Cohabitation

If you are not married to your partner and you do not have a registered civil partnership it is important to know that if you are cohabiting with your partner you do have certain rights if your relationship breaks down or one of you dies.

You must meet the criteria for a qualified cohabitant which includes among others the fact that one of you has to be financially dependent on the other and that you have lived together for at least two years if you have one or more dependent children or for a period of five years in any other case. The law is contained in the Civil Partnership and Certain Rights and Obligations of the Cohabitants Act of 2010 which came into law on 01 January 2011. Part 15 of that Act is relevant to cohabitation. If you qualify and your relationship breaks down you can make an application for redress under Section 173 of the Act. These rights are more limited in both nature and extent than those currently available to married couples and civil partners. The Court can make certain property adjustment Orders and in so doing, could deal with the family home but must take a number of matters into consideration. These matters include both partners financial circumstances, the rights and entitlements of any spouse or former spouse, the rights and entitlements of any partner or former civil partner, the rights and entitlements of any dependent child or of any child of a previous relationship, the length of the relationship, the degree of commitment to each other, the contributions made by both partners, the contribution made by either partner in looking after the home, each partners earning capacity, any physical/mental disability and the conduct of each partner. Before the Court makes any Order with regard to property it must decide if it would be more practical to meet either partner’s needs by way of a Maintenance or Pension Order.

As a qualified cohabitant you can apply to the Court for provision out of the estate of a deceased cohabitant provided you comply with certain terms and conditions. The Court must be satisfied that proper provision was not made for you during the lifetime of the deceased. In such circumstances it is very important that you notify the executor/personal representative of the deceased partner.

All claims except in exceptional circumstances must be made within two years. Most claims will be heard in the Circuit Court but the District Court does have the ability to hear cases of maintenance / periodical payments at a sum less than €500.00 per week. Section 202 of the Act provides for cohabitants to enter into an agreement which can regulate their financial matters during their relationship or when the relationship whether through death or otherwise. An agreement can set out clearly the intentions of the parties as to ownership of property, payment of mortgages, guardianship of children and what is intended to happen at separation or death. Full disclosure needs to take place and the agreement needs to be fair and reasonable, prudent, voluntary and without undue influence. The Agreement must be in writing and each party must get independent legal advice. The Agreement can provide that neither of you may apply for redress to the Court or provision out of each other’s estate on death. The decision as to whether to enter into an Agreement with this waiver clause is not necessarily an easy one. If you as cohabitants are older, have already reared your family, have no dependents and are of independent means then an Agreement may be exactly the correct course of action to protect each of your existing properties, income and family succession. In such circumstances an Agreement renouncing any claims may be strongly advised and will be a comfort and security for each of you and your respective families. On the other hand if you as cohabitants have one or more dependent children and one of you is financially dependent on the other then it is inadvisable that you would waive or renounce your rights in an Agreement. Each situation has to be examined carefully and extreme caution and detailed independent legal advice is strongly advised. Please see our detailed paper on cohabitation on our website.

Helen Collins

Wolfe & Co.

www.wolfe.ie

info@wolfe.ie