Cohabitant / common law husband able to make claim on deceased common law wife /cohabitants estate

By Keith Walsh

Tuesday, 6th October 2015

Filed under: Probate, Separation, Wills, FamilyLaw317, Cohabitants, Civilpartnership, Cohabitant

Guidance from the High Court on cohabitants, qualified cohabitants, proper provision under section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010

Keith Walsh 2nd October 2015

Guidance from the High Court in relation to Section 194 of the Civil Partnerhip and Certain Rights and Obligations of Cohabitants Act 2010

The recent decision of Baker J. in the High Court case of D.C. and D.R. [2015] IEHC 309 delivered on the 5th May 2015 is useful to both family law and probate law practitioners. It concerns the application of section 194(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (the 2010 Act) which came into force on the 1st January 2011.

Unlike marriage or civil partnership there is no registration for cohabitants, the law applies to cohabitants or qualified cohabitants automatically although there is a necessity to apply to the courts for redress. Over 120,000 people in Ireland were living as cohabiting couple in 2006 according to figures supplied by Fergus Ryan in his commentary on the 2010 Act.

Section 194(1) permits a qualified cohabitant to apply for financial provision from the estate of the deceased cohabitant. In this case the relationship lasted until the death of the cohabitant but it is also possible, in more limited circumstances as set out in section 194(2) to seek provision from the estate of the other where the relationship had ended prior to one of the cohabitants’ deaths.

The facts

The Plaintiff DR (the surviving cohabitant) claimed to be in an intimate cohabiting relationship with JC (the deceased) who died intestate on the 7th August 2014. He had been in a previous marriage which was annulled and he had no children. The deceased never married and had no children.

He sought provision from her estate. The Defendant DC (the personal representative) was one of JC’s three brothers and her personal representative having extracted Letters of Administration on the 3rd December 2014. She had no sisters.

The surviving cohabitant is 64, a farmer and horse trainer. The deceased was 69 when she died and worked as a school secretary. They met in 1994 and the surviving cohabitant’s case was that they became intimate in 1995, entered into a committed relationship after 1996 when the deceased’s mother passed away. The deceased inherited land from her mother which was sold in 2005 and she received €3.1 million after tax. From 1996-2004 he lived with the deceased for 2 or 3 nights a week at her home at K House. On the day his mother died in 2004 he moved in with the deceased and lived there until the deceased passed away. They shared an interest in horses and the surviving cohabitant was an acknowledged expert. The deceased was diagnosed with cancer in 2009 and recovered but the disease returned in 2013. The surviving cohabitant looked after her during her illness and it was acknowledged that he had done his best for her.

The judgement

Baker J. examined the facts, then applied the statutory criteria in section 172 to establish whether or not the surviving cohabitant was a qualified cohabitant. Once this was established she then moved on to deal with the appropriate provision to be made by the court, if any and she applied the statutory criteria in section 194 and 173. She also considered whether section 117 caselaw and jurisprudence arising from judicial separation and divorce caselaw was applicable.

The legislative framework: what constitutes cohabitation?

Baker J. considered whether the surviving cohabitant had established that he was a cohabitant within the meaning of s. 172 of the Act. In this case he must prove that he lived together with the deceased in “an intimate and committed relationship”.

172.— (1) For the purposes of this Part, a cohabitant is one of 2 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.

Section 172 (2) sets out the factors to be considered: -

“In determining whether or not 2 adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following:

(a) the duration of the relationship;

(b) the basis on which the couple live together;

(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;

(e) whether there are one or more dependent children;

(f) whether one of the adults cares for and supports the children of the other; and

(g) the degree to which the adults present themselves to others as a couple.”

The court must take into account all the circumstances and (a)-(g) above is not an exhaustive list.

Section 172(5) defines qualified cohabitant as:

(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—

(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and

b) of 5 years or more, in any other case.

Facts in dispute

The facts in dispute in this case related to whether the cohabitants in this case enjoyed an ‘intimate friendship’ or merely a friendship and there was also disagreement between witnesses as to whether the couple lived together.

Useful list of facts

Facts adduced on behalf of the Plaintiff to support an intimate relationship

The Plaintiff’s own evidence, shared a double bed, always breakfasted together, ate their meals out together every night
Shared interests – ponies
Attended 40 weddings together as a couple
Openly stayed together in same hotel including at wedding of one of deceased nephews
Lead role as host of parties in the deceased’s house
Christmas, birthday, Valentine cards sent by the deceased to the surviving cohabitant where he is described as ‘my dear’ or ‘dearest’ and love and friendship is expressed
In phone contact every 2 hours
Gift of land rover by deceased
Doctors engaged with surviving cohabitant in deceased final illness
Deceased spoke of marriage and Baker J. held this discussion was ‘an indicator of the strength and nature of their bond’.
Evidence that relationship was sexual until close to the end of the life of the deceased.
Known as a couple by friends who gave evidence
Surviving cohabitant ‘would lock gate after him [the guest] when he left’ according to local vet but they paid separately for their own veterinary fees for their animals.

Facts adduced on behalf of the Defendant to rebut an intimate relationship

She was claiming social welfare (living alone) allowance and she referred to herself as single on the documents submitted to Social Welfare. There was an option to select ‘cohabitating’.
A third party and not the alleged cohabitant suggested marriage (in this case supposedly a priest- who in evidence denied that he suggested marriage)
No trace of a man in the house, no male toiletries
Unhelpful facts – never asked the parties whether they were in an intimate relationship
Never met the surviving cohabitant in the deceased’s house
No special or intimate expressions of affection

Baker J. applied the facts of this case to the law as follows:

Were the parties living together for 5 years or more?
Baker J. accepted the evidence of the surviving cohabitant that he took up full time permanent residence in the home of the deceased on the day his mother died in 2004 for the following reasons:

The surviving cohabitant resided with his mother for approximately half of every week in his old family home until his mother died. He did this to care for her in her old age, and he shared that care with his brother.
He never made provision for his own accommodation needs outside of this arrangement, and Baker J. attributed this:

‘to arise from the fact that he commenced a committed and long-term relationship with the deceased some ten years earlier in 1995 or 1996. Some evidence was given in the course of the trial that the plaintiff left little or, indeed in the case of the evidence from one brothers of the deceased, no personal effects at all at K House,[the deceased’s family home] but the plaintiff himself in the course of cross examination, and in his affidavit evidence, pointed to the fact that much of his clothing was in drawers which were not searched and not in the wardrobe of which photographs were adduced in evidence, and that he did keep personal toiletries in the bathroom. He struck me as a man of modest and minimal material needs, and I accept that he kept his relatively few personal effects at the house. I also accept that they came to permanently reside together in 2004.’

Was the relationship committed and intimate?
Baker J. attributed particular significance to the surviving cohabitant’s plaintiff’s evidence that he went to reside with the deceased on the day his mother died. She stated:

‘that suggests quite clearly that the reason he and she did not live together on a full time basis before then was because of his arrangement with his brother that they would jointly share the care of their widowed mother. This is also consistent with the scheme of the Act which entitles the court to look inter alia to the duration of the relationship and the “basis” in which the couple lived together and I consider it improbable that this couple discussed their living arrangements and agreed to move to live together on the day the plaintiff’s mother died. It is much more probable that they had for a number of years wanted to share their living arrangements but the care of the plaintiff’s elderly mother prevented this happening. In that regard I consider the duration of this relationship between the plaintiff and the deceased was 19 years and that the relationship commenced in 1995 or thereabouts in the context of their shared interest in horses, and that they became committed to one another shortly thereafter.

The next question that must be determined as a matter of fact is whether this couple was or had been at some stage in an intimate and committed relationship. The Act offers no assistance as to what is meant by an intimate relationship, but having regard to s. 172 (3) it is clear that a relationship must have been at some point in time a sexual relationship for intimacy to be found. The intimacy that is intended is a sexual intimacy and not merely the intimacy of close friendship.’

Baker J. comments that the factors set out in section 172(2) relate to the degree of commitment of the couple rather than the degree of intimacy.

Section 172(3) states that for the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature. This indicates that in order to be an intimate relationship it must, at some point, have been sexual in nature.

Baker J. accepted the surviving cohabitant’s evidence that he and the deceased started an intimate sexual relationship in 1995 and this continued until shortly before the deceased death.

The perspective and state of mind of the deceased

Baker J. took into account evidence from other witnesses confirming the surviving cohabitant was in the deceased bedroom when they visited the house and the honourable Judge took this to mean that is was unlikely he would have been in the bedroom of the deceased had they not been in an intimate and committed relationship given the deceased’s private nature.

The age and upbringing of the deceased may also have indicated that she would not publicise the nature of the relationship to the neighbourhood or to her family. Baker J. also took into consideration that the deceased kept various aspects of her life separate from her family and she may not have wanted to upset her siblings by informing them of her, sexual relationship with the surviving cohabitant based on her shared religious beliefs, and shared social and interpersonal values with her brothers. Baker J. held that it was possible that her brothers who lived a distance away may not have been aware of the living arrangements of their sister.

Another factor mentioned by Baker J. in relation to forming the opinion that the couple had a very close and intimate relationship was that they exchanged tokens of their relationship on a frequent and appropriate basis such as Valentine cards.

Baker J. attributed weight to the evidence of a friend of the couple’s, who was a restaurant manager and who ‘did not think the deceased, who was after all a woman in her late 60’s, would have permitted a man to assist in the intimate and personal task of dressing if he had been merely a friend.’

The basis on which the couple live together S.172(b)
Baker J. clarified her view of the statutory test of the “basis” on which a couple live together. She states this is a broad test and encompasses much more than financial or property arrangements which are specifically dealt with in subs. (c) and (d) of s. 172 (2),

The basis of a relationship involves a number of interconnected elements such as:

the degree of shared activities that persons enjoy, such as shared meals, especially evening meals and breakfast, shared activities, shared division of household chores and shared holidays.

In this case she found that the couple did live together in a committed relationship which was illustrated by the degree of contact that they had with one another on day-to-day basis which was very frequent. The couple phoned and exchanged text messages with one another very frequently during the normal working day. Baker J. held that they shared a joint interest which they both enjoyed and both spent time on the other’s farmland for all to see.

172(1) (g) Presenting as a couple
Baker J. when examining this factor stated ‘while expressions of physical affection in public might in some cases be a mode by which a couple show their intimate and committed relationship to the world, this is not always the chosen means by which a couple present themselves. Some of the witnesses described the couple as being physically affectionate towards one another in company, and others said they were not. It can easily be the case that some physical expressions of friendship such as hugging are found even when a relationship has no sexual element. I find that the evidence on balance points to the fact that this couple did present themselves to the world as a couple in a sexual and intimate relationship, and one must recall in that context that both the plaintiff and the deceased were in their 60’s and the deceased was almost 70 when she died. Even deeply committed and devoted married couples show relatively little obvious physical affection in public and I consider that this couple was no different from any other in that regard.’

The learned Judge took particular note of the fact that the friends of the deceased regarded her and the surviving cohabitant as a couple, the witnesses called by the surviving cohabitant described the relationship as that of a “normal couple”. None of them regarded the relationship as remarkable in any way. Some of the witnesses indeed considered the couple to be married. They were said to behave ‘like any other married couple who got on well with one another and spent a lot of time together.’ Baker J. went on to state

‘The law recognises a fact of modern life, namely that a couple can present themselves to the world as cohabiting partners, or indeed as partners who do not cohabit, when they are not married or when they do not intend to marry. The relationship in this case was in my view one in which the couple presented themselves to the world as a couple, albeit I accept that the deceased did not for her own reasons present the full nature of her relationship with the plaintiff to her immediate family. I have already explained what I believe to be the reasons for this’.

172(2)(c) and (d) Financial dependence and interdependence [‘relationship cost’]
When examining this factor Baker J. applied the following facts:

There was little financial interdependence in the early years of the relationship, and in certain aspects of their relationship they continued to maintain separate financial arrangements, such that for example the deceased paid all household utilities and other bills, they had an informal arrangement for buying food and groceries for the household, but each of them separately paid their veterinary and other similar bills.

Once the deceased gained her inheritance the degree of financial interdependence changed. Both enjoyed a fuller life due to the resources of the deceased. They played golf together and joined a health club, neither activity could the surviving cohabitant have afforded on his own income.

As neither was interested in cooking they ate their main meal in a restaurant almost every evening. This was outside the income resources of the plaintiff but this is how the deceased chose to live with her chosen companion and is how this couple in their joint lives chose to enjoy the fruits of the inheritance from the deceased’s mother. Baker J. held that the deceased wished to have the company of the plaintiff, and that the “relationship cost” meant that it was she who paid for these extras, which she wished to enjoy and would best enjoy in his company. This is a financial interdependence, albeit it is not a dependence for the basics of life, and the financial interdependence was one that evolved in the context of a significant discrepancy between the income and financial resources of each of the parties.

Although they kept many of their finances separate, this was due to the couple’s respective attitudes to money, and as a result of the vast difference between them in financial terms. Baker J. stated that:

‘the relationship was no less committed by reason of the absence of financial interdependence, and agreed financial interdependence is to be found in the fact that the deceased paid for holidays, most if not all social events and meals out, and new and expensive motor vehicles for each of them. This was, as I have said, the “relationship cost” which the deceased in my view was happy to incur.

The degree of financial interdependence as opposed to financial dependence may of course be relevant when a court comes to consider whether and what provision ought to be made from the estate of the deceased person on an application by his or her cohabitant. I find as a matter of fact that this couple were not financially dependent for the basics of life, but that a degree of financial dependence had come to evolve between them with regard to certain elements of their personal and social spending. The degree of this was such as to suggest a relationship of shared commitment.’

Other circumstances of the relationship- the funeral arrangements or ‘rituals of death’ as indicative of the role

the funeral arrangements were made by the surviving cohabitant.
he remained during the wake and was at the head of the coffin at the removal ceremony to greet mourners
he was with the coffin alone before it was closed
he was in the front row of the church and walked directly behind the hearse
he carried the coffin at the beginning of the walk from the church to the graveyard and at the end. Her brothers did likewise.
Baker J. held

‘that the funeral arrangements acknowledge the degree of commitment between the deceased and the plaintiff and the importance of that relationship in her life. The rituals around death are important in Ireland and are an important way by which a person’s relationships are recognised in the community. The funeral arrangements often give rise to difficulty when married couples are divorced or informally separated and when the deceased was cohabiting or remarried. This is because as a society we place particular importance on the ritual, and positioning in the ritual of members of the family of a deceased and of their friends and loved ones.’

General comments on inherited property and property acquired before a relationship commenced

Baker J. stated that inherited property, and property acquired before the relationship commenced and independently of any direct or indirect contribution of the other must be treated differently to property acquired in the course of the relationship whether in joint or sole names. This does not mean inherited property is automatically excluded from the ‘pot’ but it does mean it is not immediately included and this is more so when there are enough other assets to make provision.

Conclusion on cohabitation- the test to be applied
Baker J. adopted an holistic approach to the various elements of the cohabitants’ relationship and the public presentation of that relationship. This involved viewing the relationship as a whole and in the context of the social mores and the age of the participants in the relationship. She did not consider that the fact that the brothers of the deceased were unaware of the intimate element of the relationship to be a determining factor. Their knowledge must be seen in the context of their relationship with their sister, and with their wider family social mores and in particular with the fact that they regarded emotional matters as private.

Baker J. in applying the 2010 Act viewed the seven identified factors in s. 172(2) not as conclusive as to the nature of the relationship but as indicative of that relationship and how it is to be properly characterised. She set out as the test for cohabitation to be adopted by the Court is:

‘to determine whether a reasonable person who knew the couple would have regarded them as living together in a committed and intimate relationship, and that the individual and many factors in how they are perceived must be taken into account ‘

She held that the surviving cohabitant was a qualified cohabitant and had lived with the deceased in an intimate and committed relationship since his mother’s death in 2004.

PROVISION FROM THE ESTATE

The Court has a discretion regarding the provision it can make based on the application of a qualified cohabitant. This discretion must be limited by section 194(3), 193(4) and 193(7).

(3) The court may by order make the provision for the applicant that the court considers appropriate having regard to the rights of any other person having an interest in the matter, if the court is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased for any reason other than conduct by the applicant that, in the opinion of the court, it would in all the circumstances be unjust to disregard.

(4) In considering whether to make an order under this section, the court shall have regard to all the circumstances of the case, including-

(a) an order made under section 173 (6), 174 , 175 or 187 in favour of the applicant,

(b) a devise or bequest made by the deceased in favour of the applicant,

(7) The total value for the applicant of the provision made by an order referred to in subsection (4) (a) on the date on which that order was made and an order made under this section shall not exceed any share of the applicant in the estate of the deceased qualified cohabitant to which the applicant would have been entitled if the qualified cohabitants had been spouses or civil partners of each other.

_________________________________

Baker J. interpreted section 193(4)(d) as importing a degree of objectivity in deciding whether or not to make provision for the surviving cohabitant.

Baker J. noted that section 194(7) of the 2010 states that the total provision from the estate of a deceased cohabitant exceed the share to which the person would have been entitled if they had been married or in a civil partnership. On intestacy in this case a surviving spouse would have been entitled to 100 % of the estate and if there had been a will then the legal right share of a spouse would have been 50 % of the estate. Baker J. commented that she must respect the right of the deceased not to have married and to have died intestate and she stated that this informed her decision to make provision for the surviving cohabitant from part of the estate. She also held that she must weight up the financial needs and demands of the surviving cohabitant against the others who would benefit from the estate of the deceased- her brothers. While financial dependence is not a prerequisite to entitlement to relief for a qualified cohabitant from the estate, even where financial dependence is not shown, the level of financial need must inform the court of the extent of the provision the court would make, if any, and the degree to which a court would displace a beneficiary’s interest.

Usefulness of case law arising from section 117 cases, judicial separation and divorce cases when determining ‘proper provision’

Baker J. held that the 2010 Act was part of ‘the nexus’ of family and succession legislation and that some assistance could be derived from section 117 cases as it too deals with ‘proper provision’ although the test in section 194 of the 2010 Act is a different one. She distinguished the judgement of Kearns J. in X.C. v R.T. (Succession: Proper provision). In X.C. Kearns J. found that financially independent adult children must discharge ‘a relatively high onus’ in order to succeed under section 117.She. held that a qualified cohabitant had no such high onus to discharge.

She did not believe that much assistance could be offered from the jurisprudence arising from cases arising from judicial separation or divorce cases as the decline in existing living standards arising from a judicial separation or divorce is not a factor following the death of a cohabitant.

Reward for good behaviour

Baker J. held that section 173(3)(j) mandated the court to take account of the conduct of each of the cohabitants if the court was of the opinion that it would be unjust to disregard it. She stated that this applied not just to bad behaviour but also to conduct that has benefited the other cohabitant and this may overlap with 173(3)(f) which deals with contributions to welfare and financial resources. She considered that she must take account of the attention paid by the surviving cohabitant to the deceased in her last illness and this good behaviour ‘positively supports the application of the plaintiff’.

Conclusion on provision- weighing up the factors

Degree of financial dependence not essential for provision

Baker J. held that while s. 172(2)(e) required the court to look to the degree of financial dependence for the purpose of ascertaining whether a couple are cohabiting, such financial dependence is not essential in the case of a claim for provision from an estate. She held this to mean that in a case where relatively little financial dependence or interdependence can be shown, the court may still make provision for a surviving partner provided the court is satisfied that the lack of financial interdependence or dependence did not signify a lack of commitment, and in the light of the provisions of section 173(3).

Baker J. noted that Section 197 of the Act provided that

‘each of the qualified cohabitants and ipso facto the personal representative of a deceased cohabitant, shall give to the other particulars of his or her property or income that may be reasonably required for the purposes of the proceedings. The court must accordingly look not merely to the value of an estate but also to the other income and financial resources of an applicant who seeks provision.’

She also commented that

‘It is noteworthy that there is no requirement in the legislation that an applicant seeking relief under the section show that he or she was financially dependent on the deceased’. She went on to say that while it is the case that provision may be made under section 194 even when financial dependence is not shown, the degree of financial needs must inform

The extent of provision that the court will make, if any.
The extent to which the court will displace an interest of a beneficiary

Baker J. took account of the following individual factors:,

The duration of the relationship: the deceased and the plaintiff were in a committed and intimate relationship for 20 years or thereabouts, they were cohabiting or de facto cohabiting for almost the entire of that period, since the mother of the deceased died.

the basis on which the couple lived together they enjoyed leisure pursuits together, he was closely involved in her day to day life, and in particular in those past-times and activities which gave her most pleasure, primarily the training and showing of ponies. Baker J. held that the deceased and the surviving cohabitant each made substantial and important contributions to the welfare of the other during the currency of their relationship. Baker J. said

‘Their relationship was to an outside observer akin to a marriage. but it would not be appropriate for me to award him the entire estate for the reasons identified, including the fact that they chose not to marry, that they kept some of their finances separate, that the bulk of the estate consists of assets inherited by the deceased, and that the plaintiff has income and real property of his own.’

the degree of financial dependence; a degree of financial dependence arose by virtue of the significant discrepancy between the surviving cohabitant’s income and financial resources and those of the deceased. His gross income on an annual basis was €45,000, less expenses and tax which left him a very small income of some €15,000 per annum. His assets did not produce any significant income.

the degree of companionship and commitment; Baker J. considered that the degree of companionship and commitment that the surviving cohabitant and the deceased had to one another lead to their enjoyment of a very full social life, and she held that to deprive the surviving cohabitant not merely of the company of his long term cohabitant, but also of some of those activities which gave him pleasure, such as membership of a sports club, membership of a golf club, meals out and holidays, while they might not be as enjoyable for him without her company, are still activities from which he can be expected to continue to derive pleasure, and which it would now in the view of Baker J. be unreasonable to expect him to have to forego merely for absence of resources.

Baker J. held that the income of the plaintiff was not sufficient for his needs.

There were no other persons in respect of whom the deceased had any obligation to provide financially. Baker J. held that the interests of the beneficiaries who will succeed on her death intestate may best be achieved by making provision for the surviving cohabitant of less than the entire estate, leaving the balance to her brothers.

Baker J. held that the surviving cohabitant:

‘was or became dependent upon the deceased for his accommodation needs. I accept that the legislation does not require actual dependence or financial dependence to be shown, but such dependence must be a factor in considering what provision ought to be made for him. I consider provision may be made for his accommodation needs by directing that there be vested in him the premises at 1 The Crescent together with the contents of that property. This house was for a long number of years perhaps jokingly or perhaps with some degree of banter referred to as “D’s house”, and I expect that he will derive some pleasure in living there and that it is suitable for his needs. I am of the view having heard him in evidence that while he enjoyed living in the larger detached house in a country setting with substantial gardens, I do not consider that the plaintiff would wish to reside there alone. I also consider that that house has particular emotional importance for the other members of the C family and that due respect and consideration can be given to the fact that it was inherited by the deceased from her mother, by not directing that that house be vested in the plaintiff.

Provision can be made for the plaintiff out of the estate of the deceased other than by awarding him the entire of her assets, partly because of the value of the estate and because the estate comprises in the main of real property, some of which is income producing. I consider that I may properly respect the interests of the brothers of the deceased by awarding them the balance of the estate and this also takes account of the fact that the assets of the deceased could broadly be speaking be said to be inherited.’

The surviving cohabitant’s financial situation

He owned an inherited farm, which produced a small income. Baker J. noted his age and the impossibility of him now taking up another form of employment or of turning his own farm to provide more income. She considered that he has long since foregone the possibility of making investments for himself or of being in a position to purchase a house in which he might live, and that this difficulty has arisen because he was persuaded by the deceased to live with her and not to build or buy a home for himself.

It would be unreasonable to suggest that he might now sell his farm. The farm was valued at €1.446 million to include outhouses and yard but there was no dwelling house.

Intention of the deceased to provide for the surviving cohabitant

Baker J. held that the deceased ‘undoubtedly intended to make provision for the plaintiff’. A document setting out her testamentary wishes and dated 2013, while it did not have testamentary force or effect, should not to be ignored according to Baker J and she said this especially in the light of 173(3) and considered that it was just and equitable to have regard to her wishes. ‘The provision that I mandate now follows to a large extent these wishes, and this fact supports my views, but of itself that document provides no more than one of the many factors guiding my discretion.’

The result

The surviving cohabitant was granted provision of approximately 45% of the estate. This 45 % was to be achieved by vesting in him the two investment properties and their contents. The family home of the deceased cohabitant remained with her brothers. On the reason for this percentage Baker J. stated

‘The percentage arose more from the value of the separate assets and because I consider it to be possible and proper to make provision by a distribution of real property in specie. A greater or less percentage might be appropriate in another case, and I do not regard that the legislation mandates or permits of a rule or even a rule of thumb that directs a particular percentage, or range.’

The most important factors underlying the provision allocated were provision of accommodation and income to meet the surviving cohabitant’s needs. Baker J. also took into account that the surviving cohabitant did not have a pension which was a future need, and it was now too late for him to make his own pension provision.

2nd October 2015

Keith Walsh

keith@kwsols.ie

Appendix

194.— (1) A qualified cohabitant may, after the death of his or her cohabitant but not more than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant’s estate, apply for an order under this section for provision out of the net estate.

(2) Notwithstanding subsection (1), a qualified cohabitant shall not apply for an order under this section where the relationship concerned ended 2 years or more before the death of the deceased, unless the applicant—

(a) was in receipt of periodical payments from the deceased, whether under an order made under section 175 or pursuant to a cohabitants’ agreement or otherwise,

(b) had, not later than 2 years after that relationship ended, made an application for an order under section 174 , 175or 187 and either—

(i) the proceedings were pending at the time of the death, or

(ii) any such order made by the court had not yet been executed,

(c) had, not later than 2 years after the relationship ended, made an application for an order under section 174 , 175 or187 , the order was made, an application under section 173 (6) was subsequently made in respect of that order and either—

(i) the proceedings in respect of that application were pending at the time of the death, or

(ii) any such order made by the court under section 173 (6) in favour of the qualified cohabitant who is the applicant under this section had not yet been executed.

(4) In considering whether to make an order under this section, the court shall have regard to all the circumstances of the case, including—

(a) an order made under section 173 (6), 174 , 175 or 187 in favour of the applicant,

(b) a devise or bequest made by the deceased in favour of the applicant,

(d) the factors set out in section 173 (3).

(5) The court shall not make an order under this section where the relationship concerned ended before the death of the deceased and—

(a) the court is not satisfied that the applicant is financially dependent on the deceased within the meaning of section 173 (2), or

(b) the applicant has married or registered in a civil partnership, or in a legal relationship of a class that is the subject of an order under section 5 .

(6) The applicant shall give notice of an application under this section to the personal representative of the deceased, any spouse or civil partner of the deceased and to any other persons that the court may direct and, in deciding whether to make the order and in determining the provisions of the order, the court shall have regard to any representations made by any of those persons.

(8) If the qualified cohabitant does not notify the personal representative as required by subsection (6), the personal representative may distribute the assets of the deceased qualified cohabitant or any part of them amongst the persons entitled to them and is not liable to the qualified cohabitant for that distribution.

(9) Nothing in this section prejudices the rights of the qualified cohabitant to follow assets into the hands of a person who has received them.

(10) An order under this section shall not affect the legal right of a surviving spouse.

(11) For the purposes of this section, “ net estate ”, with respect to the estate of a person, means the estate that remains after provision for the satisfaction of—

(a) other liabilities of the estate having priority over the rights referred to in paragraphs (b) and (c),

(b) any rights, under the Succession Act 1965 , of any surviving spouse of the person, and

Under s.172(1) a cohabitant is defined as:

one of 2 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.

Section 172(5) defines qualified cohabitant as:

(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and

b) of 5 years or more, in any other case.

Section 173

173.— (1) A qualified cohabitant may, subject to any agreement under section 202 , apply to the court, on notice to the other cohabitant, for an order under sections 174 , 175 and 187 or any of them.

(2) If the qualified cohabitant satisfies the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances, make the order concerned.

(3) In determining whether or not it is just and equitable to make an order in all the circumstances, the court shall have regard to—

(a) the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future,

(b) subject to subsection (5), the rights and entitlements of any spouse or former spouse,

(d) the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant,

(e) the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another,

(f) the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other,

(g) any contributions made by either of them in looking after the home,

(h) the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home,

(i) any physical or mental disability of the qualified cohabitant, and

(j) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.