Many people live together without being married (known as ‘cohabitation’). Perhaps they intend to get married at some point, perhaps not. Either way it is important to know and understand the law. Here, the experts from Cashin Clancy Solicitors tell you all you need to know from a legal standpoint.
Property
A cohabitant has no automatic inheritance rights to property that is not in their name. If purchasing a property together they can decide either to own it as ‘tenants in common‘ or as ‘joint tenants’.
Tenants in Common: Each person owns a specified share of the property. On death their share will pass according to the terms of their Will. If there is no Will, such share will go to their family. This can cause difficulties if the surviving co-owner does not wish to share ownership of the property with third parties, or, to have it sold.
Joint Tenants: On death of either of the owners their share passes to the other, but this may have adverse inheritance tax consequences.
It is therefore very important for cohabiting couples to obtain legal advice and make Wills where property is involved, and also, to obtain advice on the taxes or reliefs/exemptions (e.g., Dwellinghouse Relief) which might apply to their circumstances or whether an Insurance Policy (to cover inheritance tax liability) should be put in place.
Co-Ownership Agreements: On buying a property a cohabiting couple should enter into a legal agreement that sets out how and in what shares the property will be owned, how liabilities (e.g., mortgage, utilities, tax, maintenance & upkeep) will be dealt with, to include if a break-up or dispute arises.
In case of a break-up or dispute, the cohabitants can revert to their Co-Ownership Agreement and follow what was originally agreed. Otherwise, they could consider mediation to try and resolve matters, or the next step (and last resort) would be court proceedings.
Finances
Cohabitants, at the start of their relationship, can enter a Cohabitation Agreement, setting out how they will handle their money matters (e.g., assets, debts, liabilities, financial support, pensions, etc.) during their relationship, and, if it ends.
Again, in the event of a break-up or dispute they can seek to rely on the Cohabitation Agreement, or otherwise engage in mediation or if all else fails then court proceedings.
Children
Guardianship: Only where a father is cohabiting with a mother continuously for twelve months, and at least three of these months are after the birth of their child, the father will automatically be deemed to be a legal guardian of the child.
Otherwise, both parents could sign a Statutory Declaration appointing the father as joint legal guardian of the child or alternatively the father, on notice to the child’s mother could apply to the District Court to be appointed legal guardian and the Court will decide on his appointment.
Access, Custody and Maintenance: If the parents’ relationship breaks down, arrangements should be put in place to deal with Access, Custody and Maintenance. Again, where there is dispute in relation to children, they should in the first instance attend mediation, and failing to reach agreement either person can make an application to the District Court for orders on these matters.
The Law on Cohabitation
The Civil Partnership and Certain Rights of Cohabitants Act, 2010 gives legal rights on the break-up of certain long-term cohabitants (called ‘qualified cohabitants’). To apply, the cohabitants must have been living together for at least five years, where there are no children, or two years, where they have children. Also, where one is married, he/she must have been separated from their spouse for at least two of the previous three years.
Here are some types of redress commonly sought from the courts:
- Maintenance Orders: Where the relationship ends, and one qualified cohabitant can prove they’ve been financially dependent on the other, the court can order regular payments or, a lump sum payment.
- Property Adjustment Order: The court can direct a property be transferred from one to the other.
- Inheritance: the court can direct payment out of the deceased cohabitant’s estate, to the surviving cohabitant, even if there is no financial dependency, and which will be exempt from inheritance tax
- Pension: If financially dependent, the court can order for payments from the other cohabitant’s pension scheme.
Time Limits: There are very strict deadlines for these court applications: –
- During Lifetime: A claim must be brought within two years of the relationship breaking down.
- On Death: If one cohabitant dies during the relationship, the other has two years within which to bring their claim, but, if one cohabitant dies within two years of the relationship ending, any claim can only be brought within six months from the date of Grant of Probate (or Letters of Administration).
It is important to obtain specific legal and tax advice if you are in a cohabiting relationship. For further information or to arrange an appointment contact Cashin Clancy Solicitors on 065 6840060 or email enquires@cashinclancy.ie. This article does not constitute legal advice.
