ANALYSISAt present, the Irish legal system does not make any provision for the status of cohabiting couples, writes Hilary Coveney
RECENT YEARS have seen significant and sweeping changes in family law in Ireland with increasing rates of cohabitation and the breakdown of non-marital relationships.
Cohabiting couples now comprise 11.6 per cent of all families in Ireland, according to the results of the 2006 Census.
Cohabitants fall into a variety of categories - from young couples living together either prior to, or as, an alternative to marriage, to older couples where one or both may be separated or divorced and either unwilling or unable to enter into marriage.
Indeed, there may be some cases where people living together believe themselves to be validly married, only to discover that a previous divorce and subsequent remarriage may not be recognised in Ireland.
The often used (but entirely erroneous) phrase "common law wife/husband" gave many couples an impression that certain rights or entitlements had accrued from their relationship. To this day, this myth persists with a belief that a legal status attaches to such relationships.
At present, Irish law does not make any provision either for the status of cohabiting couples or any financial or property relief following the breakdown or end of their relationships.
Unlike spouses, unmarried or cohabiting couples have no claim to any property owned by their partner. If a cohabitant is claiming any share in property owned by a partner, they must show an actual financial contribution to the acquisition or improvement of that property. Under the Succession Act 1965, surviving cohabitants also have no legal rights to the estate of their partner, even where their relationship was a harmonious one. Neither can they avail of the tax exemptions and benefits available to married couples on gifts and inheritances.
It is therefore recommended that cohabitants should make wills to protect their partner.
The problems faced by cohabitants on the termination of their relationship, whether by death or otherwise, are very real and significant and can give rise to hardship in many cases. In its report published in December 2006, the Law Reform Commission made a number of recommendations for reform across a wide range of areas including property, succession, maintenance, pensions and tax.
In proposing recognition for both same-sex and opposite-sex couples, the commission suggested that various circumstances should be taken into account, to include the duration of the relationship, the degree of financial dependence or interdependence, the care and support of children and the degree of mutual commitment to a shared life.
The commission also advocates recognition of same-sex and opposite-sex cohabitants in certain circumstances with regard to social welfare, private tenancies, healthcare settings and under domestic violence law. On an ongoing basis, the commission has also encouraged cohabitants to self-regulate their relationship regarding financial and property matters.
Notwithstanding the prevalence of cohabitation, it is clear that marriage remains a central institution in Ireland and abroad. Indeed, there is evidence of a resurgence of marriage in recent years in Ireland, although some of these numbers may be made up by second marriages.
The lives and circumstances of cohabiting couples are many and varied and the legal consequences can be significant. Following references to a Domestic Partnerships Bill or Cohabitants Bill to be published this year by the Government, this area is being watched with interest.
We are also promised legislation to regulate the area of assisted reproductive techniques and a review of pre-nuptial agreements. The United Kingdom has already introduced civil partnerships for same-sex couples which has been described as "marriage in all but name" and it is arguable that an expanded definition of the "family" may be required in Irish family law in time to come.