Cohabitees: Legal Rights and Protections
Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provides certain legal rights and protections to cohabiting couples in the event of the breakdown of a relationship or death which enables them to seek redress from the Courts.
Who is a Cohabitant?
A cohabitant is one of two adults (whether of the same or opposite sex) who live together 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.
In determining whether two adults are cohabitants, the Court will consider all the circumstances of the relationship including:
– The duration of the relationship
– The basis on which a couple live together
– The degree of financial dependence of either adult on the other
– The degree to which the adults present themselves to others as a couple.
Who is a Qualified Cohabitant?
To be entitled to apply to court for the reliefs contained within the Act a person must establish that he or she was living with another adult as a couple for a period of at least five years, or two years where they are the parents of a child, immediately before the time that that relationship ended, whether through death or separation.
The Court has confirmed that the period of cohabitation must be a continuous one without breaks in the relationship. While the court has recognised that the concept of living together as a couple does not require two persons to physically live together at all times in the same shared premises and that there are certain factors in life which may necessitate periods apart such as work commitments or ill-health, the court has been clear that any periods spent apart should not flow from a breakdown in the relationship.
Can you be a Qualified Cohabitant if you are married?
If one or both adults is married to someone else at any time during the relationship, in order to qualify as a cohabitant, each adult must have lived apart from their spouse for a period of at least four years during the previous five years at the time the cohabiting relationship ends.
Redress Scheme
Once a person comes within the definition of a Qualified Cohabitant, a person can apply to the court for a range of financial reliefs, namely, Compensatory Maintenance Orders, Property Adjustment Orders and Pension Adjustment Orders.
The entitlement to the relief sought is not automatic and a Qualified Cohabitant must be able to satisfy the Court that he or she if financially dependent on the other Cohabitant arising from the relationship or the ending of it.
A Qualified Cohabitant can also apply for provision out of the net estate of his or her deceased cohabitant under section 194 of the Act. The Court may make provision for the person if it is satisfied that proper provision in the circumstances was not made for him or her during the lifetime of the deceased.
Are there any Time Limits for bringing a Cohabitation Claim?
Yes – there is a strict time frame in place which individuals should be conscious of when considering whether to take legal advice. An application to the court for redress under the Act must be made within two years, from the time that the relationship ends, whether through death or separation. An extension of time is only permitted by the court in exceptional circumstances.
Further, an application to the court for provision out of the net estate of deceased cohabitant must be made within 6 months after representation is first granted under the Succession Act 1965.
Cohabitation Agreements
A cohabiting couple may enter into a Cohabitation Agreement to regulate their finances during their relationship or upon its ending. A Cohabitation Agreement will only be valid in the eyes of the law if both cohabitants have:
- Received independent legal advice before entering into it or
- have received legal advice together and have in writing waived their right to independent legal advice.
A Cohabitation Agreement must be in writing and signed by both cohabitants.
A Cohabitation Agreement may provide for an ‘opt-out’ measure insofar as it may provide that neither cohabitant can apply for redress under the 2010 Act in the event of separation or death.
If you wish to obtain any legal advice in relation to the foregoing, please do not hesitate to contact Brendan Dillon, Erika Coughlan or Aoife Cathcart on 01 296 0666.
