However, marriage in Ireland has been getting a makeover long before this historic vote. Marriage, for many years, was the starting point for creating a family, but as the economy grew in the 1970s and the power of the Church declined, cohabitation started to take place between unmarried people.
Initially viewed as controversial, today people living together without being married is part and parcel of the social landscape of the country. Many people have children together while cohabiting, and Jane Gray, sociologist at Maynooth University says that today marriage is often the end point of family creation with people tying the knot after their children are born and they’re established in their careers. Of course, some people choose not to marry at all even if they do have children and a home together.
With this development, the concept of “common law” spouses has emerged; people who live together in a long-term relationship that resembles marriage, sharing expenses, perhaps raising children, but are not in a legal union.
While people have every right to create a relationship that best suits them, understanding what rights might pertain to them is critical.
Marriage is still viewed by the State as superior in the rights it extends to spouses compared to non-marital relationships. That said, as cohabitation has become more and more prevalent, cohabiting rights in Ireland have grown.
Parenting rights for unmarried couples
Many unmarried fathers think they will have joint guardianship rights to their children if their relationship breaks down provided their names are on the birth certificates. This is incorrect, but The Children and Family Relationships Act 2015 made some changes in favour of unmarried fathers.
If an unmarried father lives with the mother of his child or children for 12 months, including at least three months with the mother and child following the child’s birth, at least one year and three months after the birth of the child, he will automatically have the same guardianship rights as the mother. This rule does apply retrospectively, only from the time the act was signed into law (January 2016).
Additionally, step-parents and grandparents may apply for guardianship too if they have cared for the child or children in an in loco parentis manner.
If a cohabiting relationship breaks up, unmarried fathers do have a legal responsibility to pay maintenance for their child’s upkeep. However, there are no automatic right / obligation to pay maintenance for the mother of the child.
Property rights of cohabiting couples
Unmarried couples who want to buy a house together can purchase the property in one of two ways:
- Joint tenancy
- Tenancy in common
A joint tenancy means that the property is owned by two people in a relationship and provides valuable protection in the event that one person passes away. While legal advice would be necessary, the surviving partner should inherit the property. It’s worthwhile to note that if only one person paid for the house, it’s not a given that the surviving partner would inherit half or any share of the proceeds if the property was sold.
Purchasing a property through a tenancy in common agreement allows a couple to define the shares each person has, e.g. each person may own 50% of the house, or one person may own 30% and the other person 70%. With this agreement, each partner can leave their share of the house to someone other than their partner if they die, such as a family member or close friend. A partner may leave their share to their cohabitation partner but this will only be enforced if this wish is stated in a will. Without a will in place, there is no protection for the surviving partner as the deceased’s share of the property will form part of their estate and their family, or a separated spouse or civil partner, will have a claim to it.
Cohabiting couples who are raising children do not have the same protections over the family home that the Family Home Protection Act 1976 provides to married couples. If a married couple breaks up, each spouse has the right to veto a sale of the family home. Both spouses need to agree to sell the home before a sale can be initiated (these rights extend to civil partnerships too).
Common law partners do not need to obtain written permission from both parties before the house can be sold. The person who owns the house can sell it as and when they wish to.
Rights on death or separation
It’s a sad but common scenario that cohabitants can lose their standard of living or even the roof over their head if one partner dies or if the couple separates. A will is a critical document to have in place for any family, and for unmarried couples the absence of one can mean no legal redress at all.
The Succession Act, which covers intestacy, does not provide for cohabitants, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 allows for an economically dependent partner to be considered when a long-term partner’s estate is being wound up. The 2010 Act also allows a financially dependent cohabitant to apply to Court for redress on the breakdown of the relationship. However, no rights are automatically awarded to a financially dependent cohabitant if the relationship ends as the result of death or otherwise and each case will be looked at on its individual merits.
For a person to prove that they were financially dependent on their cohabiting partner, an application would have to be made to Court under the Act. One of the criteria to prove that a person is a “qualified cohabitant” is to show that the relationship lasted five years or more. For unmarried couples with children, this period is reduced to two years or more.
Our specialist family law team provides expert advice to our clients on all aspects of family law and we advise on cohabitation agreements and non-marital relationships frequently. Feel free to contact us if you have a family law question, we’d be delighted to hear from you.
10 March 2017