Cohabitants are defined in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 as two adults (whether of the same or opposite sex) who live together in an intimate and committed relationship and are not married to each other, not in a registered civil partnership, or related within the prohibited degrees of relationship. The legislation introduced rights and obligations for qualified cohabitants in a range of areas including maintenance, inheritance, and property rights. Upon the breakdown of such a relationship either party, if they are deemed to be qualified cohabitants, can apply to the court for redress.
Under the new law parties will be deemed to be qualified cohabitants where they have lived together for at least 5 years or for 2 years where they have a child together.
Qualified Cohabitants can be of the same or the opposite sex.
The parties must not be within the prohibited degrees of relationship to each other, i.e., they must not be related by blood or marriage. They cannot be married to each other, and they cannot be civil partners of each other.
Either party, to be a qualified cohabitant, cannot be married to another person during the course of the cohabiting relationship, except where he/she has not being living with their spouse for a period or periods of at least 4 years during the previous 5 years.
The court must consider a number of factors in determining whether the parties are qualified cohabitants, including:
- The duration and the basis of the relationship.
- Whether there are dependent children, and care arrangements and support for those children.
- Degrees of financial dependence between the parties.
- Financial arrangements between the parties and interests in land or personal property.
- The degree to which the parties present themselves as a couple.
Breakdown of Cohabitant Relationships
Applications can be made to the court for redress in the form of:
- Maintenance Orders
- Property Adjustment Orders
- Pension Adjustment Orders
- Provision from the Estate of a deceased cohabitant
The court in making the above orders, will consider the financial circumstances, the needs and obligations of each cohabitant, the rights of dependent children, the duration and nature of the relationship, and the contributions made by each cohabitant. The court must be satisfied that the applicant cohabitant is significantly financially dependent on the other cohabitant and that dependence arises from the relationship or the ending of the relationship.
Cohabitants may enter into an agreement with each other providing for financial matters during their relationship, or when the relationship ends, through death or otherwise. This agreement can allow the parties to avoid their obligations under law.
The Cohabitation Agreement will be valid where both parties have independent legal advice, where the agreement is in writing and signed by both parties, and where the general law of contract is complied with.
The Agreement may provide that neither cohabitant can apply for redress to the court under the 2010 Act. The court can set aside a Cohabitation Agreement where serious injustice might arise.
Cohabitants do not have to enter into a Cohabitation Agreement.
Rights of Cohabiting Couples in respect of any children
Because parties in a cohabiting relationship are not married, rights in respect of children are limited, as the non-marital family is not recognised by the Irish Constitution. The biological mother has automatic guardianship and custody rights in respect of her child. The unmarried father has automatic guardianship rights only where he has lived with the child’s mother for 12 consecutive months (after the 18 January 2016) including at least 3 months after the birth of the child.
If both parents sign a statutory declaration the father can become a joint guardian. For further information, click here.
Where one of the parties involved is not the biological parent, the court can appoint him/her as a guardian where they have cohabited with the child’s parent for over 3 years and the person has shared responsibility for the child’s day-to-day care for more than 2 years. This provision will also apply to same sex cohabiting couples.
Since the introduction of the Children and Family Relationships Act 2015, a cohabiting couple can jointly adopt a child where they have been living together in a relationship for a minimum of 3 years. This came into effect via the Adoption (Amendment) Act 2017. The rights of a cohabiting couple in respect of their child are now the same as those of a married couple and their adopted child.
The Citizens Information website provides very comprehensive information on many of the key issues arising for cohabiting couples in light of the significant new rights and responsibilities now automatically arising. This information outlines the rights and responsibilities of cohabitants in a range of areas, including maintenance, custody of children, property rights, and inheritance rights. The adoption process as it applies to cohabiting couples is also explained.
In respect of the impact of cohabitation on the parenting role, Treoir have also produced a document providing information for unmarried parents.
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