Radical changes for both same-sex and opposite sex couples
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the Act”) was signed into law on the 19th of July 2010, and came into effect on the 1st January 2011, however the legislative changes to give effect to the taxation changes arising from the Act were deferred. It is now expected that the legislation will be put before the House shortly as a Bill or as part of a Finance (No. 2) Bill 2011.
For the first time in Ireland, same – sex couples are given rights, entitlements and obligations similar to married couples. From April 1st gay and lesbian couples can now have Civil Partnership Ceremonies, on giving the usual three month notice to the General Registrar Office. Between January 2011 and April 2011, same sex couples who wished to have their Civil Partnership registered had to apply to the High Court seeking a special exemption from the three month notice period. There has been much public debate that the new rights and entitlements given to same sex couples are not as “strong” as those given to married couples. This theory stems from the fact that same sex couples have been given separate legislation and separate arrangements as regards Civil Partnerships and the manner in which these Civil Partnerships may be dissolved.
While there has been much publicity about civil registration of same sex partnerships, the Act has also introduced radical changes to the legal status of unmarried couples, both same-sex and opposite-sex. Contrary to some public belief that “common law spouses” have some rights, this is not the case. Prior to the passing of the Act, unmarried couples had no legal rights or entitlements to lay claim to the assets or estate of their partner. The Act creates rights for these individuals. The result being that living with a partner is no longer a legal free zone.
The Act deals separately with both the civil registration of same-sex partnerships (Civil Partnership) and the rights and duties of cohabiting couples.
The main effects of the Act are:
1. To create a new legal relationship of civil partnership for same-sex couples who choose to register their relationship, which may end only on the death of a partner or dissolution by a court;
2. To make detailed provision for the formalities and procedures for registration of civil partnerships; and
3. To give legal effect to a range of property, financial and other rights and entitlements consequent on civil partnership to include provision for maintenance, protection of shared homes, inheritance entitlements and pension provision.
Upon dissolution of a Civil Partnership, the courts will have power to make a number of extensive preliminary and ancillary financial relief orders (similar to those currently available upon Judicial Separation or Divorce). These include maintenance, property adjustment orders, orders for the sale of property, pension adjustment orders and orders making provision out of the Estate of a civil partner or blocking such provision. As with separation and divorce, the orders to be made will depend upon what constitutes fair or proper provision in all the circumstances of the case.
The Act also introduces inheritance rights for civil partners which are equivalent to those of spouses, with regard to both a legal right share on testate succession and rules for distribution on intestacy.
At the time of writing this Article certain sections of the Act have not been commenced. At present the Act is silent on the tax and social welfare treatment of civil partners. A further failing in the Act is that is does not deal with children dependant on and living with same sex couples.
For cohabiting couples (both opposite-sex and same-sex couples, who are either unmarried or not registered in a civil partnership), the Act will now impose certain rights and obligations upon these individuals, unless the couple specifically choose to” opt out” of these protections.
The Act establishes a “redress” or “safety net” scheme for cohabiting couples. The aim of the Redress Scheme is to protect an economically dependent or vulnerable party at the end of a long-term cohabiting relationship, whether arising on relationship breakdown or on death. It allows “qualified” cohabitants to apply to court for certain reliefs, including property adjustment orders, compensatory maintenance orders, pension adjustment orders and orders for provision from the estate of a deceased cohabitant.
Again no provision for tax or social welfare reliefs has been made as of yet for cohabiting couples under the Act, as passed.
Who is a qualified cohabitant?
A qualified cohabitant under the Act is a person who has lived with another (whether of the same or of the opposite sex) as a couple in an intimate and committed relationship and not related to one another for 2 years or more in the case where they are the parents of one or more dependent children or 5 years of more, in any other case.
A qualified cohabitant is not considered a qualified cohabitant if:
In order to seek redress from the courts, the qualifying co-habitant must satisfy the court that he or she is financially dependant on his/her partner. The court in these circumstances can make the following orders:
Pension Adjustment Orders (a right to a share in your partner’s pension).
Property Adjustment Orders (which includes a share in property, notwithstanding one party may not be the legal or registered owner of the property).
A share in the other partner’s estate on death.
Similar to Divorce or Judicial Separation the court will take into consideration:
(a) The financial circumstances of each of the partners,
(b) The financial contributions made by each of the partners
(c )The conduct of each partner, if in the opinion of the court, it would be unjust to
disregard such conduct,
(d) The length of the relationship and
(e) The rights and entitlements of dependant children before making any of the above orders.
Any applications under the Redress Scheme would be dealt with in the family court and would be entitled to be held “in camera” which means in private.
The Act also makes express provision for the recognition of Cohabitant Agreements enabling (and encouraging) cohabitants to regulate their joint financial affairs and also enabling couples, where they may so decide, to specifically “opt out” of the Redress Scheme in their particular circumstances.
As seen above the Act heralds radical changes for both same-sex and opposite sex couples and makes available certain financial and property reliefs following the breakdown or end of their relationship.
Some may argue that the Act did not come far enough, especially given the fact that the Act does not deal with children dependant on and living with same sex couples.
There is also a lot of confusion on the “Cohabitant” section of the Act. It will be interesting to follow how the Court shall determine whether a couple are in “an intimate and committed relationship” for the purpose of establishing whether they are qualified cohabitants under the Act. There is also confusion over whether rights on cohabitation arise automatically. This is not the case. It is merely a right to apply to Court for relief. However, the reality is that living together will no longer be a legal free zone. The provision for cohabiting couples to “opt out” of the Act is most important and worthy of consideration. We would encourage cohabiting couples to consider making a Cohabitant’s Agreement and we would be happy to advise you and draft such an agreement if you so require.
We would be happy to discuss any of the above issues with you in more detail.
Contact: Catherine - email@example.com