The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 came into force on 1st January 2011. It brings about a complete sea change for cohabiting couples.
Prior to the 2010 Act couples who cohabit (even for many years) acquired no rights against each other. There was no automatic property rights, rights of occupation in the property which was their home, financial support or inheritance rights for cohabitants.
Who is a cohabitant?
A cohabitant is one of two adults (whether of the same or the opposite sex) 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. The interesting ingredients of the definition are that the couple must “live together” so it is more than a dating relationship.
Who is a qualifying cohabitant?
For the purposes of the Act a qualifying cohabitant means a cohabitant who has been living with their partner as a couple for a period:-
(a) of two years or more where they are parents of one or more dependent children and;
(b) of five years or more in any other case.
A couple who would otherwise be a qualifying cohabiting couple will not be so qualified if:-
(a) one or both is or was at any time during the relationship married to someone else and;
(b) at the date the relationship ends the married party has not lived apart from their spouse for at least four years during the previous five.
Under the cohabitant’s section of the Act there are two distinct parts:-
(i) the validity of certain agreements between them and;
(ii) the Redress scheme.
The Act provides that cohabitants may enter into a cohabitant’s agreement to provide for financial matters during the relationship or when the relationship ends whether through death or otherwise.
This is an encouragement to couples who do not want to marry or register a civil partnership that they may take responsibility for their own arrangements while living together and what is to happen in the event that the relationship ends either by death or breakdown.
The Redress Scheme
If a qualified cohabitant satisfies the Court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship the Court may make certain redress Orders as appropriate.
The Court has power under the redress scheme to make:-
- Property Adjustment Orders
- Compensatory Maintenance Orders
- Pension Adjustment Orders
- Application for provision from the estate of a deceased cohabitant Section 194:
Any applications under the redress scheme will be dealt with in the family court and will be held in private.
While the redress scheme is similar to the ancillary relief that can be granted on separation and divorce or civil partnership dissolution, it is more limited. While the factors to be taken into account are also similar it is likely that financial redress will be less for a cohabitant than for a spouse in similar circumstances.
The reality is that there are many couples living together unaware that they are qualified cohabitants under the Act. Awareness of the provisions in the Act could clearly be very important for cohabiting couples. Equally important is for couples to be aware of the right to contract out of the Act and to agree between them how to regulate their obligations and rights to one another through a Cohabitation Agreement in the event that the relationship ends or one party dies. In most cases it is preferable for people to control their own destiny rather than run this risk of a Court imposed outcome.
Grahame Toomey is a partner in Walls & Toomey Solicitors who specialise in all aspects of family law and mediation and collaborative practice.
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