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The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was signed into law on the 19th July 2010. The ministerial order was signed on the 24th December 2010, and it will come into effect on the 1st January 2011. As well as conferring tax benefits on Cohabiting couples either of the same or opposite sex, the new act also confers property rights on “qualifying cohabitants.”
A qualifying cohabitant is defined as a person who has lived with another for 2 years or more in the case where they are the parents of one or more dependent children, or 5 years or more, in any other case.
As the law currently stands, living with another person does not confer any rights or responsibilities on either party, however when the act comes into force a qualifying cohabitant will have the right to seek redress from the courts in a manner not unlike what is currently available to married couples.
If a qualifying cohabitant can satisfy the court that he or 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 order:
- That property be transferred from one party to the other
- That maintenance be paid,
- That a pension adjustment order be granted,
- That a cohabitant be provided for from the estate of a deceased cohabitant where one is deceased
In making these orders the court must consider:
- The financial circumstances, needs and obligations of each cohabitant existing as at the date of the application or which are likely to arise in the future,
- The rights and entitlements of any spouse or former spouse, civil partner or former civil partner,
- The rights and entitlements of any dependent children
- 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,
- The financial contributions that each of the cohabitants made or is likely to make in the foreseeable future
- Any contributions made by either of them in looking after the home,
- 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 a cohabitant may have forgone their career.
- Any physical or mental disability of the qualified cohabitant, and
- 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.
An application will generally have to be brought within two years of the relationship ending, and will be brought through the Family Law Courts, so proceedings will be held in private. The matter of Legal costs will be for the Court to decide in each instance.
Those wishing to avoid the effects of the new Act will need to enter into a cohabitants’ agreement.
To be valid such an agreement will need to comply with the following:
- Each party will need have each received independent legal advice before entering into it, or have received legal advice together and have waived in writing the right to independent legal advice,
- The agreement is in writing and signed by both parties, and
- The general law of contract is complied with.
The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice.
The legislation provides that an agreement entered into before the Act comes into force will be valid, and that the period for which people lived together prior to the commencement of the legislation will be reckonable for determining if a couple are to be deemed “qualifying cohabitants.”
If you would like to enquire further as to the effect of Civil Partnership, please contact Peter O’Hanlon at 021 4824426 or
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