WHO DOES IT AFFECT?
For the first time in Ireland the Act which came into law on 18th of July last gives legal recognition for same sex couples in Ireland. In addition it offers additional rights and protection for co-habiting couples enabling them to apply to a Court for redress, i.e. seek financial relief from a partner after the breakdown of the relationship or the death of a partner.
This Article will only deal with that part of the Act which affects cohabiting couples whose relationship has broken down and the effects of the legislation on couples who have been living together for a period of time.
The Act for the first time gives legal recognition to couples who cohabitate for a period of time. Previously cohabitants had no legal protection and were left financial vulnerable when the relationship broke down or a partner predeceased them. The Act will now impose certain rights and obligations upon cohabitant couples unless the couple specifically choose to opt out of these protections in a Cohabitant Agreement.
The Act gives access to a Cohabitant who was involved in a long term opposite sex or same sex relationship to a Redress Scheme in order to seek financial relief from a Court following the breakdown of a relationship.
Furthermore it gives recognition and effect to Cohabitant Agreements and recognises the joint financial and property affairs of cohabiting couples.
WHO IS A QUALIFYING COHABITANT?
Under Section 169 the Act defines a cohabitant as “One or 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”.
Under Section 169 (2) of the Act the Court is directed to consider whether or not two adults are Qualifying Cohabitants by taking into account the circumstances of the relationship and in particular the following
(a) the duration of the relationship;
(b) the basis on which the couple lived together;
(c) the degree of financial dependency 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 purchases of 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 presents themselves to others as a couple.
Under Section 169 (2) of the Act it is further stated that a relationship does not cease to be an intimate relationship for the purposes of this Section merely because it is no longer sexual in nature.
In addition to the above a further requirement is that the party claiming to be a “Qualifying Cohabitant must have been living together with the other person 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 where there are no children for five years prior to making any application to the Redress Scheme.
The Act is retrospective so time spend by the parties living together as a couple prior to the Enactment of the Act is taken into account in deeming the appropriate time spent living together.
WHO IS PROHIBITING FROM MAKING AN APPLICATION?
Section 169 (4) of the Act prohibits certain persons as Cohabitants from availing of the Redress Scheme
(a) Where 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 thus preventing the cohabiting couple marrying in the State.
(b) At the time the relationship concerned ends, each adult who is or was married has not lived apart from his or her spouse for a period of at least four years during the previous five years.
WHAT ORDERS DOES A COURT HAVE POWER TO MAKE ON AN APPLICATION FROM THE QUALIFYING COHABITANT TO THE REDRESS SCHEME?
The Court can make the following Orders in respect of an application by a Cohabitant :-
Property Adjustment Orders;
Compensation Maintenance Orders;
Attachment of Earnings Orders;
Pension Adjustment Orders;
Orders for provision out of the Estate of a deceased Co-Habitee.
WHAT CONSIDERATIONS MUST THE REDRESS SCHEME/COURT TAKE INTO ACCOUNT PRIOR TO MAKING THE ORDERS?
The Act does not bestow an automatic rights or entitlements to relief for Cohabitants. Rather each case before the Redress Scheme must be determined on its own circumstances and merits. The qualifying Cohabitant must satisfy the Court that he or she is financially dependent on the other Cohabitant and that financial dependency arose from the relationship or the ending of the relationship. The Court must be satisfied in making Orders that it is just and equitable to do so in all the circumstances concerned.
Once the Court is satisfied that the Applicant is dependent on the other Cohabitant under Section 171 the Court must take into account the following range of factors :-
(a) the financial circumstances and needs of each qualified Cohabitant;
(b) the rights and entitlements of any spouse, civil partner or former spouse of a Civil Partner;
(c) The rights and entitlements of any dependent child or any child of a previous relationship of either Cohabitant;
(d) the duration of the parties relationship, the basis on which the parties entered into the relationship, the degree of commitment of the parties to one another, the contributions made by each party to the relationship, whether financial or otherwise, the effect on the earning capacity of each of the Cohabitant of the relationship, any mental or physical disability and the conduct of each of the Co-Habitees, if it would be unjust to disregard such conduct.
The applying Co-Habitant adult not only must establish financial dependency but must further satisfy the Court that this financial dependency arose as a result of either the relationship itself or the ending of the relationship.
WHAT TIME LIMITS ARE IMPOSED IN THE ACT?
Section 193 provides that the proceedings under the Redress Scheme must be commenced within two years of the end of the relationship between the Cohabitants or on the death of the partner of the applying Cohabitant.
Under Section 191 of the Act a qualifying Cohabitant may after the death of his or her Cohabitant but not more than six months after representation is first granted under the Succession Act 1965 in respect of that Cohabitant’s estate apply for an Order under this Section for provision out of the net Estates of his/her late partner.
Therefore the time limit on the death of the person is two years and proceedings must be brought within six months from the date of grant of representation.
The onus is on the Cohabitant to notify the Personal Representatives of the Estate of the deceased within 6 months.
The provision the Court makes for an Applicant under this Section cannot exceed a Share greater than that to which a spouse or civil partner would be entitled.
WHAT IS A COHABITANT AGREEMENT?
A Cohabitant Agreement allows couples who intend to live together or who are living together to enter into a legally binding agreement to regularise their financial position during the relationship and provides for the division of assets and other financial matters if the relationship breaks down or either party dies. The Cohabitant Agreement is only legally binding when the following has been adhered to-
(a) The Co-Habitees have received independent legal advice before entering into the Co-Habitees Agreement or have received legal advice together and have waived in writing the right to independent legal advice.
(b) The Agreement is in writing and is signed by both Co-Habitees;
(c) The general law of Contract is complied with.
A couple to a Cohabitant Agreement can insert a clause excluding either party to the relationship applying for relief out of the Redress Scheme.
However the Act provides that the Court may vary or set aside a Cohabitant Agreement in exceptional circumstances where enforceability would cause serious injustice.
An Agreement that was entered into prior to the passing of the Act which meets the criteria of a Cohabitant Agreement could constitute a valid cohabitant Agreement even if it was entered into before the cohabitation had commenced.
In addition a Court can enforce an Agreement entered into between the Cohabitants before the commencement of the Bill.
OTHER INTERESTING ASPECTS OF THE ACT RELATING TO COHABITANTS.
The Act also provides for the following reliefs for Cohabitant couples :-
a) an amendment of the Domestic Violence Act to enable a qualifying Co-Habitee to apply for a Safety Order within a minimum period of co-habitation.
b) An amendment to the Powers of Attorney Act 1996 to include such cohabitants as mandatory notice parties for the purposes of an enduring Power of Attorney
The Act does not take into account how Cohabitants should be treated in relation to taxation or social welfare. However it is envisaged that this will be included in the Finance Bill later this year and Cohabitants would have the same Gift Inheritance Tax threshold as between parents and children and that Stamp Duty rates available between related persons would apply once a Cohabitant had satisfied the qualifying criteria.
The Act provides a general saver requiring that in making any Orders under the legislation the Court shall have regard to the rights of any other persons with an interest in the matter to include a spouse, former spouse, civil partner or former civil partner.