Q – My partner has died recently – I had been living with him in his house for the last eight years. He was previously married but divorced and has two adult children from that relationship. He became seriously ill two years ago and I changed from full time to part time work to look after him. He always talked about making a Will but never did. Have I any rights to the house or to any of his money or property?
A – Your situation is a difficult one but sadly not uncommon. Because your partner did not make a Will he is said to have died intestate and under the Succession Act his money and property pass to his next of kin. There is no provision in the Succession Act for cohabiting partners. I am assuming that on his divorce his ex-wife signed off her Succession Act rights and if so his next of kin are his children who will inherit in equal shares. However, the relatively recent Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 may give you some redress. The often used phrase of “common law wife/husband” has given many couples an impression that certain rights or entitlements accrued from their relationship but this is not so. Until the enactment of the Civil Partnership Act, Irish Law did not make any provision for the status of people living together or any financial or property relief following the breakdown or end of their relationship. The purpose of the Act is to provide a scheme to protect an economically dependent party at the end of a long term cohabitating relationship, whether on relationship breakdown or on death. There are no automatic rights or entitlements to relief and each case must be determined on its own circumstances and merits.
To bring a claim you must first fulfil the criteria to be a “qualified cohabitant”. You must prove that you and your late partner were living together as a couple in an intimate and committed relationship for a period of five years or more. If you and your partner had dependent children, then it is only necessary to prove you were living together in a committed relationship for 2 years or more.
On the brief details you have given, you would appear to be a “qualified cohabitant” and if you wish to claim against your partner’s estate you will need to bring an application to Court under the Act. The Act would allow the Court( if it considers it appropriate) to make provision for you from your late partners estate (his money and property) if it is of the opinion that he failed to make adequate or any provision for you in accordance with his means, whether by Will or otherwise.
The Court may make Redress Orders if it is satisfied that you are financially dependent on your deceased partner and that such dependency arose because of the relationship or the ending of the relationship. The Court must consider a range of factors including –
- The financial circumstances, needs and obligations of each qualified cohabitant;
- The rights and entitlements of any spouse, civil partner or former spouse or civil partner;
- The rights and entitlements of any dependent child or any child of a previous relationship of either cohabitant;
- The duration of the relationship, the basis on which the parties entered the relationship and the degree of commitment of the parties to one another;
- Any contributions made by either cohabitant to the relationship, whether financial or otherwise;
- The effect on the earning capacity of each of the cohabitants of the relationship;
- Any mental or physical disability and
- The conduct of each of the cohabitants, if it would be unjust to disregard such conduct.
The Act would also allow the proceedings to be adjourned to assist attempts at reconciliation, mediation and other alternatives to litigation.
If you wish to bring such proceedings, you must do so, (save in exceptional circumstances,) within two years of your late partner’s death.
It is essential you consult a Solicitor immediately with a view to bringing proceedings under the Redress Scheme.
For any cohabiting couples in a similar situation as yours, it is essential that the parties plan for their future and make Wills which properly protect each other and save the surviving cohabitant from the uncertainty, stress and litigation which you now face.
Catherine Stack is a partner in Stone Solicitors, a law firm that has been practicing from 14 North Main Street, Wexford, for the last 22 years. The firm will be relocating on 7th March 2014 to the former National Irish Bank building on the corner of The Bull Ring and North Main Street, Wexford. Stone Solicitors can be contacted on 053 9146144 or by e-mail firstname.lastname@example.org .