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.
Cohabitants can fall into a wide variety of categories, ranging from young couples living together; either before or instead of marriage, to older couples where one or both may be separated or divorced and either unwilling or unable to enter into marriage. The often used phrase of “common law wife/husband” is now given a statutory footing of sports. Until the Act, Irish law did not make any provision for the status of cohabiting couples or any financial or property relief following the breakdown or end of their relationship unless a party could prove financial contribution.
Under 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 person applying to the Court must be financially dependent on the other person.
The Act has a Cohabitation Redress Scheme which offers protection to a financially dependent person if the cohabiting relationship ends on the breakdown of the relationship or death. The Act also introduces “cohabitant agreements” allowing cohabitants to manage their joint financial and property affairs. An agreement between cohabitants, to provide for financial matters during their relationship or at the end of the relationship, will be valid if they have received independent legal advice and the agreement is in writing and signed by both parties. Cohabitants can also choose to opt out of the redress scheme in their “cohabitants’ agreement”.
Cohabiting couples do not have automatic rights; the Court will decide each case individually. A qualified cohabitant may make an application to the Court for redress. If the Court is satisfied that s/he is financially dependent on the other cohabitant and that the dependence arises from the relationship or the ending of the relationship, the Court may make the order concerned. The Court will take a number of matters into account including the financial circumstances, needs and responsibilities of each of the cohabitants, the length 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.
The Act deals with several different scenarios. If one of the cohabitants is already married and has not yet obtained a Divorce, s/he must have lived apart from their spouse for at least four years to come within the Act. An application for redress may only be brought where a relationship ends since the Act was passed in January 2011 but the time during which a couple cohabited before the date of the Act may be included for the purposes of calculating whether they are “qualified cohabitants”.
The Court can make various orders for cohabiting couples such as Property Adjustment Orders, Compensatory Maintenance Orders, Pension Adjustment Orders and an Application for provision from the estate of a deceased cohabitant.
A qualified cohabitant can apply to Court to receive financial support from the estate of a deceased cohabitant if the Court is of the opinion that the deceased cohabitant failed to provide financially for the cohabitant. The Court will also take into account factors such as the legal rights of any surviving spouses, civil partner or children of the deceased.