Cohabitation Rights

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, gives wide ranging rights and obligations to same sex and cohabiting couples. Cohabitant is the legal term used for couples who are not married, but live together.

The legislation allows unmarried cohabitants to apply to court for maintenance, pension adjustment orders, property adjustment orders or a share in the estate (assets) of a cohabitant who has died.

The law in this area is highly complex and if you are affected by this legislation, it is important that you seek professional advice from a family law solicitor as soon as possible in order to establish what your next steps might be.

In order to qualify as a cohabitant the following criteria apply:

1. Cohabitants can be an opposite or same sex couple who are:

• Living together in an intimate and committed relationship. The couple must be living together for five years.  This is reduced to two years if they have children together;
• Not married to each other;
• Not registered in a civil partnership; and
• Not in the prohibited degrees of relationship.

2. If a cohabitant is still married he or she must be living apart from his/her spouse for at least four out of the previous five years to come within the legislation.

To decide whether a person was part of a cohabiting couple, the Court will also consider:

• The contributions of each person in looking after the home.
• The earning capacity of each partner, and financial dependence of either partner on the other.
• The degree to which they presented themselves to others as a couple.
• Whether there are children.

Orders that the Court can make:

If a Court decides that a person was part of a cohabiting couple, it can make a number of orders with a significant impact on both sides.

These include:

• Property adjustment orders.
• Maintenance orders.
• Pension adjustment orders.
• Orders in relation to an estate. When a cohabitant dies, the surviving cohabitant can apply for provision out of the deceased’s estate within six months after probate or administration is granted.

Time limits

If a person is seeking an order under the legislation, he or she must apply to the Court within two years of the relationship ending.

Because of this short time-frame, a person who may qualify as a cohabitant should seek legal advice as soon as possible after a relationship ends.

Cohabitation Agreements

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, provides that cohabitants may enter into a cohabitant’s agreement to regulate financial matters during the relationship and crucially when the relationship ends, whether through death or otherwise.

This legally binding document can provide that neither cohabitant may apply to the Court for a property adjustment order, a compensatory maintenance order or a pension adjustment order or for provision out of the estate of the deceased subject to the Court’s power to vary or set aside a cohabitant’s agreement in exceptional circumstances where enforcing the said agreement would cause serious injustice.

In order for such an agreement to be valid, both cohabitants must obtain legal advice, and ideally independent legal advice, prior to entering into the cohabitation agreement.  The cohabitation agreement must be in writing and signed by both cohabitants. It is now vital for cohabiting couples to give thought to a cohabitation agreement, keeping in mind the effects of the Civil Partnership Act 2010.

Please contact our family law solicitors David by email at davidhiggins@berwick.ie or Lorna at lornahrehorow@berwick.ie or by telephone on 091 576545 for confidential and impartial advice or any questions and queries that you may have in relation to a cohabitation agreement.