When a married couple separate the issues relating to property rights are governed by the various legislation enacted dealing with separation and divorce. However, the situation is different if the parties are not married.
In this article we set out the issues that arise for unmarried/cohabiting couples when their relationship breaks down.
Before dealing with the issue of property rights it should be pointed out that issues relating to children of a broken relationship between unmarried parents are governed by the Guardianship of Infants Act and maintenance for those children can be dealt with by the Family Law (Maintenance of the Children and Spouses) Act i.e. a party to an unmarried relationship should not be disadvantaged by virtue of not being married as the focus of the court’s attention will be on the welfare and wellbeing of the children and what is in their best interests.
Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
This Act for the first time provided specific rights for cohabiting couples who had been left in a financially vulnerable position arising from the ending of their relationship. The intention of the legislation was to give rights to parties particularly party who has invested significant time in a relationship and as a result of the ending of the relationship is left in a economically vulnerable position, to establish rights to maintenance, property, inheritance and pensions.
There are certain conditions that must be met in order to qualify for relief under the Act. In order to be able to bring a claim under the Act, you must be a ‘qualified cohabitant’. In order to be a qualified cohabitant the couple must have lived together in a loving and committed relationship for a period of 2 years if they have children and 5 year if they do not have children. It is also important to note that a claim under this Act must be brought within 2 years of the ending of the ‘intimate and committed relationship’ of a same or opposite sex couple. This time factor can often be a matter of dispute in such relationships and as such if you believe that you may have a claim and that your relationship ended some time ago, it is important that you obtain legal advice to make sure that you bring your claim within the 2 year period of the ending of the loving and committed nature of the relationship.
In order to be entitled to relief from the Court, in addition to establishing that you are a qualified cohabitant you must also be able to prove you were in ‘intimate and committed relationship’ of a same or opposite sex couple.
It is also important to note that a qualified cohabitant will not be able to bring a claim during the course of the relationship that person was married to someone else and who had not been living separate and apart from his or her spouse for a period of two of the previous three years.
Just because you can satisfy the test for a qualified cohabitant this does not mean that you are entitled to relief under the legislation. The qualified cohabitant must 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’. If this test can be satisfied the court may, if satisfied that it was just and equitable to do so in all the circumstances, make the relevant order in relation to property, maintenance, pensions or inheritance and will take various factors which are taken into account including the length of the relationship, the financial circumstances of each party, the rights and entitlements of any spouse of any spouse or former spouse or civil partner or former civil partner of either party, the rights and entitlements of any children of either party, the contributions that either party made, any physical or mental disability and the conduct of each of the cohabitants i.e. if it would be unjust to disregard such conduct.
There is very little case law in relation to this Act and indeed most of the case law relates to disputes in relation to the time period or arising from the death of a cohabitant rather than the ending of a relationship between the cohabitants. As such, it is difficult to know to what extent the courts will apply the criteria and measures for determining disputes between separating married parties to those of cohabitants.
Cohabitants agreement
One way in which the parties can avoid the uncertainty of litigation under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is entering into a cohabitants agreement. Unlike prenuptial agreements between parties intending to marry which are not yet enforceable in this jurisdiction, cohabitants agreements are enforceable and provided for in the 2020 Act.
What if the couple were engaged?
If the couple were engaged then the parties will be entitled to avail of the provisions of Section 5 of the Family Law Act 1981 which provides that in a situation where the relationship of an engaged couple is terminated then the rules of law relating to spouses in relation to property in which either or both of them have a legal or beneficial interest shall apply in relation to property owned by either of the engaged couple.
This is an important provision and should be borne in mind by the party to an engaged couple. It may well be that decisions have to be made as to which is the most appropriate legislation under which to bring a claim.
Where property disputes are concerned, if the parties were engaged, then the advantage of bringing a claim under the 1981 Act is that the claimant will not have to prove financial dependency on the other cohabitant.
If you have any queries or require any advice in relation to issues on cohabiting couples or engaged couples, please do not hesitate to contact Brendan Dillon or Erika Coughlan on 01 296 0666.
