Posted in Family Law
by Karen O'Donovan
on Wednesday 21 January 2015

 The 2011 census found that there were 143,600 cohabiting coupes in Ireland. This growing number of couples who chose to live together outside of marriage provided the impetus for reform.

Cohabitation in Ireland is governed under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 it established a presumptive scheme (with the option to 'opt out') of unmarried unregistered cohabitants whether same or opposite sex. Prior to the 2010 Act cohabitants had relatively zero legal recognition. A qualified cohabitant is defined as an adult who was living with the other adult as a couple for a period of five years or more (two where there are dependent children of the relationship) immediately before the time that the relationship ended whether through death or otherwise. A difficulty that arises in comparison to that of a marriage is the determination of the relationship length as there is no official record as to the commencement of the relationship whereas with a marriage it commences upon registration.

In Scotland the law in relation to cohabitation is quite advanced and efficient in comparison. Under the Scottish cohabitating scheme there is no minimum period of cohabitation before the statutory label of co habitant can be applied. The Family Law (Scotland ) Act 2006 defines a 'co-habitant' as a person who is or was living with another person as if they were husband and wife or two persons of the same sex who are or were living together as if they are civil partners. The act makes regard to not only the length but also lie emphasis on the nature and extent of financial arrangements of the relationship. There is evidence to support this system, which it does not give rise to ammeritous claims and lack of prescribed period has not led to a floodgate response during its nine years of existence this is quite a strong argument in favour of such a scheme.

While England and Wales do not have any legislation regulating co habiting couples as of yet, the Law Commission has recommended 'automatic eligibility' where there is a child of the relationship and a minimum duration requirement without a child. The Law commission are in favour of the 'opt-out' scheme as it “strikes the appropriate balance” , instead of the 'opt-in' scheme which the Law Society of England and Wales have stated that the drawbacks of an opt-in in redress schemes outweigh the benefits of certainty and explain that “the most likely victims of injustice- the vulnerable, disorganised, pressurised, naive or ill-informed would be the very people unlikely to register their partnership or be persuaded not to register”.

The Irish Law Reform Commission previous to the 2010 Act recommended the applicant be able to show “serious injustice” would arise if no right of application were granted especially where “substantial contribution” was made early in the relationship. Unfortunately this was not included in the Irish Act. Ireland, it would appear is the only jurisdiction out of the three mentioned above and possibly on a global context that has a minimum duration requirement to fulfil where there is a child of the relationship, which may suggest Ireland is focusing on the marriage cohabitation link solely rather than accommodating a parent/child link also which was suggested by Niamh Rodgers.

None of the above jurisdictions above have adopted an assimilationist approach which equates cohabitants with spouse. New Zealand has adopted this approach and extends its remedies on divorce to cohabitants who have a child of the relationship or have been together for three years through the Property (Relationships) Amendment Act 2001. However it should be noted, in this jurisdiction it would not be possible to adopt such an approach as cohabitation does not have equal legal status to that of marriage in the Irish constitution.

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