• Civil Partnership & Cohabitation: 

• A Practitioners Guide

• Midlands & Western CPD conference, 6thJuly 2013

• Cormac Corrigan SC & Aisling Wall BL.

Introduction• An Act consisting of 16 Parts with 208 sections which

fundamentally alters the legal position of non-marital unions. Has been described as the single greatest reform of the ‘family law’ in a generation

• The Act creates and protects two new legal relationships; between registered civil partners and between cohabitants. The result is that persons who were previously strangers in law now have legal obligations and rights in respect of each other.

Somestatistics– DublinCircuit• Since the coming into force of the 2010 Act on 1st January 2011,

applications are now been made in the Circuit Family Court in respect to civil partnerships and cohabitees.

• Since 2012 there have been 10 applications in respect to civil partnership and 5 in respect to cohabitants.

• In 2013, there have so far been 5 in respect to civil partnerships and 4 in respect to cohabitants.

Civil Partners vs Cohabitants• Only persons of the same sex may enter into a civil partnership

which must be registered in accordance with the amended provisions of the Civil Registration Act 2004 before it can be valid. This is a marriage-like scheme which requires most of the same formalities of a marriage and gives most of the same rights as married couples.

• On the other hand, the ‘redress scheme’ provided for co-habiting couples whether they are of the same or opposite sexcan arise by default but rights and redress available to co-habitants are much less extensive than those available to civil partners.

Civil Partnerships• Formalities required for civil partnership• Maintenance• Succession• ‘Shared’ home protection• Domestic Violence• Nullity• Dissolution of Civil Partnerships and ancillary orders

Civil Partnership Formalities• Like marriage, the process of entering into a civil partnership is a

formal one and a civil partnership cannot come into existence by default (for example, by the passage of time) or without the active knowledge and consent of the partners.

• There are certain formalities that must be complied with in order for a civil partnership to be valid:

• Part 3 of the Act deals with the Registration of Civil Partnerships. In order to enter into a valid civil partnership: -• Both parties must be aged 18 or over; • Must be of the same sex• Parties must fully and freely consent to the civil partnership • Parties cannot be within the prohibited degrees of relationship -

largely identical to those applicable in the case of marriage.• A person who is already married to one person cannot

simultaneously enter into a civil partnership with another person• A civil partner cannot marry or enter into a civil partnership with

another person unless the civil partnership has been dissolved or annulled

Formalities• Recognition of relationships registered outside the State: s.5

allows Minister to recognise a relationship entered into outside the State to be given effect if: • the relationship is exclusive in nature; • permanent unless dissolved by court; • registered under the law of that jurisdiction; • rights etc are comparable to those available on civil partnership

• Minister may declare classes of relationships to be recognised under the above provisions

• A legal marriage entered into abroad that cannot be legal in this jurisdiction (due to the fact that the parties are of the same sex) will be treated as a civil partnership in this jurisdiction. Constitutional understanding of marriage would prevent the recognition of such marriages as legal marriages – Zappone v Revenue Commissioners (2006)

Maintenance• Civil partners have an obligation to maintain each other and

their dependent children in same way as spouses – arises even where parties are still living together in a civil partnership –contained in Part 5 2010 Act.

• Same provisions as apply under Family Law (Maintenance of Spouses and Children Act) 1976 apply in this context. Can apply for maintenance for civil partner and dependent children – court takes into account income, earning capacity and financial resources of parties and financial responsibilities of each civil partner as a parent towards any dependent children or towards former spouses or civil partners.

• Enforcement, vary and discharge is same as in relation to spouses. Payment may be periodical, secured or lump sum.

Succession

• Part 8 of the Act deals with succession issues created by the legal relationship of civil partner – inserts s.67A into Succession Act 1965

• Where a civil partner dies intestate with no children, then the other civil partner is entitled to the entire estate. Where the deceased civil partner had children, the surviving civil partner will take 2/3rds and the remainder will be distributed among the children

• Act allows a child of the deceased civil partner to apply to court seeking further provision from the estate of the deceased, even if this reduces the surviving civil partner's share. This provides protection to children living with civil partners, and may ensure that children of formerly married parents are not unfairly prejudiced by the fact that one of the parents subsequently enters into a civil partnership.

• [Note: this is not provided to children in respect of the estate of their formerly married parents where one of the parents remarries.]

Succession

• Where a civil partnership dies leaving a will, the legal entitlement of the surviving civil partner is one half where there are no children and one third if there are children.

• The Act also provides that the legal right of a civil partner may be renounced in an ante-civil-partnership-registration contract made in writing between the parties to an intended civil partnership or may be renounced in writing by the civil partner after registration and during the lifetime of the testator.

Shared-home protection

• Part 4 deals with ‘shared home protection’ – essentially re-enacts provisions of Family Home Protection Act 1976 in respect of civil partners

• Means that shared home cannot be ‘conveyed’ without the prior consent in writing of the non-owning civil partner

• Includes provision for protection of household chattels on same basis as 1976 Act but NB: accommodation needs of children are not a factor for consideration by the court in making a determination under this section

Domestic Violence

• Part 9 of the Act essentially puts civil partners in the same position as spouses under domestic violence legislation. Can apply for safety, protection and barring orders on same basis as spouses.

• Civil partner can apply for an order under the Domestic Violence legislation to protect the dependent child of either civil partner, if the child is under the age of 18 or, in the alternative, disabled to such an extent as to prevent the child living an independent life.

• Applicant civil partner must either be the biological or adoptive parent of the child, or alternatively a person in loco parentis in relation to the child

Annulment of civil partnerships

• Part 11 of 2010 Act deals with nullity of civil partnerships• Allow the civil partnership to be annulled for a number of

reasons, including if either or both of the parties was under the age of 18 years or if either or both of the parties was already a party to a valid marriage. Also void if formalities were not complied with. Lack of valid consent will also void.

• Does not allow a civil partnership to be avoided due to inability to consummate, nor does the Act render a civil partnership voidable where one of the parties is unable to form and sustain a normal and caring relationship.

Dissolution of Civil Partnerships• Dealt with in Part 12 of the Act• Only a court can order the dissolution of a civil

partnership• Conditions set out in s.110 Act; parties must have been

living apart for periods amounting to 2 of the previous 3 years and court must be satisfied that provision that the court considers proper has been or is being made for the civil partners.

• NB: No requirement that proper provision be made for children of either civil partner in the case of dissolution

• Court can adjourn proceedings to allow for reconciliation or mediation

Relief ancillary to dissolution

• Court can confer rights of residence in the shared home on one civil partner to the exclusion of the other

• Act allows a former civil partner to seek provision from the estate of a deceased former partner if certain conditions are met.

• Court may grant the surviving former civil partner a share in the deceased's estate if the court is satisfied that proper provision has not been made for the survivor during the deceased's lifetime. May only be sought within 6 months of the granting of representation in respect of the estate.

• This right to seek provision may be extinguished at any time after dissolution by order of the court (like s.18(10) in divorce proceedings)

Relief ancillary to dissolution • Pension adjustment orders are provided for in section 121.

Essentially provides that civil partners are to be treated in the same manner as spouses under pensions legislation

• Equality legislation has been amended to add a new ground of prohibited discrimination namely ‘civil status’ making it unlawful to discriminate against a person in employment situations or in the context of the provision of services on the ground of their civil partnership (even if that civil partnership is now dissolved or annulled)

• Generally, provisions in respect of children are largely absent from the 2010 Act where a civil partnership is being dissolved (and in general).

Criteriaforgrantingancillaryorders• Section 129, 2010 Act:• (a) the income, earning capacity, property and other financial resources that each of the civil partners has or is likely to have in the foreseeable future;

• (b) the financial needs, obligations and responsibilities that each of the civil partners has or is likely to have in the foreseeable future, whether in the case of the registration  of a new civil partnership or marriage or otherwise;

• (c) the standard of living enjoyed by the civil partners before the proceedings were instituted or before they commenced to live apart;

• (d) the age of the civil partners, the duration of their civil partnership and the length of time during which the civil partners lived with each other after registration of their civil partnership;

Criteria• (e) any physical or mental disability of either of the civil partners;• (f) the contributions that each of the civil partners has made or is likely to make in the foreseeable future to the welfare of the civil partners, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other, and any contribution made by either of them by looking after the shared home;

• (g) the effect on the earning capacity of each of the civil partners of the civil partnership responsibilities assumed by each during the period when they lived with one another after the registration of their civil partnership and the degree to which the future earning capacity of a civil partner is impaired by reason of that civil partner having relinquished or foregone the opportunity of remunerative activity in order to look after the shared home;

Criteria• (h) any income or benefits to which either of the civil partners is entitled by or under statute;

• (i) the conduct of each of the civil partners, if that conduct is such that, in the opinion of the court, it would in all the circumstances be unjust to disregard;

• (j) the accommodation needs of both of the civil partners;• (k) the value to each of the civil partners of any benefit (for example, a benefit under a pension scheme) which, by reason of the decree of dissolution, a civil partner will forfeit the opportunity or possibility of acquiring; and

• (l) the rights of any person other than the civil partners but including a person with whom either civil partner is registered in a new civil partnership or to whom the civil partner is married, or any child to whom either of the civil  partners owes an obligation of support.

Separationagreements• Section 129(3): In deciding whether to make an order … and in determining the provisions of the order, the court shall have regard to the terms of any separation agreement that the parties have entered into and that is still in force.

• Will ‘full and final settlement clauses’ have same effect as in divorce situations?

• Overriding provision is that ancillary orders are not made unless it is in the interests of justice to do so – section 129(4)

Important qualification contained in s.208, 2010• Section 208 reads:

“In making an order under this Act and in particular in making a maintenance order, lump sum order, property adjustment order, pension adjustment order or order for provision from the estate of a deceased person, the court shall have regard to the rights of any other person with an interest in the matter, including a spouse or former spouse and a civil partner or former civil partner.”

• This may be interpreted to include children of civil partners so may indirectly influence the amount of maintenance payments/lump sum orders and the distribution of property upon dissolution of a civil partnership although note: application of s.208 is not limited to dissolution situations.

Cohabitation

Cohabitation – points of departure

• Presumptive scheme• Definition of ‘cohabitant’• Definition of ‘qualifying cohabitant’• Distinctions between the two?• Compensatory measures; maintenance, pension and

property adjustment• Contracting out of the scheme• Co-habitation agreements

Introduction• The ‘redress scheme’ created by this legislation applies

separately from the civil partnership scheme – set out in Part 15

• Intended to create a legal relationship between persons living in committed relationships where previously none had existed

• Right and obligations of persons subject to this scheme are less than those that arise on civil partnership however person gain rights and responsibilities under this scheme by default and even without their knowledge as the scheme applies presumptively. This cannot happen in the case civil partnership.

Co-habitant• S.172(1) provides: “a cohabitant is one of 2 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.”

• No need for registration as obligations arise by default & periods of co-habitation prior to commencement of Act count towards time requirement (s.206)

• S. 206 also states that applications for redress can only be made if relationship ended after Act came into force.

• Act provides that even though the relationship is no longer sexual in nature, does not prevent rights from forming under the legislation

Determining cohabitation

• S.172 (2) sets out factors to be taken into account in determining whether a relationship amounts to cohabitation:

• (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.”

Qualified co-habitant

• S.172(5) provides that a “Qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period of 2 years or more in the case where they are the parents of one or more dependant children, and of 5 years or more in any other case.”

Exclusions from qualifying

• Subsection (6) of s.172 includes an important limitation:

• “Notwithstanding subsection (5), an adult who would otherwise be a qualified cohabitant is not a qualified cohabitant if-

• (a) one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and

• (b) at the time the relationship concerned ends, each adult who is or was married has not lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years.

Provision for redress

• S.173 allows a qualified cohabitant who satisfies the court that s/he is economically dependent on the other to apply for orders under the Act. Court will only make orders where it is satisfied that it is just and equitable to do so (ie no rights are created by the Act – only rights to apply where there were previously none.)

• S.173(3) sets out a list of factors that the court will take into account before making an order (Relevant court is District Court re maintenance and Circuit Court concurrently with High Court in all other cases)

Criteria applicable to grant and extent of redress• (a) the financial circumstances, needs and obligations of each

qualified cohabitant existing as at the date of the application or which are likely to arise in the future

• (b) subject to subsection (5), the rights and entitlements of any spouse or former spouse,

• (c) the rights and entitlements of any civil partner or former civil partner,

• (d) the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant,

• (e) the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another

• f) the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other,

Applicable criteria

• (g) any contributions made by either of them in looking after the home,

• (h) the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home,

• (i) any physical or mental disability of the qualified cohabitant,

• (j) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.

Typesofreliefavailable• Property adjustment order: section 174• Compensatory maintenance order : section 175• Pension adjustment order : section 187• All of the above may be sought by a ‘financial dependent cohabitant’

• Provision from estate of deceased cohabitant: section 194 –does not appear to require financial dependence. However cannot apply if relationship ended more than 2 years before former cohabitant died unless the qualified cohabitant was in receipt of periodical payments or had issued proceedings seeking an order under section 174, 175 or 187 above.

Limitations • A very significant limitation is contained in s.173(5):

“The court shall not make an order referred to in this section in favour of a qualified cohabitant that would affect any right of any person to whom the other cohabitant is or was married”

• S.195: “Proceedings under this Part other than proceedings under sections 173(6) and 194, shall, save in exceptional circumstances, be instituted within 2 years of the time that the relationship between the cohabitants ends, whether through death or otherwise.”

Variation• S.173(6) allows for the variation and discharge of orders

made where there has been a change of circumstances (including a variation of orders made in respect of a spouse) – court can vary, suspend, or revive a previously-suspended order.

Cohabitation agreements and contracting out• S.202 allows cohabitants to enter into agreements to provide

for financial matters during their relationship or when the relationship ends through death or otherwise

• However, such agreements are only valid if: both parties obtained independent legal advice (or have received legal advice together and have waived in writing, their right to obtain separate advice), the agreement must be in writing and signed by both parties and the general law of contract must be complied with.

• Such agreements can include provisions that neither party may apply for redress under the Act however the court may set aside such provisions in exceptional circumstances where enforceability would cause serious injustice

• Agreements can be valid even if entered into before cohabitation commenced

• Agreements entered into prior to the commencement of the Act can also be valid and do not necessarily have to comply with the provisions of section 202 regarding separate legal advice etc… – section 207.

Happilyeverafter….

Civil Partners and Cohabitants comparative sectionsDivorce/Jud Separation Civil Partnership Cohabitation

Preliminary Orders

S 6/1995 Act + s 11/1996DV Acts 1996/2002Children Act 1997FHP Act 1976

Ss 90-96 and S 115/2010 Act (Domestic Violence)S 30-34 2010 ActS 5-9 FHP Act

n/a

Maintenance pending suit

S 7/1995 Act +S 12/ 1996 Act

S 116/2010 Act n/a – see section 175 (2)

Periodical and Lump sums

S 8/1995 Act +S 13/1996 Act

S 117/2010 Act Ss 173, 175 2010 Act

Prop Adj ordersS 9/1995 Act +S 14/1996 Act

S 118/2010 Act S 187/2010 Act

Misc Ancillary Orders

S 10/1995 Act +S 15/ 1996 Act

S 119/2010 Act n/a

Financial comporders

S 11/1995 Act +S 16/1996 Act

S 120/2010 Act n/a

A1

Slide 41

A1 Aisling, 13/06/2013

Civil Partners and Cohabitants comparison Divorce/Jud Separation Civil Partnership Cohabitation

Pension Adj OrdersS 12/1995 Act +S 17/1996 Act

Ss 121-126/2010 Act Ss 187-192/2010 Act

Preservation of pension entitl

S 13/1995 Act +n/a

n/a n/a

Succession rtsextinguishment

S 14/1995 Act +n/a

n/a n/a

Provision out of estate

S 15A/1995 Act +S 18/1996 Act

S 127/2010 Act S 194/2010 Act

Extinguishment of estate prov

S 15A(10)/1995 Act +S 18(10)/1996 Act

S 127(11)/2010 Act n/a –

Orders for sale of property

S 15/1995 Act +S 19/1996 Act

S 128/2010 Act n/a **

Retrospective maintenance

S 17/1995 Act +S 21/1996 Act

S 130/2010 Act n/a but see s 175(2)/2010 Act

CivilPartnership&Cohabitationcomparison

Divorce/Jud Sep Civil Partnership Cohabitation

Variation of orders S 18/1995S 22/1996

S 131/2010 n/a

Mareva type orders S 35/1995S 37/1996

S137/2010 n/a

Criteria of grant of relief

S 16/1995S 20/1996

S 129/2010 S 173/2010