Thursday, 4 February 2010
Justin Spain, Expert in Family Law
A few points to make about family law generally:
. Any separation is very traumatic and stressful for those involved who have to deal with not only the emotional consequences of separation but also the legal and financial consequences.
. In the 2006 Census nearly 12% of all couples in Ireland were cohabiting couples and this percentage is rising quickly.
. A common misconception is the phrase "common law husband/wife" as if people accrue certain rights from a relationship. Many co-habitants believe a legal status attaches to such relationships but this is not so.
Many people, whether they're married or unmarried, don't know what their rights are, and with a new Civil Partnership Bill about to be introduced later in the year (over the summer), which proposes to give more right and entitlements to unmarried and same sex couples, there is a need to inform the public about potential changes this new law could bring, as well as informing of what their rights re at the moment.
Much of the focus on the new Bill has been on the same sex partners section of the bill, which gives more entitlements to sex couples who register their relationship. Today, we will also look at the law as it stands for co-habiting couples, and what might happen when the bill is introduced.
Justin, currently Irish law does not give any status to cohabiting couples?
At present Irish law does not give any status to cohabiting couples or any property or financial relief when such relationships break down. Partners have no rights to any property owned by their partners and must show a financial contribution to claim any financial relief. They may also be forced to bring two sets of legal proceedings in both the family courts for maintenance and in the civil courts to try and retrieve their contribution to the home, for example.
This will change in the Civil Partnership Bill that is going to be passed during the summer; can you briefly explain these changes?
Yes: The main feature of the Bill is that protection is extended to both opposite sex and same sex couples. There are two distinct areas of the bill:
1.Civil registration of same sex relationships, which gives more right and entitlements to same sex couples in a number of areas
2.The second part of the Bill is the Rights duties of cohabitants.. The co-habitants part of the Bill is an area that has not got much media attention. This part of the Bill allows a Court to make certain orders to qualifying cohabitants if it is satisfied that the applicant is financially dependent on the other cohabitant.. if, for example, a couple have been living together for 3 years or if they have a child and have been living together for 2 years, they may now have more entitlements..
This part of the Bill allows a Court to make certain orders to qualifying cohabitants if it is satisfied that the applicant is financially dependent on the other cohabitant (see additional information below).
Firstly, what is a qualifying cohabitant?
Such a person is someone who is in a committed and intimate for three years or two years where there is a child of the relationship.
Who will not qualify as a cohabitant?
. Where either party is married to someone else.
. At the time the relationship ends, either party has not lived apart from their spouse for four out of the last five years.
What circumstances of the relationship will the court look at?
The court will look at a number of specified factors including:
. Duration of relationship
. Nature of relationship
. Degree of financial dependence or interdependence
. Care and support of children
. Public aspects of the relationship
What Reliefs can be offered?
. Redress offered for vulnerable Reliefs available includes:
. Property Adjustment Orders
. Pension Orders
. Maintenance Orders
. They may also seek provision from the estate their deceased partner's estate
Justin, we are going to look at some scenarios for co-habiting couples, and typical examples of what might happen as the law now stands:
. An unmarried couple, John and Linda, live together for 3 years. John owned the house for 2 years before Linda moved in. She pays him €600 towards bills and costs. His mortgage is €1200. If they split up - does Linda have any claim on the house? How can they both protect their own interests?
Under current law Linda would be in a very vulnerable position. She may be able to claim a small equity in the property by reason of her contribution to the bills and costs in the house but in all likelihood would end up at best with a very small percentage as John owned 100% of the equity when she moved in.
If Linda had contributed towards the deposit it would be a very different matter or if there was no deposit and a 100% mortgage paid by both of them from the start. It is too late now to protect themselves by way of an agreement. If Linda cannot agree with John as to what she should receive after the split then her only option is to go to court and this can be expensive when compared to what she might receive.
Under the proposals set out in the Bill she may qualify as a co-habitee and if she can satisfy the court that she is financially dependent on her boyfriend then she could ask the Court to make financial provision for her and would be in a much stronger position generally.
. An unmarried couple bought a home together 4 years ago. They have since split up and house is not worth what they paid for it. He wants to rent it until market recovers and she is in a new relationship and wants to sell. Advice on reaching a resolution?
It depends on whether there is a mortgage on the property. It makes no sense to sell the house if the house is in negative equity as the parties will then have to fund the shortfall on the mortgage between them. They would be better to do as he suggests and rent it until the market recovers in this scenario.
If property is worth more than the mortgage or if there is no mortgage then if he will not agree to sell she will have to go to court to force him to sell. In the absence of a co-habitation agreement the split of the equity in the house will be on the basis of what financial contributions each party made to the house. This shows the benefit of co-habitation agreements which would set out what is to happen if one party wants to sell and the other does not.
. An unmarried couple have been living together for 20 years and have 2 children. The home in which they live is in the sole name of the father and has no mortgage. The father paid off the mortgage. He works as a Civil Servant and is the main breadwinner, the mother having given up full time work some years ago to care for their children. What position is the mother in if the relationship breaks up? What happens if the father dies?
Under the law as it currently stands the mother is in a very vulnerable position. She would have very little claim on the home and would only get back what she put in by way of financial contributions, if any. This may leave her in a very vulnerable position as regards re-housing herself and the children. She would be entitled to no maintenance for herself and would have no claim on his pension and no inheritance rights.
In this scenario if the father dies the mother is very exposed. She has no automatic rights under the Succession Act and if he did not make a will all of his estate, including his house, would pass to the children. She would have no maintenance or income and would not qualify under his pension to receive anything from that either as she is not his wife. Effectively she would end up with nothing and would be relying on the goodwill of the children for housing and income.
If the Bill becomes Law:
If the Bill became law the mother would have the benefit of the "safety net" provisions to allow her to protect herself and to allow the court to make a number of orders in her favour, such as sale of the home to make sure she can re-house herself, pension orders, maintenance orders etc. She would also be entitled to maintenance from her husband for herself as well as for the children. She would also have a strong claim against his pension.
. An unmarried couple have children. The mother does not work. What happens if the father / husband dies?
Other notes on the Civil Partnership Bill
Cohabitants - Part of the Bill
This part of the Bill effectively provides a "safety net" for a vulnerable party at the end of a long term opposite sex or same sex relationship. It also provides recognition of cohabitation agreements under which people seek to regulate their joint financial and property affairs.