PROPERTY RIGHTS AND OTHER RIGHTS MAY NOW BE AVAILABLE FOR UNMARRIED COUPLES WHO CEASE TO LIVE TOGETHER UNDER A NEW ACT.
Question: I am living with my boyfriend for the past two years approximately in a house owned by him. We are in a committed relationship but I do not wish to get married at this point in time. What difference does the new Act called the Civil Liability Act make to our situation?
Answer: The full name of the Act is The Civil Partnership & Certain Rights and Obligations of Cohabitants Act 2010. Although passed by the Oireachtas, it has not yet commenced to be in force. It is most likely that it won’t until 2011. The main thrust of the Act is to provide Rights in our Law for same sex couples. However, cohabiting couples who are in opposite sex relationships who are not married to each other are dealt with in Part 15 of the Act and this section introduces a “Redress” or Presumptive Scheme. This is because one of the aims of the Act is to protect an economically dependent or vulnerable person at the end of a long term cohabiting relationship, whether arising as a result of a breakdown of a relationship or on death.
Because this Act has not yet come into force, the practical operation of it has yet to be tested in relation to the Rights created for cohabiting couples such as yourselves who are in opposite sex relationships. It would appear however, that the Rights created for the first time under this Act in Irish Law are not that board for cohabiting couples such as yourselves.
Definition of Cohabitant
A cohabitant is defined as one of two adults (whether of the same or of the opposite sex) who live together as a couple in an intimate and committed relationship. A qualified cohabitant means an adult who is in a relationship or cohabitation with another adult for a period of two years or more, where they are the parents of one or more dependent children, or for a period of five years or more in any other case. Therefore, if you do not have children, you would not currently be a qualified cohabitant as I understand you are only living for the past two years with your partner.
In determining whether or not two adults are cohabitants, a Court must take into account the circumstances of the relationship including:
- the duration of the relationship
- the basis on which the couple live together
- the degree of financial dependence
- any agreements in respect of their finances
- contributions made to the acquisition of land or other assets
- whether there are any dependent children
- the degree to which the adults present themselves to others as a couple.
In addition, the relationship between the parties does not cease to be an intimate relationship merely because it is no longer sexual in nature. However, a major restriction is that a person cannot become a qualified cohabitant if married to someone else.
THE REDRESS SYSTEM
A cohabitant must be financially dependent to enable him/her to get the benefit of the Act. Where a qualified cohabitant satisfies the Court that he/she is financially dependent on the other cohabitant, and that the financial dependence arises from the relationship or the ending of the relationship, the Court may make certain Orders. The Court is obliged to have regard to certain factors, including:
- The financial circumstances of the parties
- 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 children
- The duration of the relationship
- The contributions made by each cohabitant
- The effect on the earning capacity of each cohabitant on the responsibilities assumed by each of them during the period they lived together
- Any physical or mental disability
- The conduct of the cohabitants where it would be unjust to disregard it.
ORDERS THAT A COURT CAN MAKE
In determining what Orders, if any, that a Court may make, the economic dependency of the claiming partner is the key factor although the other factors as listed above are also taken into consideration by the Court. A Court can make an Order granting release to a financially dependent cohabitant such as Compensatory Maintenance Orders, Pension Adjustment Orders and even Orders for Provision from the Estate of a deceased cohabitant.
It is possible for the cohabitants to opt out so to speak from the provisions of the Act where they enter into a valid Cohabitants’ Agreement which must be in writing and both parties must take independent legal advice before the signing of it.
It will be interesting to see what the long term effects of this Act will be on our Society and the degree to which the Rights created under the Act will be used by cohabiting couples who cease to be cohabitants in time.