Ireland as a nation is changing and the traditional view of marriage, family and 2.4 children is less popular than it once was. As a consequence of this major shift in the nation’s psyche, more and more people in Ireland are living together as unmarried couples.
At first impression this may seem absolutely fine with very little consequences, if any. Unfortunately the law in Ireland, indeed most countries, moves very slowly and is rarely in step with changes in society.
This has led to major difficulties for some couples living together (cohabiting), in particular where one partner is financially dependent on the other and tries to seek redress following a breakdown in their relationship. Many questions start to surface such as what would happen if the couple break up after many years together and only one partner’s name is on the title deeds of the ‘family’ home?
In 2010 the ‘Civil Partnership and Certain Rights and Obligations of Cohabitants Act’ was introduced to remedy situations such as these by clarifying the rights and obligations of both same sex and cohabiting couples.
The Act now allows unmarried cohabitants to apply for maintenance, child maintenance, pension adjustment orders, property adjustment orders or a share in the estate of their deceased partner.
The Need To Qualify
Whilst those married or in civil partnerships are automatically entitled to apply for supports such as those mentioned above, one of the key differences for cohabitants is that they have no automatic right and they must first qualify in order to apply to the Court.
To qualify a cohabitant must prove that they are or have been:
- Living together in an ‘intimate’ and ‘committed’ relationship.
- Not married or in a civil partnership with someone else.
- Not related (i.e. not prohibited by law from marrying one another).
- Must have cohabited together for more than 5 years (2 years if they have a child together).
- If previously married they must have lived apart from their ex-spouse for at least 4 of the previous 5 years.
Time Is Of The Essence
It is important to note that having qualified to apply to the Courts strict time limits are in place as an application must be made within 2 years of the relationships breakdown, or 6 months from the date of the granting of probate (in the event of the other partner being deceased).
Important Factors The Court Will Consider
When deciding on a possible award to one of the cohabitants the Court will apply a series of tests to gauge the level of support required. These can be summarised as:
- Financial Circumstances
What are the needs and obligations of each cohabitant - Relationship Status
The duration and nature of the relationship - Rights of Others
Are there any spouses or civil partners, or former spouses or former civil partners who may be affected by any Award from the Court - Contributions made to the relationship
Financial and non-financial
Cohabitation Agreements
Another provision in the Act is that Cohabitants may decide to enter into a ‘Cohabitation Agreement’ with one another during their relationship in order to define how financial matters may be dealt with should the relationship breakdown or upon the death of one party. This could be a very prudent way to protect one another from awkward or unpleasant situations arising in the future should the relationship breakdown or one of the partners die.
No one likes to think about the possibility of things going wrong in their relationship, however, the facts speak for themselves and cases such as these are before the Courts on a regular basis. If one partner is financially dependent on the other for whatever reason (e.g. perhaps one partner has opted to stay at home to care for the family and to look after the family home), it is reasonable to assume that the last thing anyone would want would be for that party to suffer financially or lose their home should the relationship breakdown or the other partner die. This is where a Cohabitation Agreement comes in and could help to map out how things should work in the event that the relationship ends.
It is also important to note that a Cohabitation Agreement may specify that the parties will receive nothing from one another, however, it is normal for a Cohabitation Agreement to be used to determine how assets will be distributed should a split or death occur.
To ensure that a Cohabitation Agreement has been drawn up fairly and that no party is under duress when they signed it each party should seek professional legal advice and if necessary independent financial advice.
To Find Out More
Whilst cohabitation is an increasingly popular way for Irish couples to live it can present several legal issues should things go wrong or one of the partners die. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was a great step forward in recognising the rights of cohabiting couples. However, as with most legislation, strict rules are in place regarding the possible remedies available to you should things go wrong and it is important to understand how these rules will play out in different possible eventualities. At Poe Kiely Hogan Lanigan our family law team is experienced in dealing with matters such as these. Should you have any cause for concern or you would like to discuss drafting a cohabitation agreement, please do not hesitate to contact us by clicking the button below.
