financial contributions made by each of the parties;

6. The contribution made by either party in looking after the home.

Cohabitating couples may also have rights on the death of their cohabitants to a portion of their estate and this is dealt with under Section 194 of the Act which provides that a qualified cohabitant may, after the death of his or her cohabitant, apply for an order for provision out of the net estate provided this is done within six months of representation being granted under the Succession Act 1965.

If the relationship had not terminated before the death of the cohabitant, the test applied by the court is not necessarily based on the financial dependence of surviving cohabitant on the deceased. This can be contrasted to the scenario where the relationship had terminated prior to the death of the cohabitant, where the court must be satisfied that the surviving cohabitant was financially dependent on the deceased.

However, in both cases, the court will consider factors such as any devise or bequest made by the deceased in favour of the surviving cohabitant, the interests of the beneficiaries of the estate, the financial needs of the cohabitants and the rights of others (e.g. a child of either/both cohabitants). It should be noted that where the relationship had ended two years or more before the death of the deceased, the surviving cohabitant cannot make an application under this section unless they were in receipt of periodical payments from the deceased.

A Cohabitation Agreement would enable a couple to contract out of the provisions of the Act and this is allowed for at section 202 of the Act.  In order for a Cohabitation Agreement to be valid both parties must have received independent legal advice, or have received independent legal advice together or waived their right to independent legal advice.  The agreement should be in writing and signed by both parties.  The general law of contract applies.

N.B. The above article is for general guidance only and does not constitute legal advice.  Specific legal advice should always be taken.