Update on the law for cohabitants – the rights and entitlements of non married cohabitants

19th September 2017

 

 

 

 

Keith Walsh

8 St. Agnes Road,  Crumlin Village, Dublin 12, D12 VR64

Consulting rooms, Pembroke Hall, 38/39 Fitzwilliam Square, Dublin 2.

Tel:   00 353 1 455 4723         keith@kwsols.ie

W:     www.kwsols.ie

Introduction

The commencement of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010  on the 1st January 2011 has not resulted in even a trickle of new cases troubling the Circuit Family Courts. 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. Over 10 years ago 120,000 people were living as cohabiting couples and it is likely the new census will show a further increase in these figures.

In this paper I will update you on recent developments as follows:

Backround statistics

The basics – who is a cohabitant, what is a qualified cohabitant

Changes to the rights and duties of cohabitants following the part commencement of the Children and Family Relationships Act 2015

Caselaw – a detailed examination of the judgement of Baker J. in the High Court case of D.C. v D.R. delivered on the 5th May 2015 and a discussion of the judgement of Horgan P. sitting as a Circuit Court case in the unreported Circuit Family Court judgement of 12th January 2015

Examination of the diverse time limits for actions concerning cohabitants

Backround statistics

Legal Aid Board statistics based on certificates issued nationwide:

Year                cohabitant relief certs  - v-       total Circuit Court certs issued

2013:                           29                                            2,104
2014:                           60                                            2,499
2015:                           65                                            2,693

Dublin Circuit Family Court statistics based on civil bills issued 2011-2015

The BASICS

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]:

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

the rights and entitlements of any spouse or former spouse

the rights and entitlements of any civil partner or former civil partner

the rights and entitlements of any dependent child or any chi9ld of a previous relationship of either cohabitant

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

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

any contributions made by either of them in looking after the home

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

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)

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.

Changes to the rights and duties of cohabitants following the part commencement of the Children and Family Relationships Act 2015

One of the principal criticisms of the 2010 Act was its failure to deal with legal issues relating to children of cohabitants in the Act. It was hoped that the Child and Family Relationships Act would remedy this omission. The principal changes for cohabitants are as follows:

New rights to Guardianship

Where the cohabitant is the father of the child and has lived with the mother for more than 12 consecutive months he will be appointed guardian if he can prove this period of cohabitation

This new right is inserted into section 2(4A) of the Guardianship of Infants Act 1964 by section 43(c) of the 2015 Act. If the father and mother of the child concerned have not married each other, and have been cohabitants for not less than 12 consecutive months occurring after 18th January 2015 (the date on which this subsection commenced) which must include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and father have lived with the child then the cohabitant will be considered a ‘father’ of the child. But in order to formalise the guardianship the cohabitant must prove to the Court that he has lived with the mother for the requisite period. Either cohabitant can apply for a declaration in the positive or in the negative. If the Court is satisfied on the balance of probabilities that the residence criteria is fulfilled it must make the order (section 6F of the 1964 Act as inserted by section 49 of the 2015 Act).

Where the cohabitant is not the father but has been a cohabitant of a parent of the child for over 3 years and has shared day to day care with that parent for a period of more than 2 years then he or she may apply for guardianship

This new right is inserted into section 6C of the Guardianship of Infants Act 1964 by section 49 of the 2015 Act. A cohabitant can apply for guardianship where he or she is over the age of 18 years and on the date of the application, he or she has been for over 3 years a cohabitant of, a parent of the child, and has shared with that parent responsibility for the child’s day-to-day care for a period of more than 2 years.

The Court cannot appoint a guardian under this section without the consent of each guardian of the child, and the applicant concerned but the court may make an order dispensing with the consent of a guardian of the child, if it is satisfied that the consent is unreasonably withheld and that it is in the best interests of the child to make such an order. In deciding whether or not to make an order under this section, the court shall—

(a) ensure that the child concerned, to the extent possible given his or her age and understanding, has the opportunity to make his or her views on the matter known, and have regard to those views, and

(b) have regard to the number of persons who are guardians of the child concerned, and the degree to which those persons are involved in the upbringing of the child.

The rights and responsibilities of a guardian appointed in this manner may be limited by the Court where one or both of the parents of the child are still living. The Court must set out which of the following list of rights and responsibilities of guardianship from the list below which it will grant the guardian:

(a) to decide on the child’s place of residence;

(b) to make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing;

(c) to decide with whom the child is to live;

(d) to consent to medical, dental and other health related treatment for the child, in respect of which a guardian’s consent is required;

(e) under an enactment specified in subsection (12) (the most releveant of which is regarding application for passport);

(f) to place the child for adoption, and consent to the adoption of the child, under the Adoption Act 2010.

The factors the Court must take into account when deciding the extent of the guardianship rights and responsibilities to bestow on the guardian are

(a) the relationship between the child concerned and the person appointed as guardian of the child, and

(b) the best interests of the child.

There are other opportunities for cohabitants to apply for guardianship under the 1964 Act as before and as inserted by the 2015 Act  but as these are not based as their status as cohabitants but rather as the natural father or from the fact of being in loco parentis and so are not dealt with in this paper.

New rights to custody

Where the cohabitant is not the father but has been a cohabitant of a parent of the child for over 3 years and has shared day to day care with that parent for a period of more than 2 years then he or she may apply for custody [a relative of the child is also granted this right as is a person who has for more than 12 months been in loco parentis to the child and where no parent or guardian is available]

This new right is inserted into section 11E of the Guardianship of Infants Act 1964 by section 57 of the 2015 Act. The court cannot make an order for custody without the consent of each guardian of the child but may dispense with the consent of a guardian if satisfied it is in the best interests of the child to do so. The court may grant custody of a child to the child’s parent and the new guardian jointly and, in doing so, must:

(a) where these are not agreed as between the person and the parent of the child, specify the residential arrangements that are to apply in respect of the child, and

(b) where the residential arrangements that are to apply in respect of the child provide that, for any period, the child will not reside with one of his or her parents, specify the contact (if any) that is to take place between the child and that parent during that period

3.         A new obligation for maintenance for cohabitants

A Cohabitant may be made to pay maintenance for the child of his or her cohabitant where they are not the parent of the child but have been appointed a guardian by the Court

A cohabitant of a person who is a parent of or in loco parentis to a dependent child under 18 in circumstances where the cohabitant is not the parent of the child and is a guardian of the child appointed pursuant to section 6C of the Guardianship of Infants Act, 1964 as amended can be ordered by the Court to pay maintenance for the child pursuant to a new section 5B as inserted into the Family Law (Maintenance of Spouses and Children) Act 1976 by section 172 of the 2015 Act. A new section 196A of the 2010 Act permits the Court when dealing with other matters involving the 2010 Act to also deal with this issue. There is no such provision in relation to the other new rights above in relation to guardianship and custody.

The Court must take into account the income the income, earning capacity (if any), property and other financial resources of the cohabitant, the maintenance applicant,  the child, and any other dependent children of the maintenance applicant or the cohabitant, including income or benefits to which the maintenance applicant, the cohabitant, the child or such other dependent children are entitled by or under statute with the exception of a benefit or allowance or any increase in such benefit or allowance in respect of the child or other dependent children granted to either parent of any such children, and the financial and other responsibilities of the maintenance applicant and the cohabitant concerned towards (i) a spouse, civil partner or cohabitant,(ii) the child, and (iii) any other dependent children of the maintenance applicant or the cohabitant and the needs of such children, including the need for care and attention.

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

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

The 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 system of  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 couples 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 within 6 months of the grant of representation in circumstances where the relationship had not ended before the death.It is not necessary to prove financial dependence for this redress unlike the other redress such as a property adjustment order, maintenance, pension adjustment orders. 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 but where the relationship was over prior to death, financial dependence by the survivor on the deceased must be proven.

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 was 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 case law and jurisprudence arising from judicial separation and divorce case law 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;

(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;

(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

The 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

Never met the surviving cohabitant in the deceased’s house

No special or intimate expressions of affection

Unhelpful [from the defendant’s point of view] facts – never asked the parties whether they were in an intimate relationship

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 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 couples, 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,

(c) the interests of the beneficiaries of the estate, and

(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.

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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. 

Different time limits for cohabitants

2 year limitation period from the end of the relationship, save in exceptional circumstances for all actions arising under theCohabitants Part of the 2010 Act except actions pursuant to section 172(6) – which allows the court to vary, discharge, suspend or revive an order already made. A shorter time limit of 6 months applies to section 194 actions [see below].

Section 195 Certain Rights and Obligations of Cohabitants Act 2010  

The new rights and obligations inserted in the Guardianship of Infants Act 1964 and the Family Law (Maintenance of Spouses and Children) Act 1976 are not subject to these time limits.  

6 months after the grant of representation is taken out is the time limit for a qualified cohabitant to apply for provision from the estate of the deceased cohabitant

 Section 194(1) Certain Rights and Obligations of Cohabitants Act 2010  

2 years is the longest that a relationship can be ended before the death of the cohabitant if the surviving one wishes to apply for provision from the estate unless certain orders had already been applied for or were made see section Section 194(2) Certain Rights and Obligations of Cohabitants Act 2010  

2 years as a cohabitant in order to be a qualified cohabitant if children together and 5 years if no children

Section 172 Certain Rights and Obligations of Cohabitants Act 2010   

12 months for guardianship

Where the cohabitant is the father of the child and has lived with the mother for more than 12 consecutive months he will be appointed guardian if he can prove this period of cohabitation section 2(4A) & 6F of the Guardianship of Infants Act 1964

3 years for guardianship with at least 2 of those sharing parental responsibility

Where the cohabitant is not the father but has been a cohabitant of a parent of the child for over 3 years and has shared day to day care with that parent for a period of more than 2 years then he or she may apply for guardianship.

This new right is inserted into section 6C of the Guardianship of Infants Act 1964 by section 49 of the 2015 Act. A cohabitant can apply for guardianship where he or she is over the age of 18 years and on the date of the application, he or she has been for over 3 years a cohabitant of, a parent of the child, and has shared with that parent responsibility for the child’s day-to-day care for a period of more than 2 years.

3 years for custody application with at least 2 of those sharing parental responsibility

This new right is inserted into section 11E of the Guardianship of Infants Act 1964 by section 57 of the 2015 Act . Where the cohabitant is not the father but has been a cohabitant of a parent of the child for over 3 years and has shared day to day care with that parent for a period of more than 2 years then he or she may apply for custody.

No time limit for cohabitant parent {or another person} to seek maintenance from cohabitant who is not a parent but who is a guardian of the child. It appears the 2 year time limit contained in section 195 of the 2010 Act only applies to that Act whereas the right to claim maintenance arises in this case from Section 5B {5C for the other person} of the Maintenance of Spouses and Children Act 1976 as inserted by Section 73 of the Child and Family Relationships Act 2015.

The variety of time limits and statutes which apply to cohabitants is a good reflection of the piecemeal approach which has been taken to legislating for them.  This legislation has not penetrated the consciousness of the vast majority of our fellow citizens. There is an onus on us as family lawyers to inform our clients and wider society and we should go forth and spread the good news or at least the not terribly bad news that if you are a cohabitant you have plenty of rights.

 

Keith Walsh

Solicitor

8 St. Agnes Road,  Crumlin Village, Dublin 12, D12 VR64

Consulting rooms, Pembroke Hall, 38/39 Fitzwilliam Square, Dublin 2.

Tel:   00 353 1 455 4723

Fax:  00 353 1 455 4596

W:     www.kwsols.ie

 

 

[1] Section 172(1) of the Civil Partnership and Rights and Certain Rights and Duties of Cohabitants Act 2010

[2] Section 172(4)

[3] 173(2)

[4] 194(1)

[5] 173(3)

[6] 195

[7] 194(1)

[8] Any person having an estate or an interest in land which is co-owned whether at law or in equity may apply, inter alia, for an order for sale of the land and distribution of the proceeds of sale as the court directs pursuant to section 31(2)(c) of the Land and Conveyancing Law Reform Act 2009. The court will look to the direct contributions of the parties to the property in order to decide in what shares to distribute the sale proceeds and so the method of calculation is entirely different to that contained in the 2010 Act. 

[9] Section 172(1)

[10] Section 172(2)(a)-(g)

[11] Section 172(5)

[12] Ryan, Fergus: Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, Round Hall, 2011, page 278

[13] Law Reform Commission, Rights and Duties of Cohabitants, LRC-82-2006, (Dublin: Law Reform Commission, 2006) at 69) as cited by Ryan page 277.

[14] Ibid at 69 and 278

[15] Mee, ‘The Property Rights of Cohabitants under the 2010 Act’, School of Law, Trinity College Dublin, Conference on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, April 2,2011, page 12. Also referred to by Ryan above  at page 278

[16] Ibid

[17] Section 173(3)(a)-(d)