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27 Nov 2021

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Cohabitation Explained: What are your rights? by Lynch Solicitors

Cohabitation Explained: What are your rights? by Lynch Solicitors

Cohabitation Explained: What are your rights? by Lynch Solicitors

Cohabitation: What are your rights? 

Do you have any rights at the end? The Cohabitants Act

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 deals with what happens if a cohabiting relationship breaks down.

Up to the 2010 Act, couples who were cohabiting (even for many years) acquired no automatic property rights, no rights of occupation in the property which was their home, no financial support, no maintenance, no pension or no inheritance rights for a partner.

There are a great variety of people who live together and can, probably, be grouped in these categories:

  • The casual cohabitants who drift into living together 
  • Those living together as forerunners to marriage 
  • The conscientious objectors to marriage 
  • The battle scarred, separated and divorced persons who do not want to commit again 
  • Those who live together because they could not marry (pre-divorce) 
  • Those who believe that they are married to each other after a foreign divorce 

Who is a Cohabitant?

A cohabitant is one of two adults (whether of the same or the opposite sex) who 'live together' as a couple in an 'intimate and committed relationship'. 

They must not be in a prohibited degree of relationship (e.g. sibling, first cousin), married or civil partners of each other.

Each case will raise questions of fact, such as: Were the parties living together? Was the relationship intimate and committed? How long was the relationship? And when did it end? 

The relationship must be more than a 'mere friendship' or dating relationship, but the parties do not have to be living 'physically at all times in the same shared premises'. 

'Intimate and committed' means that the parties must be, or must have been, sexually intimate. The Court will look at the checklist set out in the Act, such as the length of the relationship and financial arrangements. However, the degree of shared activities, household chores and shared holidays can also be accepted as proof of an intimate and committed relationship. 

How long do you have to be living together to qualify as a cohabitant?

To avail of the Act, you must be a 'qualifying cohabitant'. This means cohabiting for:

  • Two years, if you have dependent children

or

  • Five years, in any other case 

The period of cohabitation has to be one continuous period and cannot consist of a number of periods.

A couple will not qualify if they cannot marry because they are not divorced or entitled to be divorced.

What can a cohabiting partner expect?

The Redress Scheme

A qualified cohabitant must prove that they are financially dependent because of the relationship or the ending of it.

If the Court is satisfied that it is 'just and equitable,' it may make certain financial orders, such as a transfer of property, maintenance or pension payments.

In making a decision, the Court will look at:

  • The financial needs and obligations of each person 
  • The entitlements of any prior spouse or civil partner 
  • The entitlements of any dependent child of a previous relationship 
  • The duration & basis of the relationship and the degree of commitment to one another 
  • The contributions made, including any contribution made to the income and earning capacity of the other 
  • Any contributions made by either of them in looking after the home 
  • The effect on the earning capacity of each cohabitant of the responsibility assumed by each of them 
  • The extent to which the earning capacity of one may have been impaired by reason of having relinquished or foregone opportunity to look after the home 
  • Any physical or mental disability of the qualified cohabitant 

and

  • The conduct of each of the cohabitants, if conduct is such as it would be unjust to disregard it.

Is there a Statute of Limitations? How long do I have?

Where the relationship breaks up, a claim must be made within two years.

If one of the cohabitants dies within the two years of the relationship ending, the surviving partner has a further six months for looking after the legal formalities (called: 'the taking out of Representation') to make a claim. 

The Cohabitants Agreement - Can we agree without going to court?

The Act provides that cohabitants can enter into a Cohabitants' Agreement on financial matters during or at the end of the relationship.

This is an encouragement to couples who do not want to marry or register a civil partnership to take control of their own arrangements.

A Cohabitants' Agreement must be in writing and signed with legal advice.

Are you cohabiting? Can we help?

It is always advisable to have agreements on a relationship  - business or otherwise.

It can concentrate minds at the time and prevent problems if the relationship ends. 

For more information, go to www.lynchsolicitors.ie

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