Cohabitants

Background

Until 2010 cohabitation in a medium to long-term relationship had no status under Irish laws. Unless the parties in the relationship were married, they enjoyed no succession, maintenance or property rights other than those that would arise between unrelated strangers.

The law does not recognise common law relationships. The position applied to same-sex couples and couples of the opposite sex.

The Constitution’s protection of the status of marriage was not extended to such persons. On the contrary, the courts held that the failure to give equivalence status to such couples was justifiable under the Constitution.

In the first decade of this century, the European Court of Human Rights held in a number of cases that the failure to accord same-sex couples at least some of the key rights of equivalent heterosexual couples who are married constituted a breach of the Convention.

2010 Legislation

In parallel with the introduction of the civil partnership legislation, a much more modest scheme of protections was introduced for cohabitants. This is potentially controversial as it may impose a particular regime on parties who may, to some extent, have opted out of by choosing not to marry (or become civil partners) where this is an option.

The purpose of the cohabitation legislation is to make provisions for cohabitants who are financially dependent. It provides for applications for maintenance, property and pension adjustment orders and provision from the estate of a deceased cohabitant. The application must be commenced within two years of the termination of the relationship.

The legislation does not create automatic rights. It is not intended to redistribute property or assets in the same way as judicial separation or divorce or their equivalent in civil partnerships. It is meant to provide relief in cases of financial dependency.

Couples may elect to enter their own legally enforceable agreement as an alternative to the regime provided by the legislation. Cohabitation agreements are specifically allowed to regulate the joint property and financial affairs of couples who cohabit.

Qualifying Cohabitants

Cohabitants’ rights under the 2010 legislation only apply to relationships that end after the legislation commences.  The person who alleges a cohabitant relationship bears the onus of proving that it existed.

A cohabitant is one of two adults who live together as a couple in an intimate and committed relationship who are: not related to each other, not within the prohibited degrees of relationship for marriage and not civil partners.

A qualified cohabitant is one who has lived together for at least five years, or a period of two years where there are dependent children of the relationship. The five-year period must be immediately before the time the relationship ends. The relationship may end by reason of death or separation.

When one cohabitant is married, the qualification does not arise until the married cohabitant has lived apart from his or her spouse for four of the five preceding years.

Factors for Qualification

The matter of whether there is or was a cohabitation relationship is one that may only be determined by the courts after the event of an application by a cohabitant. The court has regard to a number of factors, including:

• the duration of the relationship
• whether there are dependent children
• whether one of the adults cares for and supports the children
• the degree to which the adults present themselves as a couple to others
• the basis on which they live together
• the degree of financial dependence of either adult on the other
• any agreement in respect of finances
• nature of financial arrangements, including joint purchase of land, acquisition of property, etc.

An interruption in the period of cohabitation will break continuity. If, however, it is temporary, the parties may be deemed to be continuing to cohabit.

Indicative Circumstances

Cohabitation requires the court to find a quasi-marriage arrangement. It is not enough that parties simply live together as housemates or even as boyfriend and girlfriend. There must be a shared domestic relationship.

The court will consider the extent to which the parties hold themselves as a couple. There may, however, be legitimate reasons why the parties may not hold themselves out as such, such as social consequences.

There must be a degree of sexual intimacy. A platonic relationship is unlikely to be enough. However, the fact that sexual relations have ceased does not mean that cohabiting has ceased.

The claimant partner must show that he or she was being maintained by the other partner before the break up.  Dependence will usually arise because one party has given up work to look after dependents or has otherwise incurred a disadvantage as a result of cohabitation.  It may be a loss of career, pension entitlement, seniority, or accrual of rights or a position in work.

Dependent Children

The existence of dependent children will be a very significant factor. Dependent children are those under 18, or over 18 and under 23 in full-time education. A person who has a physical or mental disability may be dependent, irrespective of age.

The court takes into account the extent to which cohabitants care for and support dependent children. The children concerned must be a child of whom both cohabitants are parents.

Although there is no requirement to take into account non-dependent children, the court considers whether one cohabitant cares for the child of another. It will also consider whether parties have treated children in loco parentis.

Agreement in Place

Parties cohabiting may enter their own agreement and opt out of the legislation. There are certain requirements for a binding agreement. The agreement might expressly or implicitly disapply the statutory scheme. It could simply disapply the scheme and provide nothing more, in which event the status of parties would be similar to that before the act passed.

In order to be an opt-out agreement, certain conditions must be complied with. The agreements in relation to financial matters are only valid if the parties have received independent legal advice, or have received advice together and waived independent legal advice. The agreement must be signed by the parties.

If the formalities are not complied with, the opt-out will be invalid. The court may still have regard to the terms of the arrangement in making an award under the legislation.

Opted-Out or Non-Qualification

Generally, courts cannot vary contractual agreements. For cohabiting partners that do not qualify or who opt out of the legislation, the default common law position applies.

On separation, the cohabitants have no rights against each other’s assets.  The principles of trust law apply in relation to establishing beneficial ownership of assets. See generally other sections in this regard.

The summary process for the resolution of property disputes between spouses is available to cohabit partners.

The 2010 legislation does not make provisions for children of cohabitants.

Court Application Right

Where cohabitants satisfy the following conditions they may, at the end of their relationship, apply to court for certain orders:

• two adults living together
• in an intimate and committed relationship
• not within prohibited degrees relationship
• not married to each other or civil partners of each other
• financially dependent on the other partner arising from the relationship or the ending of the relationship
• living together for two or more years where they are parents of one or more dependent children or five years in other cases

Where the above conditions apply, and one party is financially dependent on the other, the court may make orders for:

• maintenance payments
• transfer of property
• sharing pension
• share in the other party’s estate.

The applications must be made within three years of the end of the relationship. This time limit does not apply in certain circumstances where there are ongoing payments or a cohabitation agreement.

A qualified cohabitant can seek an order for provision out of the deceased cohabitant’s estate. This cannot exceed what a spouse or a civil partner may have been entitled to as a legal right share or on intestacy. This cannot affect the legal right share of a spouse.