The standard family unit of a husband, wife and child/children is undergoing considerable change in Ireland from a legal and social perspective and the changes and associated rights are prompting interest nationally and internationally.
Rights for civil partners were introduced in 2010 and were seen as a radical development at the time. However, the legislative rights provided fell short of the rights given to spouses and did not give civil partners any constitutional protection.
The relevance of those legislative changes, although radical, is now likely to be short lived given the outcome of the recent referendum on marriage equality which amends the Constitution so that marriage may be contracted by two persons in Ireland without distinction as to their sex.
In 2010 there was also a key legislative change in relation to cohabitants which attracted less publicity and is therefore not particularly well known but that may also be changing due to a well publicised and reported recent Court judgment.
A "cohabitant" is defined in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 as one of two adults (whether of the same or opposite sex) who live together as a couple in an intimate and committed relationship who are not related to each other, married to each other or civil partners of each other.
In determining whether or not two adults are cohabitants, a Court must take into account all the circumstances of the relationship and in particular have regard to the following:
(a) the duration of the relationship;
(b) the basis on which the couple live together;
(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
(e) whether there are one or more dependent children;
(f) whether one of the adults cares for and supports the children of the other; and
(g) the degree to which the adults present themselves to others as a couple.
A "qualified cohabitant" is one who, before the relationship ended, whether through death or otherwise, was living with the other adult for five years, or two years where the cohabitants are the parents of dependent children.
Qualified cohabitants may have rights of redress in the context of relationship breakdown and on death.
Where the relationship has terminated prior to death, the Court must be satisfied that the claiming cohabitant is financially dependent. This can be contrasted with the scenario when the relationship terminates on death, where the test applied is not necessarily based on the financial dependence of the surviving cohabitant. On death the Court will also consider factors such as any devise or bequest made by the deceased in favour of the surviving cohabitant, the interests of the beneficiaries of the estate, the financial needs of the cohabitant and the rights of others (e.g., a child).
The recent reported judgment on this legislation involved a 54-year-old professional woman and a 62 year old wealthy businessman who lived together for 25 years before splitting up in 2011. The Judge considered issues such as length of relationship, timing of breakup and financial dependence arising from the breakdown of the relationship. The businessman had assets of approximately €26 million and the following awards were made:
- Properties valued at 1.5 million euro;
- A lump sum of €850,000; and
- Maintenance of €70,000 per annum
Although these were substantial orders commentators view them as being significantly less than what would have been awarded if the couple had been married.
It is also worth noting that the co-habitation legislation does facilitate cohabitants entering into a cohabitants' agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise. Such an agreement is valid only if:-
(a) the cohabitants–
(i) have each received independent legal advice before entering into it, or
(ii) have received legal advice together and have waived in writing the right to independent legal advice,
(b) the agreement is in writing and signed by both cohabitants, and
(c) the general law of contract is complied with.
A Court may vary or set aside a cohabitants' agreement in exceptional circumstances, where its enforceability would cause serious injustice.
This position contrasts with the absence of any legislation on pre-nuptial agreements in Ireland at present. The decision of the UK Supreme Court in Radmacher was followed with interest although the issues relating to prenuptial agreements would be approached differently by the Irish Courts because of the constitutional protection accorded to both the institution of marriage and the right to marry, soon to be extended.
It is generally viewed that prenuptial agreements would not be considered by an Irish Court to offend against the Constitution, but the constitutional requirement of proper provision, and the date of the assessment of such, prevent prenuptial agreements from being automatically enforceable. Instead, it is considered that the Courts might give a degree of recognition to such agreements in light of other relevant factors.
It will be interesting to see the first Court decision in the area in Ireland and whether it involves cohabitants or married couples. However, it does now seem clear that the Courts will view cohabitants in a very different light so that any judgments in relation to cohabitants may not give significant guidance in relation to the rights of married couples protected by the Constitution.