New rights and obligations relating to couples that cohabit have been introduced pursuant to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the Act”) which came into law in January 2011. The rights and obligations for cohabitants in the Act are a radical departure from the pre-existing position whereby cohabiting couples had little or no rights or obligations as against each other. It is important for couples living together to understand their possible new rights and obligations but it is also important for such couples to be aware that it is possible to contract out of the Act as it relates to cohabiting couples.

In order to qualify as a cohabitant a couple, whether same sex or opposite sex, must be living together in a committed relationship for five years, or two years if they have children together. It is important to note that the Act does not confer any automatic rights on such a couple but rather provides a redress scheme, allowing a financially dependant party to the relationship to apply to Court for relief in the event that the relationship breaks down or the other party dies. Previously such a party had no recourse if not married and could therefore be left in a very vulnerable position financially even if the couple had been in a committed relationship for many years.

The Act provides a welcome safety net for cohabitants left in a financially vulnerable position following the end of the relationship. However, on the other hand for a non dependent cohabitant the Act can mean that such a partner (or former partner) in the relationship may, unknown to him or her, have significant obligations to his or her financially dependant cohabitant if the relationship were to break down or if he or she (the non dependant cohabitant) were to die. It is important therefore that couples living together are aware of the new provisions and of their ability to contract out of the Act by means of a Cohabitation Agreement.

The Act makes provision for the recognition of Cohabitation Agreements. Such agreements can deal with issues such as what happens in relation to property, maintenance and other financial aspects of a relationship in the event the relationship breaks down or one party dies. Previously parties could only enter into an agreement in relation to property – now the agreement can deal with all of their financial affairs. Such agreement are only enforceable if they are in writing and if both parties have received independent legal advice and the terms must be negotiated on the basis of full financial disclosure by both parties. The Act does allow a Court the power to undo such an agreement if it is in the interests of justice to do so, although it is arguable that it is possible to contract out of this provision also!

Awareness of the new provisions contained in the Act for cohabiting couples is therefore vital. However, it is equally important that couples are aware of their right to contract out of the Act and to agree between them how to regulate their obligations and rights to one another by means of a Cohabitation Agreement in the event that the relationship ends or one party dies. For many couples it would be far more preferable to be in control of their legal obligations and rights to one another in such circumstances rather than leaving such rights and obligations to be imposed at the discretion of a Judge.

Justin Spain

This article appeared in – The Law Society Gazette | December 2015

From experience I know there are many couples out there blissfully unaware of the fact they may have rights and obligations against each other

When the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 became law in January 2011 the civil partnership element received much media coverage and was broadly welcomed. However, the Act also introduced an important safety net for cohabitants and this part of the Act has come into force somewhat under the radar despite the fact it is this part that will potentially apply to a far greater number of couples than those in civil partnerships.

It remains the case in this country that the vast majority of families consist of married couples. However, the number of cohabiting couples is rising fast – the 2011 Census showed there were 143,000 in Ireland, an 18 per cent increase on the 2006 Census. This makes cohabiting couples the fastest growing family unit in Ireland.

Historically, cohabitants have had little or no rights in the event the relationship ended or one of them died. This is in stark contrast to married couples, who have enjoyed significant protection under the succession and matrimonial legislation.

To illustrate this point, take the example of a woman who has lived with her partner for 20 years but is not married to him. She gave up her job to have a family with him and sacrificed her career prospects to raise their children. Her partner is the sole earner, owns the house and is the only one of them with a pension. He meets someone else and ends the relationship.

Until recently she would only have been entitled to seek maintenance for the children – she would not have been entitled to maintenance for herself or to claim against any of her partner’s pension or their home (unless she had actually put money into it).

Vulnerable financial position

This would have potentially left her in an extremely vulnerable financial position. Similarly, if her partner died she had no automatic rights to any of his estate. This example illustrates the unfairness of the law as it applied to married couples as opposed to couples who lived together as a family unit but were not married.

The 2010 Act changed this by providing a redress scheme which would allow the woman in this example to apply to Court for financial relief, including orders for maintenance for herself, sale of property and pension provision. She would be able to claim against his estate if he had died.

To qualify as a cohabitant under the Act a couple must be living together in an intimate and committed relationship for five years, or two years if they have children together. A cohabitant must also satisfy a court he or she has been left in a financially vulnerable position as a result of the relationship breakdown due to their financial dependence on their partner. If these tests are met then the Court can make a range of orders in their favour.

This is a very progressive piece of legislation. For example, England has not introduced such provisions for cohabitants and so while Ireland has been behind the curve historically compared to England when it came to matrimonial legislation, in this respect at least Ireland is now leading the way.

However, there are some shortcomings. Important factors that need to be satisfied to qualify as a cohabitant are not defined in the Act, for example the phrases “intimate and committed relationship“ and “financial dependence”.

Within two years

The Act states a claim must be brought within two years of the end of the relationship but how do you define when a relationship has ended – one party may think it is going fine whilst the other party may feel it ended some time ago.

Furthermore, since there are no automatic rights the only avenue open to a cohabitant to get financial relief is to go to court. This can be expensive and, with the availability of legal aid so limited due to delays and means testing, many might be put off going to court because of the cost and also because the lack of cases so far means outcomes are uncertain.

The Act can also throw up some claims for relief that one might consider on the face of them to be unjust. Undoubtedly the Act is very welcome for the woman in the example above. However, take a different example. A divorced man owns his own house, mortgage free, and has a good income. He meets a woman and after a time she moves in with him, gives up her job with his consent and becomes financially dependent on him.

After seven years together she starts to drink heavily and become verbally abusive. Some time later he has had enough and asks her to leave. She then brings a claim under the Act for the sale of his house, maintenance and pension provision. No doubt the man in this example would be horrified to find out she may be entitled to bring such a claim under the Act.

From experience I know there are many couples out there who are blissfully unaware of the fact they may have rights and obligations against each other. Therefore whilst overall, this is a very welcome and progressive piece of legislation, the Act is crying out for an information campaign funded by Government to make cohabiting couples fully aware of the provisions contained in it.

Justin Spain is a Dublin-based solicitor specialising in family law

By Justin Spain – Irish Times | Mon, Jul 08, 2013 | Link to Irish Times Article

About a thousand same-sex couples have entered into civil partnerships since the first Irish ceremony took place in April 2011. For many of these couples, thoughts will now be turning towards starting a family….

By Joanna Roberts – Irish Times | Fri, Mar 01, 2013 | Link to Irish Times Article

OPINION: AFTER LAST year’s introduction of civil partnerships for same-sex couples, the debate has swiftly progressed to the question of introducing gay marriage. Several characteristic limitations of the case for doing so are apparent in Kieran Rose’s argument in favour (The Irish Times, April 10th).

A number of self-contradictory or inaccurate arguments must be dispatched before the kernel of the question can be reached.

Public opinion data showing majority support for the introduction of gay marriage is now increasingly cited. This is doubtless accurate.

Public opinion is, however, no more conclusive a reason to legislate for gay marriage today than hostile opinion was good reason to delay reform concerning homosexuality.

Gay activists retrospectively give false legitimacy to the criminalisation of homosexuality in Ireland until 1993 by adducing opinion polling to a debate requiring resolution by reference to the common good. If majority opinion today is good cause to introduce gay marriage, it must have been similarly good cause for the profound imprudence of the law until two decades ago.

That this is absurd betrays not only a shallowness discernible in the case for gay marriage but also what has to be identified as a degree of intellectual dishonesty.

One is as likely to hear both that the Irish public desires the introduction of gay marriage and that the Irish public harbours a dangerous degree of homophobia.

Rose draws on both claims, yet they are clearly self-contradictory.

Separately but similarly, Rose says summarily “the court of public opinion has spoken”. This constitutes an attempt to shut down the debate on gay marriage.

One could appeal to the injustice of this commonplace summary cloture, visible at the recent Fine Gael Ardfheis at which no dissenting voice was allowed speak against the pro-gay marriage motion, but it is wiser to appeal to the imprudence of the imposition of gay marriage by decree rather than by decision.

Closely allied is the frequency with which opponents of gay marriage find their arguments pathologised rather than engaged. This is true despite the existence of gay opponents of gay marriage, such as this writer.

As for claims raised in the name of the gay community, I would prefer if someone with whom I share nothing but sexual orientation did not use that rather uninteresting fact to raise in my name political claims I and others do not share.

Rose states that gay marriage would have “resonance in related areas of difference and inclusion such as ethnic origins”. In short, we are asked to believe that Irish social cohesion through demographic change rests in enough measure to warrant mention on the introduction of gay marriage.

That such arguments can be made with a straight face indicates not only a certain hubris one detects in Irish liberals today.

Perhaps more tellingly, it bespeaks the absence in this country of much willingness in the media or in the political debate to scrutinise Irish liberalism rather than genuflect to it.

In terms of its attitudinal centre of gravity, Ireland has swung from one pole to another in recent decades. Yet comparing today’s Ireland with the Ireland of Archbishop McQuaid reveals that neither the deferential quality of debate in Ireland nor its intellectually undernourished nature have much altered.

The essence of the gay marriage demand is stated by Rose in the assertion that “the right to marry is a basic human right”. So far as claims of justice are concerned, this is the most serious contention that can be raised in support of the introduction of gay marriage.

In Rose’s account, the claim is buttressed by the UN Charter of Human Rights and “other human rights treaties”. Such claims are raised increasingly frequently. They rest on no more than assertion.

Recently, France’s supreme court has found that no discrimination is implied in the distinction between marriage and partnership provisions. The European Court of Human Rights has found there is no right to gay marriage in the European Convention on Human Rights and this does not amount to discrimination.

In considering gay marriage, it is essential to see treating different situations differently in no way constitutes discrimination.

What is more fundamental here is the co-option of human rights language by an increasingly hegemonic strain of intolerant liberalism. Whereas the “right to marriage” as pertaining to couples of the same sex is a recent invention, the right of a child to both a mother and a father where possible is not.

The reason for opposing the unnecessary elevation of civil partnerships to the notional status of marriage is that marriage then loses its nature as the one institution supported by society because it is the family form which on average gives a child the most advantageous upbringing.

It is agreed by most that civil partnerships mostly suffice in practical terms for same-sex couples. Altering the focus of marriage from children to relationships disadvantages future generations to no more necessary end than the further march of an increasingly cavalier and triumphalist liberalism.

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Richard Waghorne is a freelance journalist

By Richard Waghorne – Irish Times | Fri, Apr 20, 2012 | Link to Irish Times Article

LEGAL OPINION: RECENTLY ENACTED cohabitation laws have important legal and financial implications for cohabiting couples. Given that the 2006 census enumerated 121,800 couples living together outside of marriage, the new laws potentially affect a significant number of families. They offer particular protection to financially vulnerable long-term cohabitants in the wake of relationship breakdown.

The new requirements are laid down mainly in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force on January 1st, 2011. While the Act affords limited rights to “cohabitants”, enhanced legal protection is offered to a special category of long-term cohabitants called “qualified cohabitants”.

A cohabitant is one of two adults living together in an intimate and committed relationship. They may be opposite-sex or same-sex couples but must not be closely related. They may be married to (or in a civil partnership with) other people, but not each other.

Subject to certain conditions (particularly regarding the duration of cohabitation), cohabitants are automatically recognised in law in a limited range of contexts, including domestic-violence protection and wrongful- death suits. In an important break with the legal position prevailing pre-2011, cohabitants may now also enter into legally binding agreements governing their property and financial interests.

An enhanced “redress scheme” applies to “qualified cohabitants”, defined as cohabitants who have lived together for at least five years, or two years if they have had a child together. Where either cohabitant is married, neither cohabitant will be treated as a qualified cohabitant unless the married cohabitant has lived apart from his spouse for four of the previous five years.

Under the redress scheme for qualified cohabitants, a court may make various orders if the parties’ relationship ends. To avail of these orders, however, a qualified cohabitant must demonstrate financial dependence. An applicant with sufficient independent means will likely be denied relief.

Three types of court order are available to financially dependent qualified cohabitants following the end of a relationship. These orders generally must be sought within two years of the relationship ending. The applicant may first seek maintenance (financial support), to be paid either periodically or in a lump sum. The court may also make an order allocating part of a qualified cohabitant’s pension entitlements to the applicant. Finally, the court may reassign property, though only if maintenance and pension adjustment orders would not be sufficient to address the applicant’s needs.

There is no automatic right to redress. Whether and to what extent relief will be granted will depend, in particular, on the needs, resources and other obligations of each party.

A cohabitant has no automatic entitlement to provision on the death of a partner (though cohabitants may provide for each other by will). A surviving qualified cohabitant may, however, apply to court for provision from the deceased’s estate, if proper provision has not otherwise been made for the survivor. Unless the couple were still in a relationship at the time of death, the survivor must demonstrate financial dependence.

Notably, couples may opt out of the qualified cohabitants redress scheme by entering into a written cohabitation agreement, although careful steps are required to ensure such agreements are valid.

The Act does not apply to relationships that ended before January 1st, 2011, although time spent living together prior to that date is counted in determining whether a person is a qualified cohabitant from January 2011 onwards.

Even in respect of qualified cohabitants, the obligations and rights conferred by law are nowhere near as extensive as those applying to either civil partners or spouses. Crucially, redress is predicated on financial dependence, the sole exception being provision from the deceased’s estate where the parties were still a couple at the time of death. Qualified cohabitants with sufficient independent resources will otherwise not qualify for relief, regardless of their contribution to the relationship. Where the qualified cohabitant against whom redress is sought is or was married, moreover, the interests of his spouse or former spouse are prioritised, such that the relief available to the other qualified cohabitant may, in such cases, be quite limited indeed.

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Dr Fergus Ryan lectures in law at DIT. He is the author of Annotation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,published by Round Hall

By KIERAN ROSE – Irish Times | Tue, Apr 10, 2012 | Link to Irish Times Article

LEGAL OPINION: RECENTLY ENACTED cohabitation laws have important legal and financial implications for cohabiting couples. Given that the 2006 census enumerated 121,800 couples living together outside of marriage, the new laws potentially affect a significant number of families. They offer particular protection to financially vulnerable long-term cohabitants in the wake of relationship breakdown.

The new requirements are laid down mainly in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force on January 1st, 2011. While the Act affords limited rights to “cohabitants”, enhanced legal protection is offered to a special category of long-term cohabitants called “qualified cohabitants”.

A cohabitant is one of two adults living together in an intimate and committed relationship. They may be opposite-sex or same-sex couples but must not be closely related. They may be married to (or in a civil partnership with) other people, but not each other.

Subject to certain conditions (particularly regarding the duration of cohabitation), cohabitants are automatically recognised in law in a limited range of contexts, including domestic-violence protection and wrongful- death suits. In an important break with the legal position prevailing pre-2011, cohabitants may now also enter into legally binding agreements governing their property and financial interests.

An enhanced “redress scheme” applies to “qualified cohabitants”, defined as cohabitants who have lived together for at least five years, or two years if they have had a child together. Where either cohabitant is married, neither cohabitant will be treated as a qualified cohabitant unless the married cohabitant has lived apart from his spouse for four of the previous five years.

Under the redress scheme for qualified cohabitants, a court may make various orders if the parties’ relationship ends. To avail of these orders, however, a qualified cohabitant must demonstrate financial dependence. An applicant with sufficient independent means will likely be denied relief.

Three types of court order are available to financially dependent qualified cohabitants following the end of a relationship. These orders generally must be sought within two years of the relationship ending. The applicant may first seek maintenance (financial support), to be paid either periodically or in a lump sum. The court may also make an order allocating part of a qualified cohabitant’s pension entitlements to the applicant. Finally, the court may reassign property, though only if maintenance and pension adjustment orders would not be sufficient to address the applicant’s needs.

There is no automatic right to redress. Whether and to what extent relief will be granted will depend, in particular, on the needs, resources and other obligations of each party.

A cohabitant has no automatic entitlement to provision on the death of a partner (though cohabitants may provide for each other by will). A surviving qualified cohabitant may, however, apply to court for provision from the deceased’s estate, if proper provision has not otherwise been made for the survivor. Unless the couple were still in a relationship at the time of death, the survivor must demonstrate financial dependence.

Notably, couples may opt out of the qualified cohabitants redress scheme by entering into a written cohabitation agreement, although careful steps are required to ensure such agreements are valid.

The Act does not apply to relationships that ended before January 1st, 2011, although time spent living together prior to that date is counted in determining whether a person is a qualified cohabitant from January 2011 onwards.

Even in respect of qualified cohabitants, the obligations and rights conferred by law are nowhere near as extensive as those applying to either civil partners or spouses. Crucially, redress is predicated on financial dependence, the sole exception being provision from the deceased’s estate where the parties were still a couple at the time of death. Qualified cohabitants with sufficient independent resources will otherwise not qualify for relief, regardless of their contribution to the relationship. Where the qualified cohabitant against whom redress is sought is or was married, moreover, the interests of his spouse or former spouse are prioritised, such that the relief available to the other qualified cohabitant may, in such cases, be quite limited indeed.

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Dr Fergus Ryan lectures in law at DIT. He is the author of Annotation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,published by Round Hall

By Fergus Ryan – Irish Times | Mon, Feb 27, 2012 | Link to Irish Times Article