Cohabiting and Your Rights in Ireland19th Jul 2016
Ireland has adopted a more progressive legal regime regarding the financial rights of unmarried couples in comparison to both England and Wales.
The introduction of the Civil Partnerships and Certain Rights and Obligations of Cohabitants Act 2010 in Ireland on 1st January 2011 meant that cohabiting couples were no longer treated as strangers in the eyes of the law. However there had been some exceptions prior to the Act regarding Domestic Violence Act 1996.
Cohabitants may now seek both maintenance for themselves along with maintenance for any dependants from the relationship.
There are certain criteria which must be met in order to avail of any rights under the Act. The cohabitant must prove the following to the Courts:
- They were in an intimate and committed relationship
- They were qualified cohabitants
- There is a financial dependence on one part of the cohabitant and it arises from this relationship or the ending of same
- It would be just and equitable for the court to make an order for redress in all circumstances
What is a Qualified Cohabitant?
In order to apply for redress you must be a qualified cohabitant, that is, you must have been:
- A cohabitant for at least 5 years or
- A cohabitant for 2 years if you have had a child with your partner
However, if one of you is still married, then neither of you may be a qualified cohabitant until the married person has been living apart from his/her spouse for at least 4 of the previous 5 years – in effect, until he or she is entitled to seek a divorce.
The redress arrangements applies only to those qualified cohabitants whose relationship ends after the Act commenced on 1 January 2011, but the time spent cohabiting before that may also be taken into account.
The reliefs available for qualified cohabitants are maintenance, property adjustment orders (but not for sale), pension adjustment orders and the provision for a cohabitant from the estate of the deceased cohabitant.
There is a two year time frame in which one can apply to the courts for relief. This two year clock begins once the relationship has ended and where both cohabitants are alive.
There is a six month time frame in order to make an application seeking provision from the estate of a deceased cohabitant. This six months begins once an application for Probate has been submitted.
If a relationship breaks down and a cohabitants name is not on the title deeds to the house, they may still be able to show that they have some ownership rights in relation to the property. These rights are based on the fact that the cohabitant has made a contribution to the purchase price of the property with the intention of gaining a share in the ownership of the house.
Contributions to the purchase price of the house can be direct or indirect. Direct contributions include contributions to the initial down payment for the property or contributions to the mortgage installments. Indirect contributions may include paying some of the other day-to-day household expenses or unpaid work in the legal owner of the house’s business.
**It has been held by the courts that working in the home looking after children and money spent or work done on home improvements are not contributions that give you any right of ownership in relation to the house.
Usually, where one can show that they have made a contribution to the purchase price of the house, the cohabitant will then be entitled to a share in the property in proportion to the contribution made. As well as showing that as a cohabitant they made a financial contribution to the purchase price of the property, they must also show that this contribution was made with the intention of gaining a share in the ownership of the house and that they were not making a gift of the money to the legal owner of the house.
Redress orders and tax
Any maintenance payment ordered by the court is classed as your income and you will have to pay tax on it. The amount of the maintenance payment is allowed as a deduction from the income of your former cohabitant.
Where a property adjustment order is made, there are no capital gains tax, gift or inheritance tax issues for either of you on the transfer, and no stamp duty is therefore payable. However, when the property is disposed of, the total period of ownership of the property by both of you is taken into consideration for the purposes of determining whether any capital gains tax is payable on the later disposal.
With the introduction of the Children and Family Relationships Act 2015, cohabitant fathers may now be automatically appointed guardians by the court. This award can be made when the court is happy that the cohabitant father has satisfied certain residency requirements. This also allows for cohabitants whom are not the biological father of their partner’s children to apply for guardianship. This will also hold cohabitant guardians liable for maintenance after appointment of same.
We here at Doherty Solicitors, Ennis have dealt with numerous cases under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and should you have any queries in relation to same please feel free to make an appointment to discuss the matter further.