Family law in Ireland changed dramatically on 1 January 2011 when civil partnership legislation became law.
This legislation, with the rather cumbersome title The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, gives wide ranging rights and obligations to same sex and cohabiting couples.
It also establishes a civil partnership registration scheme for same sex couples.
Civil Partnership
This allows same sex couples to register their relationship in much the same way as a civil marriage. The ceremony for registration is virtually identical to a civil marriage and brings with it most of the rights and obligations of marriage to include:
- The responsibility to support and maintain each other financially;
- Inheritance and succession rights very similar to those of spouses;
- Entitlement to pension benefits; and
- Protection from domestic violence;
Civil partners should revise their wills after they register their partnership as the registration will revoke any previous wills (as is the case with married couples).
Those who have recently registered their civil partnership should notify their employer and nominate their partner as the person that they wish to benefit from any death in service payment.
Equally, employers should bear in mind that civil partners must have the same status at work. For example if there is a VHI benefit provided to the spouse or family of a worker, this should be extended to civil partners. HR Departments and pension providers should be made aware of the civil registration.
Civil partners will be treated like married couples when it comes to taxation. For example, civil partners can opt for joint assessment. Equally civil partners will not be liable for stamp duty where one partner transfers property to another and will not be liable for inheritance or gift tax.
Similarly, civil partners will be treated like married couples when it comes to social welfare. For example a widow’s/widower’s pension will be available to a surviving civil partner.
Should a civil partnership break down, a Court can grant a decree of dissolution if it is satisfied that the civil partners have lived apart from each other for a period of two out of the previous three years and that proper provision exists or is made for the civil partners.
A Court can make any or all of the following orders when civil partners separate:
- Maintenance/financial support;
- Lump sum payment;
- Property adjustment order;
- Occupation of a shared home;
- Sale of a shared home;
- Life Assurance;
- Pension adjustment order;
- Retention or extinguishment of succession rights.
Cohabitants (Couple living together)
Interestingly, cohabitants cannot register their relationship like same-sex couples can (as outlined above). Instead, the legislation provides a redress scheme for cohabitants when their relationship ends, through death or separation.
The legislation allows cohabitants to apply to court for maintenance, pension adjustment orders, property adjustment orders or a share in the estate of a cohabitant who has died.
In order to qualify as a cohabitant the following criteria apply:
- Cohabitants can be an opposite or same sex couple who are:
- Living together in an intimate and committed relationship. The couple must be living together for five years. This is reduced to two years if they have children together;
- Not married to each other;
- Not registered in a civil partnership; and
- Not in the prohibited degrees of relationship.
2. If a cohabitant is still married he or she must be living apart form his/her spouse for at least four out of the previous five years to come within the legislation.
The new law applies only to those cohabitants whose relationship ends after 1 January 2011 but the time spent cohabiting before that date is taken into account.
In order to avail of the new law where cohabitants separate, it is necessary to apply to court within two years of the relationship ending. When a cohabitant dies, the surviving cohabitant can apply for provision out of the deceased’s estate within six months after probate or administration is granted.
The legislation allows cohabitants enter into a cohabitation agreement. This legally binding document allows a couple to regulate financial maters during the relationship and crucially when the relationship ends. Both cohabitants must obtain legal advice, and ideally independent legal advice, prior to entering into the cohabitation agreement. The cohabitation agreement must be in writing and signed by both cohabitants.
Cohabitants may elect to opt out of the provisions of the legislation in the cohabitation agreement. However, a court may set aside or vary a cohabitation agreement in exceptional circumstances where it would cause serious injustice.
The following interesting points arise on foot of this legislation:
- For social welfare purposes cohabitants are treated in the same way as married couples and civil partners;
- Cohabitants are treated as single people for income tax purposes;
- Cohabitants are treated as strangers for inheritance tax purposes;
- Payments for maintenance and pension adjustment orders will end if the cohabitant gets married, enters a civil partnership with another person of if either cohabitant dies.
For further information on this legislation or any family law matter please contact Helen Coughlan on 045 431542 or email helen.coughlan@pjf.ie
