Dramatic and radical changes in Irish Family Law were introduced by the (clumsily named) Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which took effect from the 1st of January 2011. There has been much publicity in the media of the fact that for the first time in Ireland, same sex couples, whose relationships had not previously been given legal recognition by the State, can now formalise their status by registering a legal Civil Partnership. Such registration confers an extensive range of rights, obligations and protections similar to, but not quite the same as, marriage and, since July 2011, similar tax provisions previously available only to married couples.
What has been overshadowed, to a large extent, in all this media hype, is the fact that the Act also introduced radical changes in the legal position of unmarried cohabiting couples – both same sex and opposite sex. Prior to the Act, such couples had little or no legal standing and no claim against the assets of a cohabiting partner, or that partner’s estate on death. This has now been radically altered as we will see below.
The Act deals separately with both civil registration for same-sex partnerships and the new rights and obligations of cohabiting couples.
Subject to strict qualification guidelines, same-sex couples may now enter a legally binding contractual arrangement with each other by registering their partnership with a civil registrar thereby acquiring rights and responsibilities, including the right to live together in a shared home, to support each other financially, inheritance and succession rights, entitlement to pension benefits, maintenance, protection from domestic violence and, since July 2011, similar tax provisions as previously applied to married couples, including, among others, allocation of transferable tax-credits, exemption from inheritance tax, gift tax and stamp duty. Registered civil partners must revise their wills as any existing will is revoked on registration.
The Act also provides procedures, for the dissolution of the civil partnership by the Court, which can make orders for maintenance, under the domestic violence acts, to protect the shared home of the partners, property orders, pension adjustment orders, etc.
The second impact of the Act is on cohabiting couples, both opposite and same-sex, who are either unmarried or not registered in a Civil Partnership, and who have been living as a couple in what the Act describes as “an intimate and committed relationship”, for two years or more, if they are parents of one or more dependent children, or for five years of more in any other case. The Act establishes a “redress” scheme for such couples to protect a financially dependent or vulnerable partner on the ending of the relationship, on death or otherwise. Such party may apply to Court and, depending on the circumstances, obtain reliefs such as property adjustments orders, maintenance orders, pension adjustment orders or orders for a share of the deceased partner’s estate. For cohabitees this is not an automatic right – a person must apply to the Court and there are strict time limits involved – some as short as 6 months – so prompt legal advice is essential. Section 202 of the Act allows cohabitants to regularise their own financial affairs by entering into a co-habitants agreement during the relationship or for when it ends, somewhat similar to a pre-nuptial agreement but strict rules apply and to ensure they will stand up in Court, legal advice is essential.
This is but the briefest summary of a dense piece of legislation running to some 208 sections. In my view its immediate impact will be on unmarried cohabiting couples who, heretofore, have been living to a large extent in a “legal free zone”. All changed! Changed utterly! We strongly advise such couples to regularise their financial affairs by making a cohabitant’s agreement and Pierse Fitzgibbon will be happy to advise.