Serious issues need to be clarified with law relating to unmarried cohabitating couples
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
The name of the Act itself gives an indication that the Act is divided into two halves. The first part of the Act dealing with Civil Partnership is relatively straightforward and clear. Same sex couples can enter into civil partnerships and then have virtually all of the same rights and obligations as married couples. However, the second part of the Act which has created “certain rights and obligations of cohabitants” is not as clear. This new second tier of rights and obligations that have been created is a new area of Family Law and will cause extensive litigation, which will have to be interpreted by the Courts.
Can you be married and be a cohabitant?
An example of the type of problem the Act has created is in the definition “qualified cohabitant”. S.172(1) of the Act states the following:
“For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other”
The Act then goes on to say at S.172(4)
For the purposes of this section, two adults are within a prohibited degree of relationship if-
(a) They would be prohibited from marrying each other in the State.
This means that if you are currently married in Ireland then it is not possible to be a qualified cohabitant within the meaning of the Act.
However, the Act then goes on to specifically contradict this section by stating the following:
S.173(1)(2)(3) A qualified cohabitant may apply to the court and if the court is satisfied that it is just and equitable to do so, the court may make certain orders. In determining whether it is just and equitable the court should have regard to the rights and entitlements of any spouse.
S.173(5) states that the court shall not make an order referred to in this section in favour of a qualified cohabitant that would affect any right of any person to whom the other cohabitant is or was married.
You can see how this will cause confusion and how a married person could argue that they cannot be deemed a qualified cohabitant, in order to avoid paying maintenance to a cohabitant after the relationship breaks down. This will have to be clarified by the courts as cases arise.
What is finanancial dependence?
Another aspect of the act that will cause difficulties is the definition of ‘financial dependence’. The Act states that if the qualified cohabitant satisfies the court that he or she is financially dependent then the court can make certain orders. There must be proof of financial dependence. This new barrier to obtain redress shows that a cohabitant has a lower tier of rights than a married couple or civil partnership. In time, the court will have to determine what is financial dependence.
This means that for umarried couples and those not in a civil partnership the onus will be on the cohabitant to prove that they are financially dependent on the other person in order to avail of proposed redress such as Maintenance Orders or Property Adjustment Orders
In time, the court via cases that arise will have to determine what is deemed as financial dependence.
The problems with the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 stems from the fact that it was rushed into law towards the end of the previous government’s term. All parties were agreeable to the Act being introduced and this may explain why the act was not properly refined.
If you or somebody you know has separted from their partner after living with them for over five years (without childen), or 2 years with children, then that person may be entitled to obtain redress from their former partner, such as maintenance similar to if they were married to them, or other aspects depending on their circumstances. If you would like to discuss this further then please call us on 014545000.
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