Cohabitation workshop at Resolution National Conference

Newcastle, England

Saturday 23 April 2016

The Irish position

Keith Walsh, solicitor, keith@kwsols.ie

The Civil Partnership and Rights and Certain Rights and Duties of Cohabitants Act 2010 introduced entirely new rights for cohabitants when it was commenced on the 1st January 2011. Couples who met the criteria were automatically cohabitants but in order to seek relief arising from these rights the cohabitant must apply to the courts and prove:

• that they were in an intimate and committed relationship[1]
• that they were qualified cohabitants[2]
• financial dependency on the other cohabitant and that financial dependence arises from the relationship or the ending of the relationship[3](financial dependency is not required when seeking provision from the estate of a deceased cohabitant where the relationship lasted to the death of the cohabitant[4]).
• it would be just and equitable for the court to make an order for redress in all circumstances[5]

The relevant time limits within which to apply for relief are 2 years from the end of the relationship where cohabitants are both alive[6] or 6 months from the extraction of the grant of representation where one of the cohabitants is deceased[7].

The reliefs available for ‘qualified cohabitants’ are maintenance- both periodic and lump sum, property adjustment orders (but not an order for sale[8]), pension adjustment orders and provision from the estate of a deceased cohabitant.

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’[9]. In deciding whether the couple were cohabitants the court must take into account all the circumstances of the relationship and must have regard to the following: the duration of the relationship, the basis on which the couple live together, the degree of financial dependence of either adult on the other and any agreements in respect of their finances, 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, whether there are one or more dependent children, whether one of the adults cares for and supports the children of the other and the degree to which the adults present themselves to others as a couple[10].

A qualified cohabitant is ‘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 2 years or more where they are the parents of at least one dependent child or five years or more in any other case.[11]

Where financial dependency is a prerequisite for relief (maintenance, property adjustment and pension adjustment orders) then if the applicant has an income and is able to support themselves independently they will not be considered dependent according to Ryan. [12] As he points out this accords with the Law Reform Commission’s view that the purpose of the redress model is to ‘operate as a safety net to address the needs of vulnerable qualified cohabitants on the breakdown of the relationship’.[13] The Commission took the view that not all cohabitants should be entitled to redress and that casual or short-term relationships without interdependency do not require ancillary relief.[14]

Contrast with Scottish and English Schemes

Shortly after the introduction of the 2010 Act Cork academic John Mee succinctly captured how this essential element of financial dependency distinguishes the Irish cohabitant from his Scottish and potential English counterparts:

‘The financial dependency aspect of the Act’s scheme does not, in contrast to the Scottish legislation and the English Law Commission’s proposals, involve looking at how much the claimant has lost, or how much the defendant has gained, as a result of the relationship or its termination.’[15] Mee asserts  that the issue to be proven to establish financial dependency is ‘need of financial support for his or her maintenance, in principle from any source, as a result of the relationship or its termination.’[16]

In determining whether it is just and equitable to make an order in all the circumstances, the court must take into account the following factors[17]:

1. the financial circumstances, needs and obligations of each qualified cohabitants existing as at the date of the application or which are likely to arise in the future
2. the rights and entitlements of any spouse or former spouse
3. the rights and entitlements of any civil partner or former civil partner
4. the rights and entitlements of any dependent child or any child of a previous relationship of either cohabitant
5. 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
6. 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
7. any contributions made by either of them in looking after the home
8. 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 having relinquished or or foregone the opportunity of remunerative activity in order to look after the home
9. any physical or mental disability of the of the qualified cohabitant (seems to suggest only takes into account this factor for the cohabitant seeking redress)
10. 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.

Low take up of new redress by cohabitants since 1st January 2011

As the attached statistics illustrate there has been a very low level of litigation associated with the relatively new Act which is based, in my view, on the lack of interest or knowledge of potential litigants regarding their rights. There is only one reported decision by the Superior Courts in relation to the new rights granted to cohabitants under the 2010 Act and it relates to provision from the estate of a deceased cohabitant and was delivered by Baker J. on the 5th May 2015 in the High Court case of D.C. and D.R. [2015] IEHC  309.