Family law in Ireland changed dramatically on 1 January 2011 when cohabitation 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.
Cohabitant is the legal term used for couples who are not married, but live together. Interestingly, cohabitants cannot register their relationship like same-sex couples can (as outlined on our civil partnership page). Instead, the legislation provides a redress scheme for cohabitants when their relationship ends, through death or separation.
The legislation allows unmarried cohabitants to apply to court for maintenance, pension adjustment orders, property adjustment orders or a share in the estate (assets) of a cohabitant who has died.
In order to qualify as a cohabitant the following criteria apply:
1. 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 two out of the previous three 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.