Living together and marriage: what are the legal differences?
- Introduction
- Main legal differences between marriage and living together
- Preparing for the future with a cohabitation agreement
- Redress scheme for cohabiting couples
- Getting advice
- Further information
Introduction
Your legal rights as a partner depend on whether you are married, in a civil partnership or living together (cohabiting). In general, you have fewer rights if you and your partner are living together than if you're married. It’s important to know the differences and understand how they might impact you.
Main legal differences between marriage and living together
Many couples decide that they do not want to get married for many different reasons. But if you decide to live together, it is important to understand how this might impact you if your relationship breaks down or ends through death. The following table outlines some of the main differences.
| Married couples | Couples living together | |
|
Property and the family home |
The family home of a married couple is protected in legislation. One
spouse or civil partner cannot sell, mortgage, lease or transfer the
family/shared home without the consent of the other spouse or civil
partner.
If your spouse or civil partner dies, you do not have to pay Capital Acquisitions Tax on any inheritance you receive from them. |
If you are living with your partner in their house, they do
not need your written consent before they can sell or lease the house.
Even if you are joint tenants (you both co-own the property in equal shares), if you are not married and your partner dies, you (the surviving joint tenant of the property) may be liable for Capital Acquisition Tax as a result of becoming full owner of the property through survivorship. |
Children and guardianship |
Married parents are automatically joint guardians of their children and have equal rights in relation to their children. Neither separation nor divorce changes this. | All mothers, whether they are married or not married, have automatic guardianship to their children. A father who is not married to the mother of his child does not have automatic guardianship rights. |
| Children and financial responsibility | Both parents are responsible for financially supporting their children. |
|
|
Inheritance |
If you are married or in a civil partnership, your surviving partner
has the right to a share of your estate (your possessions) when you
die, no matter what you have said in your will.
Spouses and civil partners are not liable for Capital Acquisitions Tax (CAT) on inheritances from each other. |
If you have been living together with your partner and you die
without a will, your partner has no automatic right to any share of
your estate no matter how long you have been together.
Even if your partner has provided for you in their will, you will be treated as strangers for Capital Acquisitions Tax purposes in terms of your inheritance. Cohabiting partners pay tax at 33% on gifts/inheritance over €16,250. |
| Inheritance and children | Children (no age restrictions) have the same inheritance rights from their parents' whether their parents are married or not. |
|
| Pensions for surviving spouses or partners | If your spouse or civil partner dies, you may qualify for a Widow's, Widower's or Surviving Civil Partner's (Contributory) Pension. | You cannot qualify for a Widow's, Widower's or Surviving Civil Partner's Pension no matter how long you have been together. |
Preparing for the future with a cohabitation agreement
If you live with your partner and you do not intend to marry, you can protect your financial interests by entering into a ‘cohabitation agreement’ (also called a cohabitant’s agreement). This is a voluntary, signed agreement, which allows you to specify the day-to-day joint financial arrangements of your relationship.
You can also specify how you plan to separate your assets, such as shared property, should the relationship come to an end. 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 should mean the plans you make are fair and reasonable to both of you.
Redress scheme for cohabiting couples
If you have been living with your partner and your relationship ends, you may be able to avail of the Redress scheme for cohabiting couples. The aim of the redress scheme is to protect a financially dependent member of the couple if the long-term cohabiting relationship ends (either through death or separation).
Under the redress scheme, cohabiting couples can get similar orders from the court as are available to married couples when they separate or divorce if the court is satisfied that one of you was financially dependent on the other.
To apply for court orders under the redress scheme, you must be a qualified cohabitant. This means you must have been:
- Living together in an intimate and committed relationship for at least 5 years, or
- Living together in an intimate and committed relationship for 2 years if you have had a child with your partner
The rules of the scheme are set out in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
In certain circumstances, if your partner dies when you are still in a relationship together, you can apply to the court for a portion of their estate, but it is not necessary to prove that you were financially dependent on them. You must apply within 6 months after the probate or administration is first granted. A gift or inheritance taken on foot of a court order under Part 15 of the Civil Partnerships and Certain Rights and Obligations of Cohabitants Act 2010, is exempt from Capital Acquisitions Tax (CAT) including a benefit from the net estate of your deceased partner.
Getting advice
Many couples decide that they do not want to get married. However, if you decide to live together, it is important to understand how this might impact you if your relationship breaks down or ends through death. Talk to a solicitor about how you can protect yourself and each other, and plan for the future.