Cohabitation: What are your rights?

Do you have any rights at the end? The Cohabitants Act

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 came into force on 1 January 2011.

The introduction of the Act was a milestone in Irish family law.  From a position of being ‘behind the curve’ in terms of family law legislation, Ireland is now ahead of many jurisdictions, including England, in legislating for cohabiting couples.

Up to the 2010 Act, couples who were cohabiting (even for many years) acquired no automatic property rights, no rights of occupation in the property which was their home, no financial support, no maintenance, no pension or no inheritance rights for a partner.

There are a great variety of people who live together and can, probably, be grouped in these categories:

• The casual cohabitants who drift into living together.
• Those living together as a forerunner to marriage.
• The conscientious objectors to marriage.
• The battle scarred, separated and divorced persons who do not want to commit again.
• Those who live together because they could not marry (pre divorce).
• Those who believe that they are married to each other after a foreign divorce.

The Act was welcomed for providing for vulnerable couples on the ending of a relationship or the death of their partner.

Video: Cohabitation Rights

Who Is A Cohabitant?

A cohabitant is one of two adults (whether of the same or the opposite sex) who ‘live together’ as a couple in an ‘intimate and committed relationship’.

They must not be in a prohibited degree of relationship (eg. sibling, first cousin), married or civil partners of each other.

In deciding if two adults are cohabitants, the Court will review all the circumstances, but, in particular, will look at:

• The length of the relationship.
• The basis on which the couple live together.
• Agreements on finances or the degree of financial dependence.
• The nature of any financial arrangements, including any joint property purchases.
• Whether there are dependent children.
• Whether one cares or supports the children of the other.
• The degree to which the adults present themselves as a couple.

Each case will raise questions of fact, such as, were the parties living together, was the relationship intimate and committed, how long was the relationship, and when did it end?

The relationship must be more than a ‘mere friendship’ or dating relationship but the parties do not have to be living ‘physically at all times in the same shared premises.’  ‘Intimate and committed’ means that the parties must be, or must have been, sexually intimate.  The Court will look at the checklist set out in the Act, such as the length of the relationship and financial arrangements.  However the degree of shared activities, household chores and shared holidays can also be accepted as proof of an intimate and committed relationship.  [Baker J in Dc v DR [2015] IEHC 309.]

How long do you have to be living together to qualify as a cohabitant?

To avail of the Act, you must be a ‘qualifying cohabitant’. 

This means cohabiting for:

• Two years, if you have dependent children, or
• Five years, in any other case.

The period of cohabitation has to be one continuous period and cannot consist of a number of periods.

A couple will not qualify if they cannot marry because they are not divorced or entitled to be divorced.

What can a cohabiting partner expect? The Redress Scheme?

A qualified cohabitant must prove that they are ‘financially dependent’ because of the relationship or the ending of it.

If the court is satisfied that it is ‘just and equitable  itmay make certain financial orders – such a transfer of property, maintenance or pension payments.

In making a decision, the Court will look at:

• The financial needs and obligations of each person.
• The entitlements of any prior spouse or civil partner.
• The entitlements of any dependent child of a previous relationship.
• The duration & basis of the relationship and the degree of commitment to one another.
• The contributions made, including any contribution made to the income and earning capacity of the other.
• Any contributions made by either of them in looking after the home.
• The effect on the earning capacity of each cohabitant of the responsibility assumed by each of the.m;
• The extent to which the earning capacity of one may have been impaired by reason of having relinquished or foregone opportunity to look after the home.
• Any physical or mental disability of the qualified cohabitant, and
• The conduct of each of the cohabitants if conduct is such as it would be unjust to disregard it.

The court has power to make:

• Property Adjustment Orders, which can mean transferring property even where the other partner is sole owner.
• Maintenance Orders, which can include lump sum payments.
• Pension Adjustment Orders, which can involve transferring all or part of a pension payment.
• Payment out of the estate of a deceased partner, even if there is not financial dependency.  Such a payment cannot be any more than a spouse would receive in similar circumstances. 

Depending on the amount involved, you can make an application in the District , Circuit or High Court.

Is there a Statute of Limitations? How long do I have?

Where the relationship breaks up, a claim must be made within two years.

If a partner dies during the relationship, a claim must be made within two years.

If one of the cohabitants dies within the two years of the relationship ending, the surviving partner has a further 6 months from looking after the legal formalites ( called:’ the taking out of Representation’) (what does this mean?) to make a claim.

The Court has power to extend this period in exceptional circumstances.

The Cohabitants Agreement – Can we agree without going to court?

The Act provides that cohabitants can enter into a Cohabitants’ Agreement on financial matters during or at the end of the relationship.

This is an encouragement to couples, who do not want to marry or register a civil partnership, to take control of their own arrangements.

The agreement might simply set out that the parties opt out of any Court intervention or comprehensively set out how the couple intend to deal with the financial aspects of their relationship.

Such an agreement commonly covers who pays the household mortgage and bills, who owns the family home, what happens on breakup or death, what happens the home, inheritance rights, maintenance or pension payments.

It is worthwhile bearing in mind that a Court has the power on the ending of a relationship, if asked to do so by one of the couple, to vary or set aside a Cohabitants’ Agreement.

There must be exceptional circumstances such that to enforce the agreement would cause serious injustice.

A Cohabitants’ Agreement must be in writing and signed with legal advice.

Are you cohabiting? Can we help? Get in touch

For further advice or if you wish to discuss any other legal area please contact [email protected] or telephone 052-6124344.

This material is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice on any legal decision or course of action.