A Cohabitation Agreement can allow parties to put a plan in place by outlining their financial arrangements, assets, and maintenance in the event that their relationship breaks down. This can include contracting out of the legal redress scheme available to qualified cohabitants. The remedies available under the redress scheme can include Property Adjustment Orders and Maintenance Orders. The objective of the scheme is to provide a safety net for a financially dependent member of the couple. When entering into a Cohabitation Agreement, both parties must either receive independent legal advice or waive their rights to same.
In order to bring a claim under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the applicant must prove that they are a qualified cohabitant. A qualified cohabitant relates to members of couples who are financially dependent on the other cohabitant and have been in a committed relationship for five years, or two years if they have children.
Generally, a Cohabitation Agreement will take precedence over the redress scheme for qualified cohabitants. However, the court may intervene and vary the agreement if enforcing same would lead to injustice.
For example, if one of the parties has a very substantial salary, the court will take that and the circumstances of the other party into account. If one of the parties is unemployed, the court may find it unjust to uphold the agreement irrespective of whether they have made contributions to the property. Another factor which would be taken into consideration would be the likelihood of the dependent party securing alternative accommodation in the event that the court upholds the Agreement.
It is important to note that the burden is on the qualified cohabitant who is seeking relief to satisfy the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the ending of the relationship. Even if the first test is satisfied, the court may uphold the Cohabitation Agreement if there is no risk of injustice.
In short, the law surrounding cohabitation is very complex with limited case law, and ultimately it is in the hands of the court on whether a Cohabitation Agreement should be upheld.
For further information on this or any other family law matter please contact Brendan Dillon, Emma Dillon, Alice Downey, or Simone Murray on 01 296 0666.
