Cohabitation in Ireland: Happily Never After?

Cohabitation in Ireland: Happily Never After?

Deirdre Kelleher

As the country becomes accustomed to life after the successful Marriage Equality referendum it is worth pausing to consider the lived reality of thousands of Irish couples for whom equality remains elusive.

According to Census 2011, 12% of families in Ireland are made up of cohabiting couples.  That translates to 143,600 couples who are living together but are not married or in a civil partnership.  This is not an insignificant proportion of the population yet whilst these couples may consider themselves a family, the reality in law is significantly different.  In matters such as inheritance, shared property and maintenance couples who choose not to marry are at a significant disadvantage.

Thankfully much has been done over the years to equalise the position of children irrespective of whether they are born to married or unmarried parents.  The Status of Children Act 1987 removed the awful concept of ‘illegitimacy’ – the antiquated term used for children born outside marriage.  It is now well established that, regardless of the marital status of parents, all children can inherit or make claims against a parent’s estate in accordance with the Succession Act 1965.  The 1987 legislation also amended the Family Law (Maintenance of Spouses and Children) Act 1976 to extend the right to maintenance to children “whose parents are not married to each other”.

Thus whilst it is entirely correct that children ought not  suffer discrimination due to the marital status, or lack thereof, of their parents, it would appear that legislators are less inclined to address the discrimination suffered by those adult parents.

In 2010 the Civil Partnership and Certain Rights and Obligations of Cohabitants Act was enacted, introducing a significant level of  protection and rights for same-sex couples previously only available to their married opposite-sex counterparts.  In particular the rights of civil partners in the area of succession were vastly improved, essentially bringing them into line with the entitlements of married couples.  For example civil partners are entitled to a legal right share in their partner’s estate on death and, in the event of intestacy, civil partners are treated the same as married spouses as regards the proportion of the estate that vests in them (depending on the presence or otherwise of children).  For taxation purposes there is no inheritance tax payable either by spouses or civil partners irrespective of the value of the estate they have inherited.

For cohabitants however, the position is much different.  Firstly, there is no automatic entitlement to any share of their partner’s estate, irrespective of the length of the relationship.  A qualified cohabitant i.e. someone who lives with someone else “as a couple in an intimate and committed relationship” for 2 years if they have children, or for 5 years if they don’t, may apply for an order for provision from the net estate with no guarantee that such an application will be successful.  Of course, there is nothing to prevent a qualified cohabitant from leaving a gift or legacy to their partner in their will, but what may give them pause for thought however is that any gift, legacy or benefit valued at greater than €15,075 is subject to tax at 33%.  In this context, the Revenue Commissioners in Ireland equate the position of cohabitants with that of strangers.

Given that in most circumstances, the most valuable asset in any estate is a house, it is also worth noting that cohabiting couples are not protected in law to the same extent as married couples or civil partners.  The Family Home Protection Act 1976 prevents a spouse from selling or otherwise transferring title of the family home to another without the knowledge and consent of the other spouse, irrespective of who owns the house and civil partners now receive the same protection.  Cohabitants who do not jointly own a property however do not have legal protection if the person who legally owns the house decides to sell it, irrespective of the consequences of that decision.

Buying a house together is not a decision to be embarked on lightly but cohabitants must ensure that they are aware of their legal vulnerabilities.  Particular difficulties can arise upon the death of an owning cohabitant; whilst the surviving joint tenant takes full ownership, other forms of ownership can require each person to express their intentions through their last will and testament. Otherwise if they die intestate, their interest will be distributed according to the rules of intestacy in which instance a cohabiting partner has no legal entitlement. Additionally they should be aware of the taxation consequences of bequeathing a share of the property to a cohabitant as this will most likely exceed the maximum tax free threshold.

Finally, married couples and civil partners are legally obliged to maintain each other, both in the course of their relationship and in the event of its breakdown.  Cohabitants however do not enjoy the same protection.  The 2010 Act does introduce a redress scheme that allows qualified cohabitants to apply to the Court for maintenance and other orders if it can be shown that the applicant was financially dependent on their former cohabitant.  It is only possible for such an application to be made within two years of the end of the relationship, whereas former spouses and civil partners can apply at the time of dissolution or at any time thereafter.

It is surely time for Ireland to look to jurisdictions such as New Zealand where the same rules apply to all relationships – marriages, civil unions (same-sex and opposite –sex) and de facto relationships.  In New Zealand, a couple will qualify as a de facto couple if they live together and are over the age of 18.  The length of time required for a cohabitation to be recognised as a de facto relationship is not strictly defined.  For the purposes of the Property (Relationships) Act 1976 for example it is set at 3 years.  Once a couple has reached this point they are entitled to be treated in exactly the same way as married couples or those in civil unions where the relationship ends either by separation or by death and there is relationship property to be distributed.

This approach to modern family formations makes sense and is inherently fairer.  It recognises that people everywhere make different choices, choices that are right for them in their circumstances.  The law in Ireland urgently needs updating to reflect a legal respect for those choices.  As Anthea McTiernan states simply “isn’t it time for everyone to be able to choose not to get married?

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