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Rights of Cohabitants

By: Pat Mullins | Posted on: 14 Jul 2015

Rights of Cohabitants

A recent decision of Ms. Justice Baker, delivered on the 5th of May, 2015, dealt with the interpretation of Section 194 (1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010.  This provision, entitles a person, who claims to have been in an intimate c-habiting relationship with another, to make application for financial provision, to be made out of the estate of the deceased cohabitant. 

 

This was the first determination, by one of the Superior Courts, in relation to this legislation. 

 

In order to succeed, the Court must be satisfied that the Applicant was a cohabitant, within the meaning of Section 172 of the Act.  To succeed, the Applicant must show that the parties have lived together as a couple, for a period of two years or more, where there are dependent children, or five years or more, in any other case.  The relationship must be between two persons, whether of the same sex, or the opposite sex, who have been living together as a couple, in an intimate and committed relationship.

 

Section 172 (2) obliges the Court, in assessing cohabitation, to examine each of the following matters:-

 

(a)The duration of the relationship;

(b)The basis on which the couple lived 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.

 

 

 

The relationship must be, or have been at some point, a sexually intimate relationship.

Ms. Justice Baker indicated that the seven identified factors in Section 172 (2) were not conclusive as to the nature of the relationship, but rather indicative of that relationship and how it is to be characterised.  Ms. Justice Baker went on to state:-

 

“I consider that the test requires the Court to determine whether a reasonable person who knew the couple would have regarded them as living together in a committed and intimate relationship, and that the individual and many factors in how they are perceived must be taken into account”. 

 

In the particular circumstances of this case, Ms. Justice Baker concluded that the Plaintiff, was cohabiting with the deceased, in an intimate and committed relationship, at the date of death, and had been so cohabiting for in excess of five years prior to her death. 

 

Ms. Justice Baker indicated that an application under Section 194, for provision from the estate of a deceased cohabitant, does not require that the Applicant can show financial dependency. 

 

Having considered the various factors pertinent to the particular case, Ms. Justice Baker made a provision of approximately 45% of the net estate of the deceased cohabitant. 

 

Ms. Justice Baker went on to state that she did not consider that the…“Legislation mandates or permits of a rule or even a rule of thumb that directs a particular percentage, or range”.

 

The Judgment is a very detailed and considered Judgment, and clearly, for the first time, in a public fashion, contains a detailed consideration of the net effect of the 2010 Act, as it relates to the rights of civil partners, and in particular to the rights of a Civil Partner making an application for provision out of the estate of a deceased civil partner. 

 

 

 

 

 

 

Patrick Mullins  

CEDR Accredited Mediator/Solicitor  

Partner at BDM Boylan Solicitors

Clarke’s Bridge House

Hanover Street

Cork  

Email: pmullins@bdmboylan.ie

Telephone no: 021 4313333

Website: www.bdmboylan.ie