The absence of case law in relation to the rights of qualified cohabitants under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2011 makes it difficult for practitioners to advise clients who are ‘qualified cohabitants’ as to what their rights would be compared to if they were a spouse involved in Judicial Separation or Divorce proceedings.
However, there are some important distinctions that can be made:-
- Section 16 of the Family Law Act 1995/Section 20 of the Divorce Act 1996 sets out the factors that must be taken into account when deciding what amounts to ‘proper provision’, which is the requirement that a court must make when granting a Judicial Separation or Divorce.
Factors contained in Section 16/Section 20 include:
- the length of the marriage,
- the age/health of the parties,
- the number of children, and whether any of them have any health issues,
- contributions made by each party,
- standard of living enjoyed by each party.
This list is not exhaustive, and it gives the Court wide discretion. The focus of the Court is trying to ensure as much as possible that both parties have the right to have some prospect of owning a property in the future and have a reasonable standard of living where at all possible for them and the children of the marriage.
- On the other hand, the provision made for a ‘qualified cohabitant’,. i.e. somebody who satisfies the Court that he/she is financially dependent on the other cohabitant, and that that financial dependence arises from the ending of the relationship, is not entitled to ‘proper provision’, but instead is entitled to redress.
While the Court can make a number of orders, including a Property Adjustment Order, Compensatory Maintenance Order, Attachment of Earnings Order and a Pension Adjustment Order, there are some very clear distinctions between the two sets of legislation.
Under the Cohabitant legislation, the factors that the Court can take into account are much more limited than that under Judicial Separation or Divorce. Secondly, there is no provision in the Cohabitant’s legislation for an order for sale of property.
The Act specifically provides that if redress can be made by way of a lump sum, a Periodic Maintenance Order or Pension Adjustment Order then the Court should do so rather than make a Property Adjustment Order i.e. an order transferring an interest in Property from one Cohabitant to the other.
As such, while there is no High Court case law which assists practitioners in this area, it is clear that the expectations of a ‘qualified cohabitant’ should be significantly less than those of a spouse in similar financial circumstances.
For further advice on this or any other family law matters, please do not hesitate to contact Brendan Dillon, Emma Dillon or Aoife Cathcart on 012960666.
