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Important High Court decision on Living Apart for Cohabitants

By February 27, 2023June 26th, 2024No Comments

Important High Court decision on Living Apart for Cohabitants

It is generally well known that in order to establish a claim under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (‘the Cohabitants Act’) an applicant must be able to show that they have been left in a position where they are economically vulnerable following the ending of a relationship and that they were a qualified cohabitant i.e. that they had lived with the person for whom they are making the claim for at least 5 years, or 2 years if they had children together.

What is not as well known is the fact that in certain circumstances a cohabitant’s arrangement may come into place where one of the parties remains married. In those circumstances the claimant must also prove that the person against whom he or she is now claiming had lived apart from their spouse for 4 out of the 5 previous years.

This was the subject matter of a recent decision of Judge Max Barrett in a case of Z v Y, in which Judge Barrett had to assess whether the claim was defeated by reason of the fact that the husband was still living with his wife. Mr X was still married to his wife (Y) but was in an extramarital relationship with his partner (Z). Mr X died while he was still married to Y and in an relationship with Z.

The issue before the court was to determine the nature of his continuing relationship with his wife and by extension Ms Z.

It was accepted in evidence that X and Y as a couple had slept in separate bedrooms throughout their marriage. When Mr X began his relationship with Z, he developed a ritual where he would wake up in the family home, open up his office which was attached to the family home, then call to Z’s house and bring her to work, then return to the office beside the family home and would then collect Z from work in the evening, bring her to her house, dine together and then would return to the family home late in the evening, very often as late as 1am. It was also accepted that X and Y attended social functions together such as birthdays or weddings, although it is also the case that X attended certain social occasions with Y and represented them to be a couple.

Having heard and considered the evidence Mr Justice Barrett held that the applicant fell short of establishing that she was a ‘qualifying cohabitant’ within the meaning of section 173 of the Cohabitants Act because she could not establish that the deceased had separated from his wife for 4 of the previous 5 years.

In its decision, the Court noted that the deceased’s marital home was with Y and that they had had intimate relations not withstanding their difficult marriage overall. The court stated that it could not conclude that the deceased had lived apart from Y for the requisite period of 4 of the previous 5 years to establish qualified cohabitation to Z. Further the Court could not see how X and Z were ‘living together’ within the meaning of section 172 of the 2010 Act.

Interestingly the Court also noted that Z did not appear to be financially dependent on X and that it did not appear that he made any provision for her in the event of his death.

In these circumstances the Court refused to make a declaration that Z was a qualified cohabitant of the deceased and entitled to some provision out of his estate.

This case highlights that there are many elements of the 2010 Act that must be satisfied in order for a successful claim to be made under the Act and all these factors must be carefully considered. This case certainly supports the view that the courts in circumstances where a party is having an extra-marital relationship that this will not automatically be deemed sufficient evidence that the party having the extra-marital affair was not still living together with his/her spouse.

For further information on any issues relating to cohabitants or indeed family law matters, please do not hesitate to contact Brendan Dillon or Erika Coughlan on 012960666.