Rights of Unmarried Couples in Ireland

Rights of Unmarried Couples in Ireland

Unmarried couples in Ireland do not enjoy the same legal rights as married couples. This has a bearing on important life events, including buying property, having children and ring-fencing an inheritance.

Rights of cohabiting couples

When you live together but you’re not married, you are said to be ‘cohabiting’. The rights of cohabiting couples in Ireland are set out in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. According to the Act, cohabitants are defined as two same-sex or opposite sex adults who are:

  1. Not married to each other
  2. Not in a civil partnership
  3. Living together in an intimate and committed relationship
  4. Not related to each other

Although the law provides cohabitants with some security, the rights of unmarried couples are a far cry from the rights enjoyed by married couples. Contrary to popular belief, there is no such thing as a common law husband or wife. In Ireland, marriage is considered to be a superior status. This is reflected in the legislation.

Property: rights of unmarried couples

So, where does this leave you if you move into your partner’s property? Unfortunately, if your relationship breaks down and you are not the legal owner, you may be left with very little. Your partner can ask you to leave the property, potentially leaving you without a roof over your head. Furthermore, your ex-partner can sell the property without your permission.

If you contributed towards the mortgage or down payment, or you are financially dependent on your ex-partner, then you may be able to take action through the redress scheme. This allows cohabitants to get the same kind of court orders as divorcing couples. For example, you could get a property adjustment order, which will give you certain rights to live in the property. However, you are not automatically entitled to anything, and your only option (unless you come to a voluntary agreement) will be to start legal proceedings.

But what if you buy a property together? In this situation, your rights depend on how you buy the property. If you buy as joint tenants, then you both own an equal share of the property. If your relationship breaks down, you are entitled to 50% of the property. You may also inherit your partner’s share of the property, if he/she dies before you. However, your legal position may differ if you did not contribute anything towards the purchase.

If you buy as tenants in common, then you can own unequal shares of the property. If your relationship breaks down, you each walk away with a set percentage of the property. This is dictated by the amount you contributed towards the purchase price. If your partner dies before you, then you will not automatically receive their share of the property, unless he/she has written a Will stipulating that you are to be the beneficiary. Otherwise, their share of the property will be given to their next of kin (if there isn’t a Will) or another beneficiary of their choosing (if there is a Will). Because you’re not married, you won’t be considered his/her next of kin.

Children: rights of unmarried couples

Unmarried fathers do not automatically become legal guardians for their children – even if their name is on the birth certificate. Guardianship can be gained after the child is born, so long as the father lives with the mother and child for at least 12 consecutive months, including the three months following the birth. However, this only applies to births that occur after 18 January 2016, which is when the law was changed. It is also possible to obtain guardianship through a Statutory Declaration (which requires the mother’s consent) and through the courts.

This can impact an unmarried father’s ability to secure custody over his children. Where a cohabiting couple separate, the courts will decide where the children should live, based on what is best for the children. If the father has yet to obtain guardianship, the mother may be the sole guardian. Aside from unusual circumstances, this may influence the court to give custody rights to the mother. However, the father is still entitled to access rights, so long as it is safe to do so.
The primary care-giver can request maintenance from the other parent, just as divorcing couples can. However, if you are unmarried, you must first prove that you were living together for two years and that you are financially dependent on your ex-partner.

Inheritance/separation: rights of unmarried couples

Unmarried couples do not have any automatic rights when it comes to inheritance. This means that if your partner dies without a Will which names you as a beneficiary, then you will receive nothing. It does not matter if you live together. Nor does it matter if you have been in a relationship for a long time. This can lead to heart-breaking situations where a bereft partner is actually forced from their home, leaving them with no place to live and potentially no money.

You can apply for provision from your deceased partner’s estate, but you must prove that you were cohabiting for five years (or two years if you have children), and that you were financially dependent on the deceased.

The same rules apply if your relationship breaks down and you separate. In this situation, you are not automatically entitled to any of your ex-partner’s assets. You can apply for provision, but you must meet the criteria set out above.

Put legal agreements in places

Given the lack of rights afforded to unmarried couples, it is absolutely essential that you protect your position with the use of legal agreements. For cohabiting couples, the most important legal documents to put in place are:

  1. A Cohabitation Agreement
  2. A Shared Ownership Agreement (also called a Co-ownership Agreement)
  3. A Will

A Cohabitation Agreement sets out what should happen to your money, finances and children, in the event that your relationship breaks down. You both need to get independent legal advice for the agreement to be valid. The advantage of a Cohabitation Agreement is that you prepare for future events while your relationship is still amicable. This ensures that the plans you make are fair and reasonable to each person.

A Shared Ownership Agreement is similar to a Cohabitation Agreement, but deals specifically with any property that you and your partner buy together. You can detail how much each person contributed towards the property purchase, and how each person should be remunerated if the relationship comes to an end. You can also set out the process that should be followed. Normally, you’ll have the option of buying each other out. If this isn’t possible, the property will be put on the open market.

Finally, a Will allows you to name beneficiaries to inherit from your estate. Without a Will, your estate will be distributed according to the rules laid out by the State. These do not automatically provide for unmarried partners. If you want your partner to receive a share of your estate, you must make a Will. Otherwise, he or she could be left with nothing.

Speak to our solicitors

If you are concerned about your limited rights as a cohabitant, please contact us at Mullins & Treacy LLP Solicitors. We can explain the law in more detail, and can help you draft various legal agreements to better protect your future. We are client focused and results driven.

Call us on 051 391 488 or email reception@mullinstreacy.ie for a free no obligation enquiry.

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