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Legal Opinion: Cohabitation legislation urgently needs information campaign

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