Cohabitation

This leaflet looks at some of the problems that may arise for couples who live together outside marriage. Some of the issues concern not only people who are unmarried but there may be couples who having remarried after a foreign divorce discover that the subsequent marriage is not recognised in this jurisdiction and the protection afforded to married people under the constitution and the law does not apply to them. The status of common law wife does not exist in Ireland.

The unforeseen pitfalls that exist for the family outside marriage are many and complex. The purpose of this leaflet is to outline some issues, to increase awareness of them, and indicate some practical methods of protecting the interests of the parties involved.

Children

Since 1987 children are no longer considered 'illegitimate' in law if their parents are not married to each other. The status of Children Act of that year gave all children equal rights to property and maintenance. The Act abolished legal discrimination against them. 

 If the parents are not married to each other, only the mother is automatically a guardian under the law. The natural father with the mothers consent can be appointed joint guardian. Where that consent is not forthcoming a natural father may apply to the court to be appointed guardian. Where there is a dispute between the parents either party can apply to the court for custody of and/or access to their child. In all cases before it the court will consider the welfare of the child as paramount. If the parents of a child subsequently marry each other the father automatically becomes joint guardian with the mother.

 Having the father's name on the register of births may avoid problems over maintenance or inheritance at a later stage, but it does not make the father a guardian or give him rights to make decisions about the child's upbringing. It is however important where one seeks to establish paternity and is important information for a child to have.

Where a mother is a married person there is a legal presumption that her spouse is the father of the child unless:

• They have been living apart for at least ten months before the birth: or

• They are legally separated; or

• The natural father has a court order confirming his paternity: or  

•   (a) A statutory declaration is made by both parents that the mother's spouse is not the father of the child: and

(b) the legal spouse swears a declaration that he is not the father

 For further information contact Treoir (Federation of Services for Unmarried Parents and their Children).

Note: Unmarried partners are not treated similarly to married couples for the purposes of adoption and cannot, as a couple, adopt children.

Wills 

Partners do not benefit from the protection given to spouses under the Succession Act. If a partner dies intestate, i.e. without making a will, the surviving partner has no rights of inheritance. Where property is held jointly, however, it will pass to the surviving partner.

 It is essential for each partner to make a Will, especially where one of the partners is financially dependent. The Will should ensure that all property and possessions (other than those held jointly which pass anyway) pass to the survivor, provided any existing spouse has renounced his/her succession rights to the deceased's estate. We recommend separate and independent legal advice. 

 Partners are treated as strangers for tax purposes and there may be tax liabilities arising on the death of one's partner. (See section on Taxation below). An insurance policy may be taken out under section 60 of the Finance Act 1985. The proceeds of a qualifying insurance policy will be exempt from Inheritance Tax insofar as the proceeds are used to pay the Inheritance Tax liability arising on the death of the insured, or within a year of his/her death, in relation to dispositions made by the insured e.g. under a Will. We recommend that an accountant's advice be obtained in this regard.

 Where a section 60 policy has been taken out, it is recommended that the Will should specify that any liability for Inheritance Tax on the surviving partner be paid for by the proceeds of such a policy, to the extent covered by the policy.

Property

The Family Home Protection Act 1976 does not apply to unmarried couples. If you are buying a home together, you will want to consider whether you will be joint owners or tenants in common. As joint owners you own the whole property between you. If one of you dies, the other will inherit it, subject to tax liability.

As tenants in common, however you each own distinct shares in the property which you may want to leave to someone else in a Will.

Joint owners should consider a mortgage insurance policy to protect the survivor if one partner dies before the mortgage is fully paid.

If you separate and cannot agree about selling the property which you own jointly, you must make an application Court to partition or divide the beneficial interest in the property.

If the property is in one name only and that person decides to sell, the other partner has no say in the matter. The legal owner may ask the other to leave at any time and if necessary the courts will facilitate this by granting an injunction or an eviction.

Notes:

• Deed of Trust: This is a document by which you can record the exact amount of money you have put into the property. You may need to keep a record of this with the Title Deeds. This will be of value if you in the future want the proceeds of sale of the property split in a certain way.  

• Declaration of Beneficial Ownership: It is recommended that where a property is to be held in the joint names of both partners, a simple declaration be made declaring that the property is to be held equally in 'Law and Equity'. This is to avoid confusion where all or most of the purchase price is paid by one partner.

• Stamp Duty: This section deals with a complex area of law and it is recommended that all parties secure independent legal advice.

Taxation

Income Tax

Partners are treated as single persons for the purposes of taxation. They are not entitled to the married person's tax allowances or tax bands. If only one partner is in paid employment it is possible to enter into a legally binding covenant which will provide an income for the non earning partner and which could have some tax advantages. The disadvantage of a covenant is that it becomes a gift for Capital Acquisitions Tax purposes.

Note: Single parents who receive a special income tax allowance will lose this if they cohabit.

Gift/Inheritance Tax

Partners are considered strangers for the purposes of Capital Acquisitions Tax. The threshold level is low and all gifts or inheritances are aggregated. Even a small gift/inheritance can give rise to a tax problem. In the case of the annual covenant referred to above, the sums will be aggregated and gift tax liability may arise very quickly.

It is recommended that professional advice be sought in the context of tax planning.

Pensions

Pension schemes differ. In some schemes the Trustees of the scheme can decide how to divide the benefits between the various dependants. The Employee who is paying into the scheme should enquire from the Trustees what their policy is. It may be possible to nominate a partner as a beneficiary. Couples living together may wish to set up a private pension plan.

Public Service pensions in Ireland are paid to the legal spouse only. The State will not pay a widows pension to person whose marriage is not recognised by the State.

Maintenance

The Family Law (Maintenance of Spouses) Act 1976 does not apply to partners. In the event of a separation, maintenance may not be claimed by the dependant partner. Under the Status of Children Act 1987 and the Family Law Act 1995 children under 16 or, if they are in full time education, up to the age of 23 are entitled to maintenance. (See AIM leaflet on Maintenance)

Should the earning partner fail to pay, the dependant partner can go to either the District Court or the Circuit Court to establish the child's claim. It is also possible to apply to the Court for an Attachment of Earnings to ensure payment.

Should the father deny parenthood, his name on the birth certificate is not sufficient evidence of same. The mother may have to apply to the court to order medical tests which may be produced as evidence. The father would then be liable for maintenance contributions or a lump sum payment may be ordered.

Social Welfare

All the Social Welfare benefits payable to married couples apply to cohabiting partners so long as there is a qualified child forming part of the household. A qualified child is under 18 or up to 22 if in full time education. One parent family payment is not paid where the claimant is cohabiting.

Violence

(See AIM leaflet on Domestic Violence)

Since the Domestic Violence Act 1996 it is now possible to seek some protection from a violent partner. A cohabitee can apply for a protection order, a safety order, an interim barring order and a barring order in certain circumstances. The orders can be sought for the protection of the applicant and/or a dependent person. The Applicant and his/her partner must have lived together as husband and wife for a six month period.

An applicant can not have a violent partner barred from the home if the partner is the legal owner of the property, or if the violent partner owns a greater share of the property than the applicant.

The Domestic Violence Act 1996 operates to protect the victim of domestic violence only in very limited circumstances where the parties are unmarried. If an applicant finds that he/she does not come within the terms of the Act it might still be possible to apply for an injunction in order to protect oneself or a dependent person from a violent partner.

This leaflet is intended only to convey a general idea of this area of the law. Anybody wishing to take legal action should seek competent legal advice before doing so.