Co-habitation Agreements – a sleeping giant
The Marriage Act of 2015 went into force on the 16th November 2015 and repealed the ban on same sex marriages In Ireland. It also made provision for the recognition in Iraland of foreign same-sex marriages ( although not an automatic recognition). It phased out the entitlement of same sex couples to enter into Civil Partnerships and the question could be asked is Family Law in Ireland diversifying or contracting in that the only real structure now for the formal civil recognition of a relationship is through marriage, same-sex or otherwise.
Generally speaking no new civil partnerships can be formed after the 16th November 2015. This does not mean however that the Act known as the Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010 is redundant, far from it as the aspect of the Act dealing with certain rights and obligations of co-habitants is still particularly relevant although very much underused.
The Act dealing with co-habitants allows people that live together to organise their affairs which, if done properly, on the breakup of the relationship (not by death), will only be overturned in exceptional circumstances or where the enforceability of the co-habitants agreement would cause serious injustice e.g. a farmer living with his partner or an entrepreneur living with her partner may wish to make provision for the break-up of that relationship to ensure that the co-habitant will not be entitled to a share of the business or farm on the break up.
The current leading case on co-habitants at the moment is a case of D.C versus D.R [2015] IEHC309. In that case there was no co-habitation agreement and Judge Baker in the High Court granted the claimant co-habitee approximately 45% of the estate of the deceased co-habitant where the deceased co-habitant died without a will and had no children and where the surviving co-habitant had his own property/lands.
There are strict time limits within which such an application can be made to the court on the death of a co-habitant and in fact in this case it was only when the surviving co-habitant was sued by the estate of the deceased co-habitant that the surviving co-habitant, after contacting a Solisitor, became aware of his rights to claim against the estate of his deceased co-habitant!
There is, therefore, a huge level of ignorance out there in relation to the right of a surviving co-habitant but also in relation to the protections that can be put in place by co-habitants to protect their property and assets in the case of a break-up.
The same protection is not there in a situation where a co-habitant dies but this likewise can be dealt with by way of wills or perhaps a co-habitant evoking their right to claim under the estate of the other party.
It is a complicated area of law and the best advice that can be given is; draw up a co-habitation agreement as soon as possible, contract this office for further advice.
Éamonn Fleming
