New rights and obligations relating to couples that cohabit have been introduced pursuant to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the Act”) which came into law in January 2011. The rights and obligations for cohabitants in the Act are a radical departure from the pre-existing position whereby cohabiting couples had little or no rights or obligations as against each other. It is important for couples living together to understand their possible new rights and obligations but it is also important for such couples to be aware that it is possible to contract out of the Act as it relates to cohabiting couples.
What is a Cohabitant
A Cohabitant is defined by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 as: “one of 2 adults (whether of the same or 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.
In determining whether or not two adults are cohabitants, the court is obliged to take into account all the circumstances of the relationship and in particular will have regard to the following:
- the duration of the relationship;
- the basis on which the couple live together;
- the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
- 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 or personal property;
- whether there are one or more dependent children;
- whether one of the adults cares for and supports children of the other; and
- the degree to which the adults present themselves to others as a couple.
It may be of interest to note that a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature.
A person only qualifies as a cohabitant if that person 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 moredependent children, and
- of 5 years or more, in any other case.
Notwithstanding the above, an adult who would otherwise be a qualified cohabitant is not a qualified cohabitant if:
- 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
- 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.”
Rights of a Cohabitant
The position regarding cohabitants has for many years been loaded against the cohabitant who is financially dependent on their partner. For example, take the example a woman who has given up her career with the agreement of her partner to have children and who has been a de facto wife and mother for many years. The father, her partner, is the one who owns the house, has the pension and is the sole earner. In the event of a breakdown in this relationship prior to this Act, the mother would have been in an extremely vulnerable position.
She would have had no claim to the house other than for money she had actually invested in it and would have no entitlement to maintenance or pension provision for herself, only maintenance for the children. In this example the mother would have to possibly issue two sets of proceedings – in the family courts for maintenance for the children and in the civil courts for redress for any financial contributions made towards their house. The Act seeks to address such a situation and to extend a safety net to such a person by giving them the opportunity to apply to Court for relief, including Maintenance, Pension Adjustment Orders and Property Adjustment Orders.
It is important to note that cohabitants can contract out of the Act pursuant to Section 202 of the Act. Such an agreement is binding on the parties in the event that they separate or one of them dies, unless a court takes the view that the agreement should be set aside on the grounds that it causes a very serious injustice. Cohabiting couples therefore should consider entering into such an agreement as it should result in clarity and certainty in the event that the relationship breaks down or one party dies.