Legal Matters – I am living with my partner and we are not married – what are my rights to their property?

Síne Enright

by Síne Enright

Invariably in modern society, most couples chose to live together before they commit to marrying one another. Many couples chose not to marry at all but to live together in a committed relationship.

While children of non-marital families have the same rights as marital children to inherit from their parents and to receive maintenance and support, the same cannot be said for the couples who are in a cohabiting relationship.

If you are in such a relationship and that relationship breaks down, you do not have the same automatic rights as a husband or wife would to a share in your partner’s sole assets. (This does not necessarily apply to property which you own or have purchased together.) However, if you are a “qualified cohabitant”, you may be entitled to seek redress from the court in these circumstances.

You are a “qualified cohabitant” if you have lived with your partner in an “intimate and committed” relationship for 5 or more years.

If you have a child or children with your partner, you are deemed to be a qualified cohabitant if you have lived with your partner for a period of 2 or more years.

The words “intimate and committed” are not defined under the law.

You cannot be deemed to be a qualified cohabitant if you are married to another person, unless you have lived apart from that person for at least 4 years during the previous 5 years.

As a qualified cohabitant, should your relationship break down, you have no automatic entitlements to maintenance or support, however you are entitled to make an application to court under what is known as a “redress scheme” within 2 years of the relationship ending.

You and your solicitor will have to satisfy the court that you are financially dependent on your partner.

There are a number of reliefs available if the court deems it fair in the circumstances to grant them, such as:

  1. Maintenance

  2. A lump sum payment

  3. Property adjustment Order – This is an Order which transfers property from one qualified cohabitant to another. If your partner solely owns the house in which you are living as a couple, he or she can freely sell that house without your consent. This cannot happen where a married couple resides in a house together as they are protected by the Family Home Protection Act, 1976.

  4. Pension adjustment order – this is an Order which allows for one qualified cohabitant to benefit from the other qualified cohabitant’s pension.

  5. A share in their estate on death – you have 6 months to make an application to have provision made for you out of your partner’s estate. Unlike a surviving spouse who has a legal right to a share in their deceased spouse’s estate (this was explained in my September article), unmarried couples have absolutely no legal right to a share in their partner’s estate if they die. It may be wise to discuss making a Will in favour of each other. However, you should seek tax advice regarding the implications of inheriting from one another as, for tax purposes, you would be deemed to be strangers-in-blood.

These Orders are not granted automatically, each case is considered on its own individual merits.

Couples may enter into a Cohabitation Agreement. This is an agreement between cohabitants which puts in writing your financial plan for living together both during the relationship and in the event that the relationship ends. Couples can also decide to opt-out of the redress scheme in their Cohabitation Agreement. It would be very important for both parties to have their own independent legal advice if doing so, so that one party cannot subsequently argue that they were pressured into signing the Cohabitation Agreement. But do be mindful that the court has the power to have the Cohabitation Agreement set aside if it feels that enforcing the agreement would cause serious injustice to the applicant party.

Disclaimer – The information set out in this article does not constitute or contain legal advice. The author cannot guarantee that all information will be applicable to your situation or that it is, from time to time, accurate or complete. Both the author and the West Cork Times disclaim any liability in connection with any actions taken or not taken based on the content of this article.

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