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Cohabiting couples must consider financial obligations

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.

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