The term “common law marriage” is a phrase that is familiar to many people.
It does not however confer any legal rights in Ireland. Many couples have in the past, assumed in error that certain rights and responsibilities arose from their relationship.
The Courts have ruled consistently in the past that unmarried couples are not entitled to the special protection that the Constitution gives to married couples. The position had created harsh situations on the breakdown of relationships in terms of custody of children and division of property.
This position has now changed considerably since the passing of the Cohabitation Act of 2011.
The aim of the Act is to offer protection to people who become economically dependent on their cohabiting partner, either through the relationship itself or as a result of its ending.
But how do you prove economic dependence?
If the cohabitant can satisfy 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 can, if satisfied that it is fair to do so in all the circumstances, make an order requiring provision to be made for the applying partner.
The court will take a number of factors in the decision to make an order.
The financial circumstances, needs and obligations of each cohabitant existing at the time of the application or which are likely to arise in the future and the rights and entitlements of any spouse/civil partner or former spouse/civil partner.
In fact, the court cannot make an order in favour of a qualified cohabitant that would affect any right of any person to whom the other cohabitant is or was married or civil partnered.
The rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant are also taken into account.
The courts also consider the duration of the parties’ relationship, the basis of which the parties entered into the relationship and the degree of commitment of the parties to one another, the contributions that each of the cohabitants made or is likely to make in the foreseeable future in financial terms and any contribution made by either of them in looking after the home.
If one of the cohabitants has decided to leave the workforce in order to look after the home, then there may have an effect on their ability to support themselves independently of their cohabitant. This is another area that the courts are obliged to consider when making an order for provision for an applying cohabitant.
Finally the conduct of each of the cohabitants can also be a determining factor if the court believes that if would not be fair to disregard the conduct.
What kinds of Order can a Court Make?
If the Court decides to make an order in favour of one of the cohabitants this can take the form of a maintenance order or a pension adjustment order. These require a certain amount to be paid to the financially dependent cohabitant every week or every month. The court can also make an order requiring that a piece of property or land be transferred to the dependent cohabitant.
Look out further information on this developing area of law in our legal column in the next edition of this newspaper and on our website at lynchsolicitors.ie.