Co-habitation/civil partnership – The 2010 Act
CONTENTS
1. Introduction
2. Civil Partnership and certain rights and obligations of Cohabitants Act 2010
3. Civil Partnership
4. Declarations as to Status of Civil Partnerships
5. Legal effects of entering into a Civil Partnership
6. Decree of Nullity of Civil Partnership
7. Dissolution of Civil Partnership
8. Ancillary Relief Orders
9. Factors to be taken into account by the Court
10. The English Civil Partnership Act 2004
11. Provisions of the Civil Partnership Act 2004
12. Formalities of Civil Partnerships
13. Children
14. Dissolution of Civil Partnerships
15. Financial Claims on Dissolution
16. The Cohabitation Scheme – Rights and duties of Cohabitants
17. Who is a Cohabitant?
18. What is a “Qualifying Cohabitant”?
19. The Redress Scheme
20. Compensatory Maintenance Orders
21. Grey -v- Grey [2010] EWHC 1055 – The High Court re-hearing and husband’s Application for variation
22. Criteria for the making of Orders under the Redress Scheme
23. Taxation Provisions
24. Cohabitant Agreements
1. INTRODUCTION
Co-habiting couples are the fastest growing family unit in Ireland. In 1996 there were 31,300 couples living together whilst unmarried. However, the 2006 Census indicated that in that particular year there were 121,800 co-habiting couples i.e. nearly a quarter of a million people. Indeed those figures represent one in every twelve family units.
The number of same sex co-habiting couples had increased from around 150 in 1996 to approximately 1,300 in 2006. However, this particular figure may well be somewhat understated.
It is clear that once the present Census is completed that the figures will be substantially higher.
There are many different types of couples who co-habit with each other without going through any ceremony of marriage or civil partnership e.g. a couple where one or both of them are married to somebody else; a couple living together planning to get married at some date in the future; those who object to marriage per se; those relationships where one or other party has obtained a foreign Divorce which is not recognised here and until December 2010 same sex couples who up to then had no legal status as a couple and could not obtain same.
Largely because the 1937 Irish Constitution describes the family as “the natural primary and fundamental unit group of society” (Article 41.1.1) and guaranteed to protect the family in its constitution and authority “as the necessary basis of social order and is indispensible to the welfare of the nation and the State (Article 41.1.2) co-habitees, whether or the same sex or different sexes, had very few if any enforceable legal rights arising from their relationship. Indeed in 1966 the term “family” was held by the Supreme Court to mean the family based on marriage.
As a result only the odd section in the odd piece of legislation held any relevance for non married couples. An example was the Domestic Violence Act 1996 which for the first time gave statutory protection to non marital couples. In addition, the Family Law Act 1981, apart from somewhat disappointingly abolishing the fascinating actions for criminal conversation, enticement and harbouring of spouses also dealt with the rights of engaged couples. It made some reference to disputes concerning property between engaged couples once the agreement to marry was terminated but these were of little assistance. The Act further stated that wedding presents were gifts to the couple as joint owners and were returnable at the request of the Donor if the marriage did not take place. Again if the marriage did not take place the giver of the engagement ring could demand its return, for more information click here.
The most common disputes which arose between co-habitees once the relationship ended were naturally disputes over property and property rights. Quite incredibly the only relevant pieces of legislation, as we all know, dealing with such matters until now were the Partition Acts 1863-1876.
The entire situation has now radically altered with the passing of the Cohabitants Act 2010 with the extremely unwieldy title.
2. Civil Partnership and certain rights and obligations of Cohabitants Act 2010
This Act largely followed the recommendations of the Law Reform Commissions Report on the rights and duties of co-habitants published on the 1st of December 2006.
It was signed by the President on the 19th of July 2010 and came into operation by Ministerial Order made in December 2010. It has now been up and running for all of three months.
It is important firstly to note that the Act introduces two separate schemes, namely:-
1. A Civil Partnership Registration Scheme confined to unmarried same sex couples; and
2. A Cohabitation Scheme for unmarried persons co-habiting together whether or the same sex or the opposite sex.
There has been much confusion about these two Schemes which should in my view have been dealt with in separate pieces of legislation. However, we are stuck with what we have.
The Civil Partnership Scheme applies only to same sex couples who must register their relationship as set out in the Act.
The second Cohabitation Scheme applies not only to couples of the same sex but also couples of the opposite sex. There is no registration process in these cases and the couples must not be married to each other.
It is important to note that neither Scheme applies to the very common situation which exists in Ireland where for example two brothers or two sisters live together in the family home after their parents have died. Such individuals cannot enter into a Civil Partnership with each other nor are they considered to be co-habitants for the purposes of the legislation.
3. Civil Partnership
As I have already said Civil Partnerships are only relevant to unmarried same sex couples. They both must be aged 18 years or over and must not already be in an existing Civil Partnership or marriage with other people. In addition, the parties must not be within prescribed “prohibited degrees of relationship”.
In order to enter into a Civil Partnership the parties must firstly give three months written notice to the Registrar of Marriages of their intention to enter such a partnership. At least five days before the ceremony they must each make a Declaration to the effect that there are no legal impediments to their Civil Partnership. A Civil Partnership can only be celebrated by a Civil Registrar and not by a Priest or other Religious Minister. A partnership ceremony then takes place where both parties make the following declarations, namely:-
a) A Declaration that he/she does not know of any impediment to the Civil Partnership registration;
b) A Declaration of his/her intention to live with and support the other party; and
c) A Declaration that he/she accepts the other party as a Civil Partner in accordance with the Law. This must be done before the Civil Registrar and two witnesses. The parties then sign the Registration Form and are then Civil Partners.
It is not possible to enter into a Civil Partnership ceremony in a Church, Mosque or other religious building.
4. Declarations as to Status of Civil Partnerships
Section 4 of the Act states that the Court may make one or more of the following Orders in relation to a Civil Partnership, namely:-
a) An Order declaring that the Civil Partnership was at its inception a valid Civil Partnership;
b) An Order declaring that the Civil Partnership subsisted on a date specified in the Application; and
c) An Order declaring that the Civil Partnership did not subsist on a date specified in the Application other than the date of its inception.
Section 5 of the Act also, most importantly, allows the Minister to declare that a class of legal relationship entered into by two parties of the same sex in another jurisdiction is entitled to be recognised as a Civil Partnership if under the Law of the jurisdiction in which the legal relationship was entered into (a) the relationship is exclusive in nature (b) the relationship is permanent unless the parties dissolve it through the Courts (c) the relationship has been registered under the Law of that jurisdiction and (d) the rights and obligations attendant on the relationship are in the opinion of the Minister sufficient to indicate that the relationship would be treated comparably to a Civil Partnership.
Interestingly in January 2011 an Irish man and a Brazilian man were reported as becoming the first gay couple in the State to have their Civil Partnership formally recognised by the State.
The couple, who incidentally both worked at Argos, formed a Civil Partnership at a ceremony in Northern Ireland in 2010.
Because they fulfilled the criteria of Section 5 of the Act their union became recognised under Irish Law. Subsequently the couple attended at the Irish Naturalisation and Immigration Service Offices attempting to sort out the Brazilian’s residency status. He had been living in Ireland on a Student Visa for two years or thereabouts.
After much discussion apparently the Official came back to the couple and said “congratulations – you are the first couple in Ireland to be recognised as Civil Partners”.
5. Legal effects of entering into a Civil Partnership
The Act infers certain rights on the parties to a Civil Partnership and also gives the Court certain powers in the event of a dissolution of such partnership.
These rights and powers are as follows:-
1. Shared home protection
The phrase “shared home” is simply a replacement for the phrase “the family home” referred to in the Family Home Protection Act 1976. The only difference is that those residing in the property are Civil Partners and not spouses.
The protections provided to a married couple under the 1976 Act are almost exactly mirrored for Civil Partners in the 2010 Act. The “shared home” cannot ordinarily be sold, leased or mortgaged by one Civil Partner without the prior written consent of the other. It is possible for a Court to dispense with the consent of one or other of the Civil Partners to the sale of a “shared home” but only where appropriate alternative accommodation is available to the non owning Civil Partner.
2. Financial Support
Civil Partners have the right to seek maintenance from each other and also seek Lump Sum Orders and Secured Maintenance Orders where appropriate. The maintenance provisions contained in the Act are broadly similar to those provisions relating to married couples in the Family Law (Maintenance of Spouses and Children) Act 1976. The Act also makes provision for enforcement of Maintenance Orders through Attachment of Earnings Orders.
3. Domestic Violence
Pursuant to Part 9 of the Act Civil Partners can now apply for Protection Orders, Safety Orders and Barring Orders in exactly the same way as spouses can.
4. Succession Rights
Major amendments to the Succession Act 1965 had to be made. The effect of the 2010 Act in effect gives Civil Partners exactly the same rights as spouses insofar as inheritance rights are concerned.
Where there is a reference to spouse in the 1965 Act the same rights will apply to a Civil Partner.
Section 117 Applications however still remain but must not affect a Civil Partners legal right share “unless the Court after considering all of the circumstances, including the Testators financial circumstances and his/her obligations to the surviving Civil Partner, is of the opinion that it would be unjust not to make an Order” (Section 86 of the 2010 Act).
6. Decree of Nullity of Civil Partnership
Nullities are dealt with at Sections 107 and 108 of the 2010 Act.
A Decree of Nullity may be granted to one or other of the Civil Partners if a Court is satisfied that at the time of the registration of the Civil Partnership that either or both of the parties lacked the capacity required, either or both were under the age of 18 years or already party to a valid marriage or that the formalities were not observed. In addition, a Decree can be granted if either or both of the parties were under duress or undue influence or did not intend at the time to accept the other as a Civil Partner in accordance with the Law.
In addition, a Decree can be granted where either or both of the parties was unable to give informed consent as sworn by a Consultant Psychiatrist or the parties were within the prohibited degrees of relationship.
7. Dissolution of Civil Partnership
Section 110 of the Act states that the Court may grant a Decree of Dissolution in respect of a Civil Partnership if (a) at the date of institution of proceedings the partners have lived apart from one another for a period of, or periods amounting to, at least two years during the previous three years and (b) proper provision has been made for the Civil Partners having regard to the circumstances.
The fact that the relevant living apart period referable to Civil Partners is only two years and that for spouses is four years is a subject of some debate. There does not seem to be any logical reason why the relevant periods should be different.
In addition, despite the constant promotion by the State of mediation, counselling etc. there is no requirement on Practitioners, as there is insofar as Divorce and Judicial Separation are concerned, for Solicitors to discuss with their clients when a Civil Partnership is being dissolved the possibility of reconciliation, mediation, counselling etc.
It is still however open to the Court to adjourn proceedings at any time if the Court feels that there is a possibility of reconciliation or feels that mediation or negotiations with regard to the terms of the split could bear fruit.
It is possible to bring such Applications for a dissolution of a Civil Partnership to either the Circuit Court or the High Court.
8. Ancillary Relief Orders
Because of the fact that it is not possible for Civil Partners to obtain a Decree of Judicial Separation and because they must wait for a period of two years before they can apply for a dissolution of the Civil Partnership the fact that the Court can make various Orders pending suit is important. These Orders are Maintenance Orders, Orders under the Domestic Violence Acts and Orders to protect the shared home.
Once the Decree of Dissolution is made by the Court or at any time thereafter the Court can make various Orders which are almost exactly the same as those which can be made when the Court are granting a Decree of Judicial Separation or Divorce.
These Orders include Periodical Payments Orders, Lump Sum Orders, Property Adjustment Orders, Financial Compensation Orders, Pension Adjustment Orders, Orders for the sale of property etc.
Again, as in Divorce or Judicial Separation, the various Ancillary Relief Orders can be made at the time of granting the Decree of Dissolution or “at any other time thereafter”. The issue of the inability of couples to provide for a “clean break” scenario will continue to cause problems in the future.
9. Factors to be taken into account by the Court
Section 129 of the Act sets out the various factors which must be taken into account by the Court when deciding what type of Ancillary Relief Orders to make.
These factors are broadly similar to those which must be considered by the Court when granting Decrees of Judicial Separation or Divorce.
The major difference however is that there is no reference in the 2010 Act to the interests or needs of any children of one or other of the Civil Partners. This does seem to have been an opportunity missed. The only reference to children in the criteria section is a slight reference to “any child to whom the Civil Partners have an obligation of support”.
Another difference is the reference to the length of time the couple in a Civil Partnership have lived together. The relevant period only commences “after the Partnership is registered”. This could lead to very unjust situations where Civil Partners have lived together for many years prior to the coming into operation of the Act, then enter into a Civil Partnership which only lasts for a short period.
10. The English Civil Partnership Act 2004
It is appropriate at this stage to consider the English Civil Partnership Act 2004 as it only applies to same sex couples and has little or no relevance to co-habitees.
In late 2005 the Civil Partnership Act 2004 came into force in England having received royal assent on the 18th November 2004. This piece of legislation has had a major impact on relationships both between married and unmarried persons in England. The Act is of course applicable in Northern Ireland which has resulted in a significant number of same sex couples from the twenty six Counties travelling to the North to enter into Civil partnerships.
As Ian Curry-Sumner points out in his interesting article on civil registration schemes for unmarried couples in the Irish Journal of Family Law Autumn 2005, there are currently more than 40 jurisdictions that have created a form of registry for non marital relationships. During the last 20 years more and more countries are dealing with the issues surrounding such relationships.
Canada, New Zealand and many States in America have civil registration schemes which are not dissimilar to that now available in the UK.
The Civil Partnership Act in England is relevant only to same sex couples. Co-habiting different sex couples or same sex couples who have not availed of the provisions of the Civil Partnership Act continue to have very few legal rights which can be availed of in the event of a dissolution of the relationship.
“The British Government took the view that the problems of opposite sex couples who co-habit and those others who chose to live together were substantially different from same sex couples who desire to formalise their relationship but are prevented by Law from doing so”. (Martin Downes/Gerard Wilson – Jordan’s Conference London 2004).
Throughout the entire debate in Britain and indeed since the coming into operation of the Civil Partnership Act there have been many statements by Legislators and Lawyers that civil partnership is not equivalent to a “same sex marriage”.
It is clear however that the differences between the two are minimal to say the least and that despite statements in the legislation to the contrary, same sex marriages are now readily available in the British Isles.
11. Provisions of the Civil Partnership Act 2004
The Act itself is gigantic and contains 264 Sections and 30 Schedules. The main reason for this is that it covers not only England and Wales but also Scotland and Northern Ireland. In addition, there are differing rules applying to the latter two jurisdictions.
Another reason would appear to be a stated desire on the part of the Legislators to impose duties and grant rights to civil partners which are as close as possible to the duties and rights attaching to a married couple.
Interestingly if a same sex couple wish to register their civil partnership in England or Wales they need only reside in the relevant jurisdiction for a period of 7 days. However there are no residency requirements whatsoever in Scotland or Northern Ireland.
12. Formalities of Civil Partnerships
It is clear that the intention behind the Act is to provide the same rights and responsibilities for civil partners as for those who conclude a civil marriage.
I have already made the point that a civil partnership is in most respects equivalent to a marriage.
There are however a couple of differences between the two, namely:-
(a) Non consummation is not a ground for the annulment of a registered civil partnership, and
(b) A civil partnership cannot be dissolved on the ground of adultery.
In order for a couple to register a civil partnership neither of them can be:-
(a) Of the opposite sex;
(b) Already a civil partner or already married;
(c) Under 16; or
(d) Within the prohibited degrees of relationship.
The rules relating to a civil partnership and its formalisation are clear and must be complied with.
A civil partnership is formed when two people have signed a civil partnership document in the presence of each other, the Registrar and two witnesses. The witnesses and the Registrar must then also sign the civil partnership document.
The registration of a civil partnership cannot take place in a “religious premises”.
Each of the proposed civil partners must give notice of the proposed partnership to a registration authority. After giving notice the parties are obliged to wait a further 15 days before finalising the partnership.
The general rules are not dissimilar to those necessary when a couple are marrying each other. The notice must be signed by the proposed civil partner in the presence of a Registration Officer. There must be no impediment of kindred or affinity. The notice must be publicised during the waiting period and objections to the proposed civil partnership may be made by any person during the waiting period.
Once the waiting period expires the Registrar is under a duty at the request of one or both of the proposed civil partners to issue a civil partnership schedule. The proposed civil partners then have 12 months from the day the first civil partners notice of proposed civil partnership was recorded to sign the civil partnerships schedule.
13. Children
It is clear that civil partners can acquire the same rights in relation to children as married couples in the UK. This is not the position in Ireland.
In a situation in which a civil partner has “parental responsibility” for a child and is in a civil partnership with someone who does not have “parental responsibility” for that child, that other person is a step parent. That other person may acquire “parental responsibility” either by agreement with the other partner in the prescribed form, with the agreement of both parents or by Order of the Court on the Application of the step parent.
A parental responsibility agreement once made can only be brought to an end by Court Order.
In relation to adoption The Adoption and Children Act 2002 allowed same sex couples to adopt children. The Civil Partnership Act simply extended this right to civil partners who had registered their partnership.
14. Dissolution of Civil Partnerships
(a) Nullity
The grounds for a declaration that a civil partnership is null and void either ab initio or voidable are much the same as the grounds available to a couple who have entered into a ceremony of marriage.
However an interesting additional ground for nullity is “if at the time of the formation of the civil partnership one of the parties was pregnant by another person other than the other party to the partnership”. There are also grounds relating to gender recognition certificates etc. which are not of relevance at this stage.
However it is also interesting that there is no requirement in the Civil Partnership Act for the civil partnership to be consummated unlike in marriage.
(b) Action for Dissolution or Legal Separation
No such Application may be made for an Order before a year has elapsed from the date of the formation of a civil partnership. This is similar to the Divorce legislation.
Subject to this either party to a civil partnership may apply for a dissolution on the ground that the partnership has irretrievably broken down. This ground can be proven in one of the following ways:-
(a) Behaviour such as that the Applicant cannot reasonably be expected to live with the Respondent.
(b) The parties have lived separate and apart from each other for a period of two years and the Respondent consents to the dissolution.
(c) The parties have lived apart for five years.
(d) Desertion.
As I have already pointed out adultery is not a ground for dissolution.
Before granting a dissolution a Court must be satisfied that there is proper provision for both parties and any dependent children.
15. Financial Claims on Dissolution
The majority of the ancillary reliefs available to a married couple are available to a couple who have registered their civil partnership in the event of a breakdown of that relationship.
The Orders available to civil partners include Periodical Payment Orders, Lump Sum Orders, Property Adjustment Orders, Variation Orders, Orders for the sale of property and Pension Adjustment Orders.
The criteria sections in the Divorce legislation again are almost identical to those contained in the Civil Partnership Act.
16. The Cohabitation Scheme – Rights and duties of Cohabitants
As I have already indicated the 2010 Act not only provides for Civil Partnership between same sex couples but also sets up a Scheme for unregistered unmarried couples both of the same sex and of the opposite sex.
Up to December 2010 couples, whether of the same sex or different sexes, who may have been living together for many years had no rights whatsoever in relation to financial support, inheritance rights, property rights etc. Couples often referred to themselves as “common law spouses” and indeed often felt that this gave both of them some sort of legal rights. Clearly this was inaccurate.
Part 15 of the 2010 Act set up a “Redress Scheme” which provides protection for a vulnerable party at the end of a long term same sex or opposite sex relationship and secondly provided for the recognition of Cohabitant Agreements.
It is interesting that the Act does not confer any status on co-habiting couples as legislation does with married couples and indeed as the 2010 Act does with Civil Partners. The Act attempts to clarify the legal position of co-habiting couples and also makes provision for various Relief Orders in the event of the ending of such a relationship.
17. Who is a Cohabitant?
Section 172 of the 2010 Act defines a Cohabitant as “one of two 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”.
In deciding whether or not two adults are Cohabitants a 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.
There is no definition of what is an “intimate and committed relationship” contained in the Act. This will certainly give rise to some interesting arguments in Court in the future. The Act does state 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”. It is difficult to understand precisely what this means.
Efforts are being made to amend the Act already through the Miscellaneous Provisions Bill and provide for a definition of “an intimate and committed relationship” but this has now died a death.
18. What is a “Qualifying Cohabitant”?
Only a “Qualified Cohabitant” may bring an Application to Court under the Redress Scheme set out in the 2010 Act.
Section 172(5) defines a “Qualified Cohabitant” as Cohabitants (whether of the same sex or opposite sexes who were living together and who immediately before the time that the relationship ended, whether through death or otherwise, were living as a couple for a period of two years or more (in the case where they are the parents of one or more dependent children) and for a period of five years or more in any other case.
Interestingly there is an exception to these general rules which leads to a couple who would otherwise be a Qualifying Cohabiting couple not being so qualified if (a) one or both of the adults is or was at any time during the relationship concerned an adult who was married to someone else and (b) at the date the relationship concerned ends each adult who is or was married has not lived apart from his/her spouse for a period or periods of at least four years during the previous five.
It is also important to note that Section 206 of the Act provides that time during which two persons lived as a couple before the commencement date can be included for the purposes of calculating whether they are Qualified Cohabitants within the meaning of the Act. However, an Application for Redress through the Courts may only be made where a relationship ends, whether by death or otherwise after the commencement of the Act. This means that if your relationship has ended prior to December 2010 neither co-habiting party has any rights under the Redress Scheme set out in the Act.
19. The Redress Scheme
Under the Redress Scheme the Court has power to make various Ancillary Relief Orders when the relationship of Qualified Cohabitants breaks down or ends for any other reason.
The types of Orders which can be made are similar to those which can be made by the Court on Separation and Divorce. These include Property Adjustment Orders, Compensatory Maintenance Orders, Pension Adjustment Orders and Application for provision from the Estate of a deceased Cohabitant.
It is clear however that the legislation envisages a situation where the reliefs available to Qualified Cohabitants under the Redress Scheme are somewhat more limited than those available to spouses when going through a Judicial Separation or Divorce. In addition, the reliefs are also more limited than those available to Civil Partners under the Act.
This is particularly so in relation to Property Adjustment Orders (Section 174).
Firstly, the types of Property Adjustment Orders which can be made under this Section are certainly less extensive than those which can be made in the context of Judicial Separation or Divorce.
In addition, the Act states that before making a Property Adjustment Order “the Court shall have regard to whether in all the circumstances it would be practicable for the financial needs of the Qualified Cohabitant to be met by an Order for Maintenance or a Pension Adjustment Order.” The Court also must have regard to all of the circumstances, “including the likelihood of a future change of circumstances of either of the Qualified Cohabitants”. It could be argued that if one of the Cohabitants was entering into another relationship with another person that this should be a relevant factor take into account in making decisions on such matters.
20. Compensatory Maintenance Orders
Most of the usual Orders including Attachment of Earnings Orders, Maintenance Orders, Lump Sum Orders are available to Qualified Cohabitants. The Act however does not allow a “dependent member of the family” to apply for a Compensatory Maintenance Order and such an individual would have to bring an Application under the Family Law (Maintenance of Spouses and Children) Act, 1976.
Obviously as yet there is no case law in Ireland which can provide guidance to Practitioners insofar as Ancillary Relief Orders are concerned. There is however an interesting and relevant English case which considers the effect of a former spouse co-habiting with another person insofar as maintenance is concerned.
Grey -v- Grey [2009] EWCA 1424 – Court of Appeal decision. In this case the husband a wealthy Irish businessman had been Ordered by the High Court in London to pay maintenance to his former wife of €137,500 per year for life.
Mr. Grey appealed this decision to the Court of Appeal on the grounds that the Order should not have been made as his former wife had moved her lover into her Dublin home and had given birth to his child.
The Court was told that the couple met as teenagers in Dublin and emigrated to London in 1997. Mr. Grey became a Broker in the City and the couple married in London in September 2003. They had an eight year old daughter at the time.
The marriage broke down in 2005 and Mr. Grey moved out of the family home in Northwest London. Mrs. Grey then returned to Ireland with the daughter and moved into a substantial house in North County Dublin which was transferred into her name.
During her claim in the High Court for a share of the assets of the marriage she wrote to her husband’s Solicitors denying that she was cohabiting with another man. However at a previous Divorce hearing in the High Court in London she agreed she was “in a fixed committed relationship with LT” and that she was 17 weeks pregnant by him.
Mr. Grey was ordered to pay the sum of €137,500 maintenance per annum to his former wife despite the fact that the High Court Judge found the wife to be a dishonest witness.
The husband appealed to the Court of Appeal largely on two grounds:-
1. That the Judge had failed to make proper findings of fact regarding the relationship between the wife and her new partner; and
2. The High Court had taken into account cohabitation before marriage as part of its total duration calculations and the Law should now take into account cohabitation after marriage.
In allowing the Appeal and directing that the matter be re-heard in the High Court the Court of Appeal took the view that the Judge’s finding of fact on the cohabitation issue was inadequate. It was not good enough for the Judge to resolve the issue by saying “they may or may not cohabit – an unsatisfactory word and concept in my long tailed view, vaguest equality and duration and not a reliable indicator of anything long term”.
The Court of Appeal (Thorpe LJ) said the Trial Judge should have approached the question in the following way:-
1. The unchallenged evidence established actual cohabitation during a number of weeks of surveillance and the commencement in November 2006 of a situation in which Mr. Thompson (the wife’s co-habitee) was a regular household member.
2. The wife had presented a false case both in preparation for trial and at the trial itself.
3. The wife’s motive for her false case was to protect her periodical payment claims from reduction to reflect the arrival of Mr. Thompson in her life.
4. The explanation for Mr. Thompson’s presence was fundamentally implausible.
5. The Judge should not have accepted the wife’s evidence on this topic without corroboration and if any inferences were to be drawn they should be drawn against her.
Mr. Thompson, the wife’s new partner, had a steady job at a relatively senior level and had his own good home in Dublin and also drove a Mercedes.
Thorpe LJ stated clearly that it was relevant that the wife would have claims against Mr. Thompson for maintenance. It is arguable therefore that cohabiting with a third party may well be of relevance in Judicial Separation or Divorce cases insofar as Ancillary Relief claims are concerned.
Thorpe LJ said that it could not be fair to the husband as the payer of maintenance to fail to investigate whether Mr. Thompson was making any financial contribution to the household and if not what was his capacity to make such contributions. He said questions should have been asked about Mr. Thompson’s remuneration and general financial circumstances.
The Court of Appeal went on to find that it was open to the High Court Judge (Singer J) to discount the periodical payments claim to reflect the relationship between the wife and Mr. Thompson.
21. Grey -v- Grey [2010] EWHC 1055 – The High Court re-hearing and husband’s Application for variation
At the re-hearing Singer J (the original High Court Judge) made the following findings:-
From November 2007 which was when Mr. Thompson discovered that the wife was expecting his child, the quality of the relationship was such as to require an assessment of what Mr. Thompson should contribute to her domestic economy. It was not however a full cohabiting relationship and should not be assumed that the partner would cease to maintain his separate residence. However, the new partner should be able to contribute £16,000 per annum. There was no justification for reducing the husband’s spousal maintenance to a nominal sum. The significant increase in the husband’s earnings in 2008 and 2009 was a relevant circumstance but did not in the circumstances of this case lead to an upward variation of periodical payments. What the Judge did was to increase the child maintenance payments from €16,500 to €27,500 (which would not bear Irish Income Tax). The wife’s spousal maintenance was reduced by a similar amount.
In effect what the High Court Judge did was to simply move the payments around leaving the same amount to be received by the wife for herself and the child of the marriage.
One commentator at the time commented somewhat cynically that “ultimately therefore this case illustrates the breadth of judicial discretion and the fact-specific nature of cases on variation of periodical payments”.
Apparently not only was the wife an untruthful witness but the husband was also not a very reliable witness. The Judge said at the re-hearing that the husband understated his gross income for the year to end March 2007 by some £750,000. At the original hearing the Judge found his gross income to be £725,000 per annum. In 2008 he was paid £945,000 per annum and from 2009 he received a gross salary of £1.3 million plus a £1 million loyalty bonus. The Court clearly felt that he was lucky to get away with the amount of maintenance ordered.
22. Criteria for the making of Orders under the Redress Scheme
Before the Court can make any Redress Orders it must be satisfied that the Applicant is financially dependent on the other Cohabitant and that such dependency arose because of the relationship or the ending of the relationship. In such circumstances the Court may, if it is satisfied that it is just and equitable to do so in all the circumstances make certain Redress Orders where appropriate.
Section 173(3) sets out the factors to be taken into account by the Court in determining whether or not it is reasonable to make an Order. These factors are broadly similar to those set out in the 1995 Act and the Divorce Act and include the following:-
a) The financial circumstances, needs and obligation of each qualified Cohabitant;
b) The rights and entitlements of any spouse or former spouse;
c) The rights and entitlements of any Civil Partner or former Civil Partner;
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.
There are however naturally some differences in the criteria set out in the 2010 Act.
In order to establish financial dependence the Cohabitant must satisfy the Court that this financial dependence arose as a result of either the relationship itself or the end of the relationship.
The Act enables the Court in the interests of justice to order that notice be given to “any other person” that it specifies and may hear submissions from such an individual before making an Order.
The 1996 Act provides that the Court may have regard to the standard of living previously enjoyed by the family concerned prior to the termination of the relationship between the spouses but there is no similar reference to this in the 2010 Act.
In addition, the 2010 Act does not require the Court to consider the accommodation needs of either of the Cohabitants (unlike the 1996 Act).
Finally, it is provided in Section 173 that the Court should have regard to the rights and entitlements of any person to whom either Cohabitant is or was married and shall not make any Order in favour of a Qualified Cohabitant which would affect such a persons rights.
23. Taxation Provisions
As I have already indicated the Minister, when introducing the legislation, stated that all appropriate amendments would be made to Taxation and Social Welfare legislation prior to the commencement date. This did not happen. The Revenue issued a note on the website which stated “to facilitate the accelerated timeframe for the passing of the 2011 Finance Bill the legislative changes to give effect to the taxation changes arising from the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 have been deferred until after the formation of a new Government. The draft legislation has already been largely prepared and includes all necessary changes together with the proposed date or dates on which such changes take effect. In general all changes will have effect for the year of assessment 2011. However, it is important to note that until the legislation is passed existing provisions continue to apply. The Revenue website will continue to be updated as more information becomes available”.
No more information has become available!
24. Cohabitant Agreements
Section 202 of the Act provides for the recognition of certain Agreements entered into between Cohabitants which provide for financial matters during the relationship or when the relationship ends whether through death or otherwise.
A Cohabitants’ Agreement is valid only if:-
(a) The Cohabitants;
(i) have each received independent legal advice before entering into it, or
(ii) have received legal advice together and have waived in writing the right to independent legal advice;
(b) The Agreement is in writing and signed by both Cohabitants; and
(c) The general law of contract is complied with
Most interestingly the Agreement may provide an opt out clause whereby the Agreement may provide that neither Cohabitant may apply for an Order for Redress under the Redress Scheme or an Order for provision from the Estate of his/her Cohabitant.
In addition, if a Cohabiting couple have signed an Agreement prior to the Cohabitation commencing same will be deemed to be a Cohabitants Agreement under the Act if it meets the other criteria in Section 202.
The recognition of such Agreements gives added weight to the arguments regularly made in Irish and English Courts for the recognition of Pre-Nuptial Agreements.
However, as is typical in Irish Family Law legislation, certainty is avoided by stating that “the Court may vary or set aside a Cohabitants Agreement in exceptional circumstances where its enforceability would cause serious injustice”. This gives Lawyers and Judges the opportunity to ignore the Agreement if they wish to do so.
Both the Superior Court Rules and the Circuit Court Rules dealing with Civil Partnerships and Cohabitation have been prepared in their final draft form. They have not yet been finalised as such but for assistance I have attached a draft Cohabitant Agreement which will be attached to the Rules when ultimately finalised.
David Bergin
March 2011