Unintended consequences of civil partnership law
ANALYSIS:The cohabitants’ part of the Bill is drafted with mature couples in mind, but one size doesn’t fit all, writes CAROL COULTER
IMAGINE THE following: Terry and Jo (or Joe and Terri, the gender roles are irrelevant) met in their first year in college in Dublin. They were both 19. Terry lived in the flat his parents had bought as a base for their child going to college, putting the flat in Terry’s name. Jo lived at home.
They started going out together, and within a matter of months Jo was spending most weekends in the flat. It was agreed that she would move in. They were very happy. Terry was doing very well, working long hours in the library and coming in the top few in his first-year exams. Jo was struggling in college, but she worked part-time in a restaurant, which she enjoyed.
She managed to pass her first-year exams, and in their second year together they settled into a pattern where Joe worked long hours in college, she did the minimum to survive academically and worked in the restaurant, always ensuring there was a meal ready for Joe when he came in from college.
At the end of their second year Terry again did very well, while Jo scraped a pass. She was having doubts about her course, but was very happy in their joint lifestyle. Terry was grateful that all domestic tasks were taken care of by Jo, allowing him to focus on study.
This continued into third year, though by now Terry was feeling bored in the relationship. Jo realised she had no pressing career ambitions and imagined that after graduation they might marry and she thought it would be good to have children young, and later she could assess what she wanted to do.
Terry graduated with first-class honours; Jo failed her exams. Terry embarked on post-graduate studies and they celebrated the third anniversary of Jo moving in, though by now Terry did not think he wanted the relationship to continue. Then a company in Cork with links to the university offered Terry a job linked to his research. For him it combined a job opportunity with an excuse to end the relationship. He told Jo he was taking it and moving, and he did not want her to come.
She was devastated and entered a deep depression, requiring hospitalisation. When she came out of hospital she remained depressed and found it impossible, without qualifications, to get a job. She felt Terry had let her down very badly.
Her older sister, a solicitor, told her she could claim a share in the flat and maintenance from Terry, citing the Civil Partnership Act 2009.
Most of the discussion on this Bill, at present going through the Dáil, has focused on its provision for same-sex couples. However, it also provides for cohabiting couples, with and without children, where one person is dependent and the relationship breaks up through death or separation.
In the section of the Bill devoted to cohabitants, a cohabitant is defined as one of a couple who live together in an intimate relationship for a period of at least three years, two if there are children.
He or she is entitled to seek financial orders if the person can satisfy the court that they were financially dependent on the other cohabitant. The orders that can be sought include a transfer of property, a lump sum, periodic payments and a share in the other person’s pension. If the relationship ends through death, the surviving cohabitant can make a claim on the estate.
In deciding whether to make the order the court will consider a number of issues, including the financial circumstances, needs and obligations of each cohabitant; the duration of the relationship; the contribution that each of the cohabitants made or is likely to make to the welfare of the other, including looking after the home; the effect on the earning capacity of each of the responsibilities either assumed during the relationship, and the extent to which the earning capacity of either is impaired by this; and any physical or mental disability either has.
Jo’s sister feels Jo should claim a share in the flat and periodic payments to tide her over this difficult time in her life on the grounds that she was a qualified cohabitant; she was dependent on Terry and contributed to his academic success and present earning capacity by taking charge of all domestic tasks; this had a negative impact on her earning capacity; and she is at present under a mental disability (depression), enhancing her need for financial support.
Terry is stunned when the papers are served and seeks legal advice. He is told the only way he can avoid making some payment is by fighting it out with Jo in court.
His lawyer tells him he could have avoided getting into this situation in the first place if, at the outset of the relationship, they had entered into a cohabitants’ agreement to provide for financial matters during the relationship or when it ends, including renouncing any financial claim. For it to be valid they would each have to receive legal advice, the agreement would have to be in writing and signed. “But we were only 19,” wails Terry. “We never thought of any of that.”
The cohabitants’ part of the Civil Partnership Bill was clearly designed to deal with the not uncommon situation where a mature couple set up home together, often after one or other of them had left a marriage and could not or did not want to re-marry, and where one partner (often the woman) assumed the bulk of the domestic responsibilities, sometimes including the rearing of children, while the other partner was the main earner. Family lawyers’ files are littered with cases where the dependent partner in such a relationship found herself with no rights to the family home, maintenance or a share in the estate where the relationship ended in death or separation.
But one size does not necessarily fit all. The parts of this Bill dealing with same-sex couples have received a broad welcome, and are also the focus of most of the discussion. There is a strong argument to proceed with them and separate out the parts dealing with cohabitants and their children, and putting them in a separate Bill, with a separate debate.
Carol Coulter is Legal Affairs Editor