Cohabitation - Law Reform Commission recommendations and Joint Oireachtas Committee Report

The Law Reform Commission published a consultation paper on Cohabitation in 2004. The 2002 Census indicates there were 77,600 cohabiting couples in 2002, (an increase of 46,300 from 6 years earlier) 1,300 same-sex cohabiting couples were recorded in 2002 (an increase from 150 recorded in 1996.) These figures are likely to rise in the 2006 Census.

The suggested definition of 'cohabitees' would apply to those who live together in a 'marriage like' relationship for a continuous period of three or two years where there is a child of the relationship. Such cohabitees are described as 'qualified cohabitees'. The Commission definition excludes couples where one party is married.

Property Rights

Legislation currently in place to protect the property rights of a non-owning spouse applies only to married couples. The Commission was critical of the huge lack of awareness of co-ownership agreements, which are commonplace in other jurisdictions.

The consultation paper does not recommend that the same property rights be conferred on qualified cohabitees as are given to married persons. Rather, it is recommended that property adjustment orders for qualified cohabitees be legislated for. Such property adjustment orders should only be made in exceptional circumstances where the Court considers it just and equitable to do so having regard to the financial and non-financial contributions made directly or indirectly by either party to the purchase, conservation or improvement of any of the property and to contributions made by either of the parties to the welfare of the other party to the relationship, or to the welfare of the family. Work in the home, such as raising a child can be taken into consideration when conferring property rights on a qualified cohabitee. An application for such should be made within one year of the relationship breakdown.

Succession Rights

As the law currently stands, a cohabitee has no succession rights in the absence of a specific bequest from a partner. The Commission has recommended that a discretionary scheme be established to enable a qualified cohabitee to make an application to Court where he feels that proper provision has not been made. Such applications are currently made to Court on behalf of children of a deceased under section 117 of the Succession Act 1965.

Pensions

No changes are recommended in relation to private sector pensions. The Commission is not in favour of extending pension adjustment orders, which are available to spouses,

on application to the Court on separation or divorce. However, in tandem with the views of the Commission on Public Service Pensions, the Law Reform Commission is recommending to Government that the provisions of the public service spouses and children’s scheme should be amended to allow for the payment of a survivor’s pension to a financially dependant partner in circumstances where there is no spouse and where a valid nomination has been made.

Taxation

In light of the current policy of individualisation, there are no recommendations to change the income tax and Capital Gains Tax treatment of cohabiting couples. The Commission does suggest however that qualified cohabitees be placed in the group threshold (1) (the threshold available to spouses) for the purposes of Capital Acquisition Tax. (At present a spouse is entitled to receive aggregated benefits up to in excess of €450,000 without gift or inheritance tax liability).

It is recommended that qualified cohabitees be entitled to the same relief as related persons from stamp duty.

Domestic Violence

It is suggested that the requirement for residency, in respect of a barring order for cohabiting couples, of 6 months out of the previous 9 should be reduced to 3 months out of the previous 12.

Medical Treatment and Other Matters

The Commission proposes that doctors should consider the opinion of cohabitees when treating seriously ill patients with whom they cannot communicate. It is proposed that

qualified cohabitees be included in the definition of dependants for the purposes of a civil action for wrongful death.

All Party Oireachtas Committee on the Constitution

The Oireachtas Committee noted that it was almost 70 years since the enactment of the Constitution and noted the dramatic changes in Irish life. It recognised the value of the traditional family but noted that other family forms should also be given constitutional protection. It commented that legislation could extend to extra marriage families without constitutional amendment. The Committee recommended that the UK model be followed, where cohabiting partners would have an opportunity to register their union as a civil registration. This would apply to those who would disagree with marriage and to those who are unable to marry, such as same-sex couples.

In Conclusion

The Commission proposition is for a presumptive scheme of legally recognising cohabitees. There would be no requirement to register the cohabitation and no “opting out” would be available. Reservations have been expressed about conferring

rights and obligations on those who have chosen not to marry or to register their union. A dramatic example cited is a recent Australian case where the parties, who were presumed to be “de facto” spouses, applied for divorce without having married!

The debate continues.

Judy O’Kane
June 2006