WHAT ARE YOUR ENTITLEMENTS WHEN A COHABITING COUPLE SPLIT

Q. I broke up with my partner. We were together 5 years and were living together for the last 3 years.  My friends tell me that there is some new law  and that I am in the same position as  if we had married and I have a claim on everything that he owns.  Is this right?

A. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 came into law in Ireland from the 1st January, 2011.    The beginning of the Act deals with the registration of Civil Partnerships for same sex couples; however the act also sets down entitlements that applies to cohabiting couples (either same sex or opposite sex).   A definition of “cohabitant” is set out in the act as “…  one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other”.   The Act furthermore creates a Cohabitant’s Redress Scheme which gives protection at the end of a long-term cohabiting relationship to the party who is economically dependent on the other.  This economic dependency must have arisen because of the relationship.   To avail of this redress scheme the claiming person has to be a Qualified Cohabitant:- the relationship must have lasted at least 5 years (or 2 years where there is a child of the relationship);  the couple must not have married (to each other)  or entered into a Civil Partnership,  the Court will look at all aspects of the relationship to decide whether the couple are “Qualifying Cohabitants”.  The Scheme does not apply where one of the parties is still married to someone else and they have separated from their spouse less than 4 out of the previous 5 years before the cohabitation relationship ends.

To make an application under the Redress Scheme the cohabitation  relationship must have ended or one of the parties must have died within 2 years of the making of the Application.  The dependent party can make an application to Court for a number of reliefs including – maintenance, property adjustment orders, pension adjustment orders and benefit from the estate of a deceased partner.   The Application will be held in private in Family Law Courts.  The Orders are not given automatically and the Court will take a number of factors into consideration when deciding whether to grant an order under this Act including the financial position of both parties, the rights of other parties such as children or former spouses and the contribution made by both either financially or otherwise.

The act also gives legal recognition to Cohabitants’ Agreements which allows anyone planning to live or living with their partner to make a formal arrangement regarding their joint financial affairs.  For Cohabitants’ Agreements to be relied on in Court the parties must have received independent legal advice, contract law requirements apply and it must be in writing and signed by both parties.   If the parties want to avoid the provisions made by the new Act they could enter an Agreement opting out of the Redress Scheme.  If the parties want to only make provisions regarding  their ownership of a property they could sign a Co-ownership Agreement.

The Courts should be seem as a last resort and serious consideration should be given by any couple who decide to live together to take legal advice and/or to enter into an Agreement that best suits their circumstances.  No Agreement should be signed without the benefit of legal advice.  Anyone planning to move in with their partner or living with their partner or who has split from their partner and feels that they are financially dependent on that relationship should seek the assistance of their Solicitor.

Sarah Breslin is a Senior Solicitor with many years experience in Family Law and Litigation matters with Stone Solicitors, a law firm that has been practicing from 14 North Main Street, Wexford, for over 20 years. Stone Solicitors has recently been awarded the Outsource QM Exel gold standard for the second year running under an independent risk management review by Outsource legal consulting. Stone Solicitors can be contacted on 053 9146144 or by e-mail  at info@stonelaw.ie .
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