Cohabitation

May 31, 2023

A cohabiting couple is a couple that lives together in an intimate and committed relationship, who are not married to each other. Cohabiting couples can be opposite-sex or same-sex. A cohabiting relationship can continue to be ‘intimate’ even if it is not sexual in nature. Some couples may live together for many years and to all intents and purposes may identify as a married couple, albeit they do not have the formal certificate to prove it. It is important at the outset to note that no matter how long a cohabiting couple have lived together as husband and wife, they will never secure the full rights and entitlements of marriage.

The Civil Partnerships and Certain Rights and Obligations of Cohabitants Act 2010 introduced a Redress Scheme which allows cohabiting couples to obtain a certain limited number of orders from the Court upon Separation and Death. Cohabitation proceedings are held “in camera” which means that they are held in private and there are strict media reporting limits in place. The law in this area is highly complex and consultation with your solicitor is advised.

Qualified Cohabitant

In order to apply to the Court for orders under the 2010 Act you must be a ‘qualified cohabitant’. To be a qualified cohabitant, the Court must be satisfied that:

  1. You lived in “an intimate and committed” relationship with your partner and,
  2. You were financially dependent on your cohabitant and,
  3. You were:
    1. Living together in an intimate and committed relationship for at least 5 years, or
    2. Living together in an intimate and committed relationship for 2 years if you have children together.

The Court will also consider:

  1. the length of the relationship.
  2. contributions of each person to the household,
  3. the degree to which they presented themselves to others as a couple and,
  4. Whether there are children.

Importantly, children of cohabiting parents have the same succession and maintenance rights as children born to married parents.

In addition, in order to avail of the 2010 Act, if one cohabitant was previously married to someone else, they must be divorced or separated or have been living separate and apart from that spouse for two out of the previous three years. The rights of the spouse  will take precedence over the rights of a cohabitant.

If the Court is satisfied that you qualify as a qualified cohabitant then it can make certain orders in relation to property, maintenance and pension matters.

Death

A qualified cohabitant can also apply to the Court for provision out of the estate of a deceased cohabitant. The application must be made within six months of the Grant of Probate issuing or two years from the date of death, whichever is the sooner. The cohabitants cannot have been separated for two years or more before the deceased’s death. The Court may make provision for the surviving cohabitant if it is satisfied that proper provision was not made during the lifetime of the deceased. If the surviving cohabitant is making an application then they must give notice to the personal representatives of the deceased’s and any spouse or civil partner. Any orders made under the 2010 Act in respect of a deceased cohabitant will not affect the legal right share of a surviving spouse.

Time Limits

There are strict time limits for bringing an application under this Act. An application must be brought within two years of separation or death. This is different to divorce and separation in that an application for either can be brought at any time.

If you have moved into your former cohabitants property and you are not formally registered on the title deeds you should act quickly and speak to a solicitor as soon as possible after your separation to ensure you are protected in the best way possible. If you made significant financial contributions to the property over a long period of time you will likely benefit to some extent under the 2010 Act.

If on the other hand, you bought the property jointly and have missed the time limit it is open to you to bring proceedings in equity to sever the joint ownership. It is always worthwhile to consult your solicitor to assess any other possible options available to you.

Taxation

There are very few special taxation benefits available to cohabitants compared to spouses or civil partners. A gift or inheritance taken by a qualified cohabitant under the 2010 Act is exempt from Capital Gains Tax, Gift Tax and Stamp Duty.

It is important to keep in mind if you are in a cohabiting relationship and you die without making a will, your partner has no automatic right to any share of your estate no matter how long you have been together. Even if your partner has provided for you in their will, unless the inheritance is made by way of Court Order under the 2010 Act, cohabiting partners pay Capital Acquisitions Tax at 33% on gifts/inheritance over €16,250. However, if you receive a gift or inheritance from your husband, your wife or your civil partner, you are exempt from Capital Acquisitions Tax.

The important matter to note is that property transfers made under an Order of the Court, pursuant to the Cohabitation Act, are exempt from Capital Taxes so any Agreement made between separating cohabitants and/or their estate should be made in writing and made an Order of the Court to avail of this important exemption.

Cohabitation Agreement

You can of course try to circumvent any possible issues in the future and protect your financial interests by entering into a Cohabitation Agreement. This is a voluntary, signed agreement, which allows you to specify the day-to-day joint financial arrangements of your relationship. You can also specify how you plan to separate your assets should the relationship come to an end. You both need to get independent legal advice for the agreement to be valid. It is important to note that the Court may vary or set aside an agreement or part of an agreement in exceptional circumstances if putting it into effect would cause serious injustice.

Attempting to mediate and negotiate with your former partner, through your respective solicitors, is a beneficial way to ensure that both of you come out of the situation with a settlement that can work for both of you. It avoids the risk and distress of examination by a Court and the uncertainty of a Court decision made in a busy Court schedule.

As always, Wolfe & Co LLP are here to assist you and protect you to the best of our ability. We are experienced in all aspects of family law and are here to assist you through this difficult time.

 

By Aislinn Collins Solicitor

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

May 2023 Wolfe & Co. LLP Solicitors

Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie

Tel: 028-21177, e-mail: info@wolfe.ie