CIVIL PARTNERSHIP ACT 2009 _ CO-HABITING COUPLES

There has been much publicity about the change in law allowing same sex couples to register their partnerships and acquire marriage-like rights but little media attention about the potentially significant new rights and obligations attaching to co-habiting couples.

The international trend for couples to live together rather than marry is now the norm in Ireland. Up until now couples who co-habited acquired no property, financial or inheritance rights against each other. This has now changed.

The Civil Partnership Act or more correctly The Civil Partnership and Certain Rights and Obligations Act 2010 came into force on the 1st January 2011. This Act now allows “qualifying couples” to make a financial claim against their partners at the end of their relationship, either on death or breakdown. This change in law has the potential to affect hundreds of thousands of people and is likely to give people pause about moving in together or more particularly to continue to cohabit in circumstances where there are difficulties in a relationship.

The Act defines cohabitants as “adults” (whether of the same sex or the opposite sex) who live together as a couple in an “intimate and committed relationship”, but who are not married to each other, civil partners or close family members) qualifying cohabiting couples must have lived together for two years if they have dependent children or five years in any other case.

It is important to note that the new legislation does not automatically entitle any cohabitant on breakdown or death to any specific share or claim of the other persons property or estate, simply the entitlement to seek redress from the Courts. The questions that a Court has to consider in determining whether a cohabiting person is entitled to a share or claim are lengthy and include not only the financial circumstances, means and obligations of each person but also of any former spouses, the duration of the relationship and the degree of commitment to each other. A Court can make a number of financial orders in favour of a claimant including maintenance, property or pension adjustment orders and provision from the estate of the deceased cohabitant. These orders are similar to what a spouse can secure in a Judicial Separation or Divorce but it is anticipated that the financial awards to cohabitants will be less.

Couples who wish to avoid the rights and obligations of this Act can contract out, in other words write up their own agreements, where they can contract effectively out of the Act. The Act provides that in exceptional circumstances the Courts can vary or set aside such agreements in circumstances where their enforceability would cause serious injustice. In order for such agreements to be valid both parties must have received independent legal advice.

Accordingly it is clear that this new legislation has important legal implications for a significant proportion of the population and it emphasises the importance of taking legal advice.

Marie Conroy
Solicitor