The Civil Partnership Act came into force on 1st January 2011. The Act is two-fold as it includes both the civil registration of same-sex partnerships and 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 prior to 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 Act contains a Cohabitation Redress Scheme which offers protection to a financially dependent person if the cohabiting relationship ends, whether due to relationship breakdown or death. The Act also introduces “cohabitant agreements” allowing cohabitants to manage their joint financial and property affairs.
The often used phrase of “common law wife/husband” had given many couples the wrong impression. 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 relationships. Unlike spouses, unmarried or cohabiting couples, up until now, had no claim to any property owned by their partner. 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.
Cohabiting couples do not have automatic rights; the Court will decide each case individually. The Act provides that a qualified cohabitant may make an application to the Court for redress. If the Court is satisfied that he or she 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. In assessing the nature of the relationship, the Court must take into account the duration of the relationship, their shared home 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.
The Act deals with several different scenarios. If one of the cohabitees 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 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. In these circumstances, the Court might make a provision for the qualified cohabitant from the “net estate” (meaning the estate after liabilities and the legal rights, if any, of the Deceased’s surviving spouse or civil partner). The Court will also take into account factors such as the legal rights of any surviving spouses, civil partner or children of the deceased.
The Act now introduces “cohabitants’ agreements” to provide for “financial matters” between cohabitants. According to the Act 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”.
In view of the far reaching effects of the Civil Partnership Act it is important that all co-habiting couples obtain legal advice on how best to regulate their financial and property affairs.