It has been long established that unmarried couples do not have the same rights and obligations as married couples or civil partners. However, some rights may now arise from the relationship if the couple are qualified cohabitants.
The commencement of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the Act“) which came into effect on the 1st January 2011 is a milestone in Irish law as it extends the categories of relationship to whom the law affords protection to.
The Act defines “cohabitants” as two same sex or opposite-sex adults who are:
- Not married to each other and not in a civil partnership;
- Not related; and
- Living together in an intimate and committed relationship.
In determining whether or not two adults are cohabitants, the court will also take other factors into account, as set out in the Act, including the duration of the relationship, the degree of financial dependence of either adult on the other and any agreements in respect of their finance.
A qualified cohabitant is afforded protection under the Act. A cohabitant is deemed to be a “qualified cohabitant” if they have lived together in an intimate and committed relationship immediately before the time the relationship ended, whether through death or otherwise, for a period of at least five years if they have no children or no less than two years if they have children together.
At the end of a cohabiting relationship, a qualified cohabitant may avail of the Redress Scheme under the Act which provides protection for a financially dependent cohabitant. This means they can apply to the Court and the Court can make orders broadly similar to those available to married couples when they separate or divorce. If one cohabitant dies, the surviving cohabitant can apply to Court for provision from the estate of the deceased cohabitant under the Redress Scheme.
Any person who is a qualified cohabitant may apply to court for one or all of the following orders when the cohabitation ends:
- a property adjustment order relating to any property in which the cohabitant has an interest either in possession or reversion;
- a compensatory maintenance order against the other cohabitant – both periodic and lump sum;
- a pension adjustment order in respect of the pension of the other cohabitant; and
- provision from the estate of the deceased cohabitant.
Any such proceedings must be issued within two years of the relationship ending where cohabitants are both alive or no more than six months after the Grant of Probate issues in the case of a deceased cohabitant.
Any gift or inheritances taken by a qualifying cohabitant under the Redress Scheme made pursuant to a court order are exempt from CAT.
An adult who would otherwise be a qualified cohabitant is excluded from the Redress Scheme if either of the co-habitants was married to someone else and has not lived apart from their spouse for a period of at least 4 years during the previous 5 years.
Should a cohabitant find themselves in a situation where their partner has died and they do not qualify under the Redress Scheme then they will be treated as strangers in blood from their partner for Capital Acquisitions Tax (“CAT”) purposes in terms of any inheritance. The current CAT amount a person (who is a stranger in blood) may inherit without incurring a tax liability is €16,250 (assuming they have not previously ‘used’ their threshold on a prior gift or inheritance). Anything above this threshold will be taxed at 33%.
This situation is drastically different to that of a married couple or civil partners where gifts or inheritances between spouses would be exempt from CAT. Also the surviving spouse possesses a unique importance because of the provisions of the Succession Act 1965 whereby a spouse can make claim to a legal right share.
If a qualified cohabitant dies without making a will, their partner has no right to any share of their estate irrespective of how long they have been together unless they make an application under the Redress Scheme (apart from what was held jointly such as joint bank accounts, joint property etc.).
In short, it is therefore of vital importance that you draw up a will to ensure that your assets and property are distributed in accordance with your wishes and to safeguard joint or intended joint assets of cohabitants on death if you are not married or in a civil partnership.
Please contact Aine Quinn, in the Real Estate Department of BHSM on 01 440 8300 and email@example.com for further information.
This article is for general information purposes. Legal advice must be obtained for individual circumstances. Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.
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