Many people choose to live together in relationships without getting married or entereing into civil partnerships. But what happens when these relationships end - either by death of one person or by choosing to separate. Do people have the same rights as married people?
A cohabitant is defined as ‘one of two adults who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.’ These two adults may be of the same sex or opposite sex.
Census 2016 show us that these figures are on the rise but only slightly. In county Wexford, we have 4,880 cohabiting households compared to 4,431 in the previous census.
Part of the reason that there hasn’t been higher growth is that since November 2015, same sex marriage has been legal in Ireland. So many same sex couples who were living together, may have chosen to marry.
What is interesting, is that within those figures the numbers of cohabiting couples with children increased. Cohabitation is often a precursor to marriage in Ireland but now more couples are choosing it as a life choice instead of marriage. If this is the case, couples need to be fully aware of the legal implications of certain situations when they decide not to get married.
There are certain rights available to ‘qualified cohabitants’ when an application is made to the courts.
To be a qualified cohabitant, a person must be have been:
a cohabitant for at least 5 years
a cohabitant for 2 years if they have had a child with their partner.
If one person is still married, then neither will be a qualified cohabitant until the married person has been living apart from his/her spouse for at least 4 of the previous 5 years – in effect, until he or she is entitled to seek a divorce.
Reliefs available for qualified cohabitants are maintenance, property adjustment orders, pension adjustment orders, provision from the estate of the deceased cohabitant.
Examples of how situations may differ legally for cohabitants as opposed to those of a married couple or in a civil partnership.
If someone has been married or in a civil partnership and the relationship ends, they are entitled to apply to the court for maintenance from the spouse/civil partner to cover their own expenses.
In a cohabiting relationship, there is no automatic right.
If a cohabiting relationship breaks down, a person must prove that they are a qualified cohabitant and were financially dependent on their partner.
Maintenance for Children
Married couples and civil partners are legally obliged to maintain their dependent children in accordance with their means. Their maintenance responsibilities following a judicial separation, divorce or dissolution are determined by the courts.
If you have had a child outside of marriage and cannot come to an agreement about maintenance, you may apply to the court to order the other parent to pay child support. In most cases, it is the parent with main custody of the child that makes such an application.
If the court decides that the parent of a dependent child has failed to provide such maintenance for the child as "is proper in the circumstances", it may order that parent to make regular maintenance payments to support the child. The court may also order a parent to pay a lump sum.
Access to Children
By law, the mother is the sole guardian of a child born outside of marriage. A father may apply for access whether or not he is a guardian. He can do this even if his name is not on the child's birth certificate, and even where his application for joint guardianship has been turned down.
If a cohabiting couple splits up, the family home (and other family assets) will belong to the person who holds the legal title to the home/assets. This means that in the case of the family home, the person who originally bought the house and whose name is on the title deeds will usually own the house. This also applies to a married couple who split up. Marriage does not automatically give you ownership of your spouse’s assets.
If your relationship breaks down and your name is not on the title deeds to the house, you may still be able to show that you have some ownership rights in relation to the house. These rights are based on the fact that you made a contribution to the purchase price of the house with the intention of gaining a share in the ownership of the house.
If you are in a cohabiting relationship and you die without a will, your partner has no right to any share of the estate no matter how long you have been together, apart from what was held jointly. Many people are not aware of this, so it is very important to know your rights in this situation.
If you are married or in a civil partnership, the Succession Act 1965 gives your surviving spouse/civil partner a legal right to a share of your estate when you die, no matter what you have said or specified in your will. This does not apply to cohabiting couples.
If you are in a cohabiting relationship, there is nothing to prevent you from leaving some or all of your property to your partner in your will. However, if you are or have been married or in a civil partnership, your spouse/civil partner may be legally entitled to a share of your estate even though you are now separated from him/her.
If you are at least 18 years old and of sound mind, you can make a will. Here at John A Sinnott Solicitors, we always advise everyone to make a will. This is extremely important for couples who make the decision to live together without entering into marriage or a civil partnership.
Any couple who are living together in a civil partnership, or who are cohabiting together in a relationship for a minimum of 3 years, can apply to adopt a child. Previously, only married couples could apply to jointly adopt a child.
In summary, cohabiting couples do not have the same rights as married couples or couples in a civil partnership. These rights are not necessarily worse, but it is absolutely vital that couples who decide to live together seek legal advice so that they are fully aware of the legal implications for them. Rarely are two situations the same and so it is very important to discuss your circumstances with a solicitor.