Rights of cohabiting couples (couples living together)
- Introduction
- What is cohabitation?
- What rights does a cohabiting partner have?
- Redress scheme for cohabiting couples
- Preparing for the future with a cohabitation agreement
- Further information
Introduction
Your legal rights as a partner depend on whether you are married, in a civil partnership or living together. In general, you have fewer rights if you're living together than if you're married or in a civil partnership.
What is cohabitation?
Living together with someone is also sometimes called ‘cohabitation’.
A cohabiting couple is a couple that lives together in an intimate and committed relationship, who are not married to each other and not in a civil partnership. Cohabiting couples can be opposite-sex or same-sex. A cohabiting relationship can continue to be ‘intimate’ even if it is not sexual.
If you live together you may sometimes be described as common-law husband and wife. There is no such thing as a common-law husband and wife in Irish legislation. However, couples living together now have certain rights if the relationship ends (through death or separation), though this depends on how long you have lived together and if you have children together (see Redress scheme for cohabiting couples).
What rights does a cohabiting partner have?
While couples living together now have certain rights in the event of the death of either partner, or the breakup of your relationship, cohabiting couples do not have the same legal rights and obligations as married couples or civil partnerships. This has a bearing on important life events, including buying property, having children and inheritance.
For example, if you are living with your partner and you die without a will, your partner has no automatic right to any share of your estate (property, money and possessions) no matter how long you have been together.
Even if your partner has provided for you in their will, cohabiting partners pay Capital Acquisitions Tax (CAT) at 33% on gifts/inheritance over €16,250. However, if you receive a gift or inheritance from your spouse (your husband or your wife) or your civil partner, you are exempt from Capital Acquisitions Tax (CAT).
Given the legal differences between being married and living together, this page signposts you to some of the issues you should consider if you are living with your partner:
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. The types of orders you may apply for under the redress scheme include property adjustment orders, maintenance orders and pension adjustment orders.
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
You must apply for these orders within two years of your relationship ending, unless there are exceptional circumstances. The rules of the scheme are set out in the Cohabitants are defined in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
Inheritance
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.
If your relationship ended 2 years or more before the death or your ex-partner, you may only apply to the court for a portion of their estate if you were financially dependent on them, for example, you had been getting a maintenance payment from them, or had applied to the court for a maintenance, property or pension adjustment order.
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).
Some examples to which the CAT exemption apply are:
- Transfer of property
- Maintenance payments
- Property or pension adjustment orders
- A benefit from the net estate of a deceased cohabitant
Dwelling House Exemption
If you qualify for the Dwelling House Exemption, it may be possible to inherit the family home from your deceased partner without paying Capital Acquisitions Tax (CAT) if:
- The property is/was your principal private residence for 3 years prior to the gift or inheritance
- You have no other beneficial interest in any other residential property at the date of the inheritance
- You remain living in the property for 6 years after the gift or inheritance. This does not apply if you are over 65 year of age.
If the Dwelling House Exemption does not apply, you may be liable to pay 33% CAT on the value of any inheritance that exceeds €16,250.
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.
Further information
These are complex matters with serious implications for your financial security, so it is importance to get advice from a qualified professional such as a solicitor or financial advisor on your specific circumstances. Advice is also available from: