What is mine is Yours – Or is it?! The merits of a Co-Habitation Agreement
“What is mine is yours.”
This may not be a phrase to the forefront of many couple’s minds when they decide to co-habit. Such a concept is only reserved for those who take the plunge and walk down the aisle to marriage, right? This article will explore what co habitation is and what are your rights . Co-habiting is on the increase but so many do not know the challenges that can arise from not understanding that the law works differently to protect couples living together and it is a common held thought that the legislation when introduced did not go far enough to protect individuals in long term unmarried relationships.
The Civil Partnership and Certain Rights and Obligations of Cohabitant’s Act 2010 gives certain legal rights to long term cohabitants referred to as “qualified cohabitants” in the event of their relationship breaking down.
What exactly is “long term”?
If you have been living with your partner in an intimate and committed relationship for at least five years if you don’t have children together or at least two years if you have children together, then for the purposes of the legislation you are deemed to be “qualified cohabitants”.
What does it mean to be a qualified cohabitant?
If your relationship breaks down and you are a qualified cohabitant by virtue of meeting the criteria set out under the heading above, you may apply to Court for certain Orders. It should be said that Court is often the last resort for couples and this is rightly so. However, if counselling and mediation don’t work for you or are not suited to your particular circumstances these are some of the Orders which you may seek from the Court under the Redress Scheme provided for under the 2010 Act:
· A Lump Sum Order directing the other party to transfer a sum of money to you
· A Maintenance Order directing the payment of sum of money by way of maintenance to you on a weekly or monthly basis
· A Pension Adjustment Order, requiring a proportion of the other parties’ pension benefits to be paid to you
· A Property Adjustment Order transferring some of the other parties’ property to you
· An Order granting a surviving qualified cohabitant provision out of the estate of a deceased cohabitant’s estate. An application for provision out of a deceased cohabitants estate must be made no later than six months after a Grant of Probate or Letters of Administration have been extracted.
It is not a given, however, that you will be entitled to any of the above reliefs. The Court will take into account a variety of factors when deciding whether or not to make an Order. Such factors include:
· The financial circumstances, needs and obligations of each cohabitant
· The rights of others to include former spouses and dependent children from previous relationships
· The duration and nature of the relationship and the contributions made by each party both financial and otherwise
Is there any way around this?
The legislation provides for the recognition of Cohabitation Agreements. Think of these as being like a pre-nuptial agreement for couples moving in together as opposed to marrying each other. A couple may decide to have an Agreement drafted which provides for the financial arrangements in the event of their relationship breaking down. For a Cohabitant’s Agreement to be valid, the following conditions must be met:
· Each party must obtain independent legal advice or legal advice together and have waived their right to independent legal advice
· The Agreement constitutes a contract and complies with the laws of contract
· The Agreement must be signed by both parties
A Cohabitant’s Agreement may provide a term which states that the redress scheme under the 2010 does not apply to them, thus enabling a couple to contract out of the scheme. However, Cohabitant’s Agreements are enforceable by the Court and the Court has the power to set aside or vary them if enforcing the terms of the Agreement would result in a serious injustice.
Bringing up the subject of a Cohabitant’s Agreement may seem completely unromantic and certainly is not an easy subject to broach but it can create a lot of clarity and protect against costly legal proceedings down the line.
If you are interested in having a Cohabitation Agreement drafted or if you wish to seek relief under the Redress Scheme please contact William Cahir or Aisling Carr, Family Law Solicitor at Cahir Solicitors Phone 065 6828383 or email at [email protected]. Visit www.cahirsolicitors.com to read more about Family Law related topics.