Cohabitation part of Bill vulnerable to challenge, says expert

 

ASPECTS OF the Civil Partnership Bill dealing with the rights of cohabitees could be vulnerable to constitutional challenge, a family law expert has warned.

Geoffrey Shannon was speaking at a Law Society conference on the Bill. He said while he welcomed the Bill, he was concerned about provisions in its second part, where legal liabilities can be imposed on people without them realising it. This second part of the Bill provides for two types of cohabitees – those who sign cohabitation agreements and those who lived together for three years (two if they have a child or children) and incur obligations, he said.

If this relationship ends through separation or death, a person who is financially dependent can seek a maintenance order against the other person, a property adjustment order or a pension adjustment order. He pointed out that the Bill also provides for people to opt out of such obligations, as well as providing for cohabitation agreements specifying what obligations the people are taking on.

He stressed that the institution of marriage needed to be supported but added that the greatest threat to it came from the inside, rather than from other forms of relationships.

Children had been airbrushed out of the proposed legislation, he said. Although a person could acquire rights as a cohabitee after two years by having a child, no further provision for the child was made in the legislation.

John Mee, lecturer in law in UCC, told the conference that it was possible for a person to become a cohabitee without realising it. The Bill did not state how it would be established when the cohabitation started. Further, to have a valid cohabitation agreement, the couple must each have received independent legal advice.

“It is very unlikely that many people will make these contracts. It is also unlikely people will opt out [of the legal liabilities] for the same reason.” He said there were major problems with the “financial dependency” provision of the Bill, as it did not take into account financial contributions to the relationship, for example the contribution of a lump sum for a joint purpose.

“Why do we need this legislation now?” he asked. “We should do the civil partnership now and start working on cohabitation issues by tackling succession and taxation matters. We don’t need it now.” Muriel Walls, solicitor with McCann Fitzgerald, told the conference that children were sidelined in the Civil Partnership Bill and their rights would have to be tackled by using “bits and scraps” of other legislation.

Giving as an example a lesbian couple where one of them had a child from a brief previous relationship and where most of the care duties were performed by the other partner because of the mother’s work commitments, she pointed out that if the relationship broke up this woman would have no right to seek any contact with the child.

If the roles were reversed and the earning partner was not the biological parent, the child would have no right to maintenance under the Bill.

However, they would have some relief under the 1964 Guardianship of Infants Act, she pointed out, as it allowed for any person who had acted in loco parentis to a child to apply to the court for an order giving access to the child. The court had first to give leave for the making of such an application, so the process was cumbersome.

She said it was regrettable there was no provision in the legislation when dealing with the ending of civil partnerships that the court must be satisfied there was no reasonable prospect of a reconciliation. “This seems to be mean-spirited at the very least and suggests that the stability of civil partnerships is not as important as the stability of marriage,” she said.