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  • Cohabitation Legislation - Safety Net or Trapdoor

    March 17, 2014
    With close to 80,000 cohabiting couples in Ireland, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 will have far reaching implications for cohabitants once commenced. The Act was signed into law in July this year and awaits commencement by way of Ministerial Order. It is anticipated that the commencement of the Act will follow this year's Finance and Social Welfare Bills.

    The Act provides for discretionary redress and relief for cohabiting couples meeting the qualifying criteria.

    Qualifying Criteria

    Qualified cohabitants are cohabitants (both same or opposite sex) residing together as a couple in an intimate and committed relationship for a period of five years or more or two years or more where they are parents of one or more dependent children. Of note the child must be a child of the cohabiting couple and not a child of another relationship. Any cohabitation period prior to the commencement of the Act will be included in establishing the cohabitation periods. However if a relationship ends prior to the commencement of the Act, any application for redress is prohibited.

    The redress scheme will not be available for cohabitants if:
    • One or both of the adults is or was at any time during the relationship concerned an adult who was married to someone else and;
    • At the date the relationship concerned ends each adult who is or was married has not lived apart from his or her spouse for a period or periods of at least four years during the previous five.

    Redress Scheme

    Wide ranging redress orders may be made by the Court if an applicant establishes that they are financially dependent on the other cohabitant and that such dependency arose because of the relationship or the ending of the relationship. The reliefs include Compensatory Maintenance Orders, Pension Adjustment Orders, Property Adjustment Orders and provision from the estate of a deceased cohabitant.

    The Act does not provide for a right on cohabitation to arise automatically rather a right to apply to the Court for relief.

    Cohabitants' Agreement

    The Act provides that an agreement may be entered into by the cohabitants to provide for property and financial matters during the relationship or when the relationship ends. Authorisation is also given to cohabitants to opt out of the application of the redress scheme by written agreement. The Act sets out the various factors to be taken into account in determining the validity of a Cohabitants’ Agreement: -
    • Both cohabitants must receive independent legal advice before entering into the agreement or receive legal advice together and waive in writing the right to independent legal advice;
    • The Agreement must be in writing and signed by both cohabitants; and
    • There must be compliance with the general law of contract.
    The Act also provides that “exceptional circumstances” may justify a court in varying or setting aside the Cohabitants’ Agreement. For this reason until such time as the Act is commenced and case-law emerges we are advising clients who wish to enter into Cohabitants’ Agreements to obtain separate legal advice and to provide full disclosure by way of Affidavit of Means.

    Seeking Legal Advice

    For cohabitants who wish to regulate their financial and property affairs by way of agreement or who wish to opt out of the application of the redress scheme, please complete our make an appointment form.

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