There is an increasing number of couples in Ireland choosing to live together without marrying or entering a civil partnership. While this is becoming increasingly common, Irish law still does not treat cohabiting partners in the same way as spouses and thus the same rights and protections are not afforded to them.
In an effort to narrow these discrepancies, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 granted important protections for certain cohabiting couples. Below, we outline what these rights are and what they mean in practice.
What Is a Cohabiting Couple?
A cohabiting couple is defined as two people who live together in an intimate and committed relationship, who are not married to one another and not in a civil partnership.
The relationship may be opposite-sex or same-sex. It does not need to be sexual to be considered “intimate and committed”.
Living together alone does not create legal rights. Rights only arise if the partners meet the statutory definition of a “qualified cohabitant”.
Who Is a “Qualified Cohabitant”?
A person is considered a qualified cohabitant if:
- The couple lived together for at least five years, or
- They lived together for two years and have a dependent child together
A person may still qualify even if one partner is legally married to someone else, provided they have lived apart from their spouse for at least four of the previous five years. Only qualified cohabitants can apply for financial orders if the relationship ends. Applications under the cohabitant redress scheme must generally be made within two years of the relationship ending, unless exceptional circumstances apply.
What Rights Do Qualified Cohabitants Have?
Cohabiting partners do not receive automatic financial rights. Instead, a qualified cohabitant may apply to the court for financial redress if the relationship ends through separation or death. The redress scheme for cohabiting couples means that one can get similar orders from the court as are available to married couples when they separate if the court is satisfied that one of you was financially dependent on the other.
The following orders may be available:
- Maintenance
The court may order maintenance where a partner was financially dependent on the other.
- Property Adjustment Orders
The court can adjust property rights where appropriate. This is important because the family home normally belongs to the person whose name is on the title deed.
A cohabiting partner can seek a property adjustment order where, for example:
- They contributed to the purchase price.
- They contributed to the mortgage.
- They can show financial dependence.
- Pension Adjustment Orders
A qualified cohabitant may apply for a share of a pension. This depends on the rules of the pension scheme and may involve retirement benefits or, in some cases, death-in-service benefits.
- Provision from the Deceased Partner’s Estate
If a qualified cohabitant dies without making adequate provision, the surviving partner may apply to the court for a share of the estate. Some rules apply to applications:
- The application must be made within six months of the Grant of Probate.
- These rights do not override the rights of a legal spouse.
- If the relationship ended more than two years before the death, financial dependency must be shown.
Capital Acquisitions Tax (CAT)
Cohabiting partners do not receive the tax exemptions available to spouses and thus do not receive any exemption to CAT. The usual CAT rates will apply:
- Tax-free threshold: €20,000
- Tax rate on the remainder: 33%
Some reliefs may be available in limited circumstances to cohabiting partners, such as the Dwelling House Exemption. If you qualify for this exemption, it may be possible to inherit the family home from your deceased cohabitant without paying 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.
Parental Rights for Cohabiting Couples
Children of cohabiting parents have the same rights as children of married parents.
However, parental rights can differ.
Guardianship of fathers
In Ireland an unmarried father is not automatically a guardian of a child, unless:
- He lived with the child’s mother for 12 consecutive months, including at least three months after the birth.
He may also become a guardian by:
- Signing a statutory declaration with the mother, or
- Applying to court.
Why These Rules Matter in Practice
These distinctions can have significant consequences. For example:
- A surviving partner may receive nothing if their partner dies without a will.
- Long-term cohabiting couples without children may have no rights at all if they did not reach the five-year threshold.
- CAT may apply where no reliefs are available.
- A cohabiting father may not automatically be a guardian unless the cohabitation period is satisfied.
Understanding these rules helps couples make informed decisions about their future.
How Cohabiting Couples Can Protect Themselves
Cohabiting partners can reduce uncertainty by taking practical steps:
- Making a cohabitation agreement.
- Making a will, particularly where children or shared assets are involved.
- Clarifying property ownership when buying or improving a home.
- Updating beneficiary nominations for pensions and life insurance.
- Seeking legal advice.