Cohabitation agreements and cohabitants litigation

Prior to 2010, a couple living with one another in an intimate relationship but unmarried had very limited options to seek redress from the Court when the relationship broke down. In 2010, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was enacted and, for the first time, allowed certain cohabiting couples the right to apply for redress following the breakdown of the relationship.

As a result, parties living in an intimate relationship with another person should be aware that each of them may have the ability to seek Order against the Order at the end of the relationship.  Such orders can include maintenance orders, property transfer orders, pension adjustment orders and provision from the estate of the other person if they die.

Cohabitants should consider protecting their financial interests by entering into a Cohabitation Agreement. This is a written agreement, which can specify the day-to-day joint financial arrangements of the parties and how they will separate those assets if the relationship ends. It can avoid disputes if the relationship ends.

Significantly, the Cohabitation Agreement can exclude the entitlement to seek Orders from the Court under the Act. However, in exceptional circumstances, the court may set aside or vary a Cohabitation Agreement for example, if the enforcement of the Cohabitation Agreement would cause serious injustice to one of the parties.

To be valid, the Cohabitation Agreement should only be entered into after each party has obtained independent legal advice.  The agreement must be in writing and be signed by each party. Other legal requirements surrounding contracts must be complied with.

Couples who live together may be considered in law “Cohabitants”.  The definition of Cohabitants are defined in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 as two same-sex or opposite-sex adults who are:

  • Not married to each other and

  • Not in a registered civil partnership and

  • Not related within the prohibited degrees of relationship and

  • Living together in an intimate and committed relationship

 

Only “qualified” cohabitants can apply to the Court for redress.  To be considered a “qualified cohabitant”, you must have been:

  • A cohabitant (living together in an intimate and committed relationship) for at least 5 years, or

  • A cohabitant (living together in an intimate and committed relationship) for 2 years if you have had a child with your partner

If a qualified cohabitant satisfies the Court that he/she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances, make an order including:

  • Compensatory maintenance order

  • Property adjustment order

  • Pension adjustment order

If one cohabitant dies, the surviving cohabitant can apply for provisions to be made for them out of the deceased’s estate.

Factors the Court must take into account when deciding to make an Order or Orders are provided for in section 173(3) of the Act and are as follows:

  • the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future

  • subject to subsection (5), the rights and entitlements of any spouse or former spouse

  • the rights and entitlements of any civil partner or former civil partner

  • the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant

  • the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another

  • the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other

  • any contributions made by either of them in looking after the home

  • the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home

  • any physical or mental disability of the qualified cohabitant

  • the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it

 

Time limits

There are important time limits to be aware of when considering applying for court orders.  Save in circumstances, an application must be made within 2 years of the end of the relationship.  An application for provision out of a deceased’s cohabitant’s estate must be made within 6 months of an application for a grant of probate/administration.

 

If a Cohabitant marries after certain Orders are made, those Orders may lapse.

Proceedings can be brought in the District Court (with certain limitations), the Circuit Court or the High Court. 

When applying for compensatory maintenance orders, property adjustment orders and/or pension adjustment orders both of the cohabitants must have been ordinarily resident in the State for a year prior to the end of their relationship, and either of the cohabitants must be domiciled in the State on the date on which the application is made, or must be ordinarily resident in the State throughout the one-year period that ends on that date.

Where applying to the Circuit Court, application is brought to the circuit in which a party to the application ordinarily resides or carries on a business, profession or occupation

Significantly, where a Property adjustment order is made there are no capital gains taxgift or inheritance tax issues for either party and no stamp duty is payable. If the parties do not obtain an order but wish to transfer property between them there can be tax consequences which should be carefully considered.

 

If you do not qualify as a cohabitant, a qualified cohabitant and/or an economically dependent cohabitant, but have a property dispute with your ex-partner, you may be able to apply to Court under the Land and Conveyancing Law Reform Act 2009, for Orders determining your interest in the property.