Civil Partnership and Cohabitation Agreements

02 Jul Civil Partnership and Cohabitation Agreements

Many people are under the impression that the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 only applies to gay couples. This is not so. Since January 1st 2011, any couple, gay or straight, who have lived together in an intimate relationship for a period of 2 years (if they have a child) or 5 years (if they have not) may be covered by the Civil Partnership and Cohabitants Act.

Until this Act came into force at the beginning of this year, unmarried couples had no automatic legal rights to the assets or the assets of their partner. In particular, an unmarried partner had no automatic right of inheritance and frequently found himself heavily penalised as “stranger in blood” for inheritance tax if the partner died.

Civil Partnership: Since the beginning of the year it is now possible for a same-sex couple to register their union as a Civil Partnership, following which such automatic rights will ensue. For many gay couples, this will provide enormous peace of mind. Up until now, their partners were denied the status of next of kin with all of the tax, pension, medical, legal, inheritance and other implications this can bring with it. That said, if the relationship fails, the dissolution of the Civil Partnership will follow a similar course to that already laid down for married couples, although the legislation does not cover the provisions for children in anything like the same detail.

All Cohabiting Couples: However, what most people don’t realize is that the Act also applies to all Cohabiting Couples, whether they intend it or not, as and from the beginning of this year, providing they meet certain criteria. If those criteria are satisfied, then on the termination of the relationship, the financially dependent partner may be able to seek “redress”, i.e. financial assistance from the other partner or from his or her estate. Whether two people qualify
as “Cohabitants” for the purposes of the Act will be a question of fact in each case. If this is disputed by one or other of the couple, the Court will consider various factors in reaching a decision as to whether a particular couple come within the legal definition of the term, to include the length of time the couple had been together, how they conducted their lives together, their financial dealings with one another, any children they may have and the totality of their relationship generally.

If the Court is satisfied that the couple were indeed a Cohabiting couple within the meaning of the Act the Court may then make Orders granting financial relief to the financially dependent partner, if it deems it appropriate to do so.

Anyone who is still legally married cannot be part of a Cohabiting couple in a different relationship. Likewise, anyone who has left the marital relationship must have lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years if he or she is to qualify for the description “Qualified Cohabitant” within the meaning of the Act.

It is important to be aware that you can be a Cohabiting Couple within the meaning of the Civil Partnership Act whether or not you want to be or intend to be.

Couples may enter into Cohabitation Agreements in which they set out the terms on which they wish to live together generally. Likewise, it is possible to enter into a valid “Opt Out” agreement under Section 202 of the Act in certain circumstances. It is specifically provided by the Act that where a relationship has terminated to which Act applies, the Court can vary or set aside a Cohabitants Agreement in exceptional circumstances where its enforceability would cause
serious injustice.

The above is a very simple potted version of a very complex new piece of legislation and is intended only as a very general overview. If you believe that you may come within the terms of this new legislation and have concerns about your rights and/or obligations you should take advice as to how best to protect you and your loved ones.