1.      THE CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT 2010

 

(a).Summary

 

The Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010 was signed into law by the President on 19 July 2010 and the Act allows the registration of civil partnerships. The Act of 2010 commenced on 1st January 2011 (see

 

Arrangements have been made by an tArd-Chláraitheoir so that the Civil Registration Service is in a position to conduct civil partnership registrations from January 2011. In view of the 3 month notice requirement on the parties, registrations in Registrars’ offices or other approved venues will occur from April 2011 onwards. Registrations in the first 3 months following commencement may only occur in the event of a court order being obtained by the parties to waive the notice period for exceptional reasons (e.g. in the event of serious illness).

 

The concept of a civil partnership is confined to adults of the same sex and a “civil partner” for the purposes of the Act is defined as either of two persons of the same sex who are parties to a civil partnership registration that has not been dissolved or the subject of a decree of nullity (s.3 of the Act of 2010) Part 3 of the Act of 2010 makes provision for the registration of civil partnerships.

Part 4 of the Act of 2010 makes provision for the rights of civil partners in respect of the family home and is identical in substance to the regime in force for married couples of the opposite sex under the Family Home Protection Act 1976, i.e. any purported conveyance by one civil partner of an estate or interest in the family home without the consent of the other civil partner is void and the consent of the other civil partner can be dispensed with by the court.

Part 8 of the Act of 2010 provides for the succession rights of civil partners and provides that civil partners have a legal right share to one half of the estate of the other in the event that one other dies testate. If one civil partner dies intestate leaving no issue the civil partner shall take the entire estate and if one civil partner dies intestate leaving issue the civil partner shall take two thirds of the estate.  Civil partners must wait 2 years to get their partnership dissolved and there is no equivalent to the judicial separation jurisdiction provided for in the case of civil partnerships. Civil partners are not allowed to adopt jointly though one civil partner may adopt singly. Also, civil partners cannot have joint guardianship over any children they raise together.

The Act provides for succession of property, pension entitlements, domestic violence, and maintenance in the event of a breakdown of a civil partnership. The Act does not make any provision for tax entitlements and allowances nor does it grant any social welfare benefits to civil partners: these issues are to be dealt with in two separate Bills. The Act makes provision for recognition of foreign relationships in Ireland as civil partnerships. The Act does not deal with residency of same-sex couples that wish to become civil partners in Ireland.In regard to civil liability, a civil partner is added to the list of dependants, in respect of whom a person may sue for damages for wrongful death. A pension scheme which provides a benefit for a spouse is deemed equally to provide a benefit for a civil partner.

In regard to protection from discrimination, the Employment Equality Acts 1998 to 2007 and the Equal Status Act 2000 prohibit discrimination against a person on the grounds that the person is single, married, separated, divorced or widowed. The same prohibition against discrimination under the Acts will apply in favour of those who are in a registered civil partnership, or in a civil partnership which has been dissolved.

 

The Act also provides for the rights of participants in long-term cohabiting relationships who have not entered into a civil partnership or marriage. There is no distinction made in the Act between the rights and obligations accorded to opposite sex cohabiting couples or same sex cohabiting couples.In addition to establishing a statutory Civil Partnership Registration Scheme for same sex couples, it also establishes a redress scheme for both opposite and same sex `qualifying co-habiting couples’ who are not married to each other or registered in a civil partnership.

 

 

 

(b).Civil partnerships: registration, nullity and dissolution

 

The registration of civil partnerships is governed by Part 3 of the Act of 2010. Three month’s notice of intention to enter into a civil partnership is required (mirroring the requirement in relation to entering into marriage).

 

Section 107 provides for the grant of a decree of nullity in respect of a civil partnership and provides that on application to it in that behalf by either of the civil partners or by another person who, in the opinion of the court, has sufficient standing in the matter, the court may grant a decree of nullity if satisfied that at the time the civil partners registered in a civil partnership:

 

(a).  either or both of the parties lacked the capacity to become the civil partner of the other for any reason, including:  either or both of the parties was under the age of eighteen years; either or both of the parties was already a party to a valid marriage; and either or both of the parties was already registered in a relationship with another person which was entitled to be recognised as a civil partnership in the State in accordance with section 5 and which had not been dissolved;

 

(b).the formalities for the registration of the civil partnership were not observed;

 

(c).  either or both of the parties did not give free and informed consent to the civil partnership registration for any reason, including: the consent was given under duress or undue influence; the party or parties did not intend, at the time of the registration, to accept the other as a civil partner in accordance with the law; and either or both of the parties was unable to give informed consent, as attested by a consultant psychiatrist within the meaning of section 2 (1) of the Mental Health Act 2001.

 

(d).the parties were within the prohibited degrees of relationship within the meaning of the Third Schedule to the Civil Registration Act 2004 (as inserted by section 26);

 

(e).  the parties were not of the same sex.

Section 110 provides that the court may, on application to it in that behalf by either of the civil partners, grant a decree of dissolution in respect of a civil partnership if it is satisfied that—

 

(a)   at the date of the institution of the proceedings, the civil partners have lived apart from one another for a period of, or periods amounting to, at least two years during the previous three years, and

(b)   provision that the court considers proper having regard to the circumstances exists or will be made for the civil partners.

 

The range of orders that a court may make when dissolving a civil partnership is provided for by Part 12 of the Act of 2010 and replicates the provisions in force in relation to applications for judicial separation and divorce.

 

(c)    Provisions for protection of civil partner’s interest in the shared home: Part 4, Act of 2010

 

Where a civil partner, without the prior consent in writing of the other civil partner, purports to convey an interest in the shared home to a person except the other civil partner, then, subject to subsections (2), (3), and (8) to (14) and section 29 , the purported conveyance is void (s.28). This mirrors the equivalent provision in the Family Home Protection Act 1976 in the case of the marital family home. This rule does not apply to a conveyance if it is made by a civil partner in pursuance of an enforceable agreement made before the civil partners’ registration of their civil partnership. Section 29 makes provision for dispensing with the consent of the civil partner and the court shall not dispense with the consent unless the court considers that it is unreasonable for the civil partner to withhold consent, taking into account all the circumstances, including:

 

(a)    the respective needs and resources of the civil partners, and

(b)   in a case where the civil partner whose consent is required is offered alternative accommodation, the suitability of that accommodation having regard to the respective degrees of security of tenure in the shared home and the alternative accommodation.

 

The court shall dispense with the consent of a civil partner whose consent is required if—

(a)   the civil partner cannot be found after reasonable inquiries, and

(b)   the court is of the opinion that it would be reasonable to do so.

 

The court can give consent on behalf of a civil partner if a consultant psychiatrist within the meaning of the Mental Health Act 2001 , certifies that the civil partner is incapable of giving consent, and the court is of the opinion that it would be reasonable to do so.

 

Where it appears to the court, on the application of a civil partner, that the other civil partner is engaging in conduct that might lead to the loss of any interest in the shared home or might render it unsuitable for habitation as a shared home, with the intention of depriving the applicant of his or her residence in the shared home, the court may make any order that it considers proper, directed to the other civil partner or to any other person, for the protection of the shared home in the interest of the applicant. Where it appears to the court, on the application of a civil partner, that the other civil partner has deprived the applicant of his or her residence in the shared home by conduct that resulted in the loss of any interest in it or rendered it unsuitable for habitation as a shared home, the court may order the other civil partner or any other person to pay to the applicant the amount that the court considers proper to compensate the applicant for their loss or make any other order directed to the other civil partner or to any other person that may appear to the court to be just and equitable (s.30).

 

(d)   Succession right of civil partners

 

Part 8 of the Act of 2010 provides for the succession rights of civil partners. On testacy, civil partners will have the same entitlements as spouses to a legal right share under the Succession Act 1965. Where there is a will, the entitlement is to one half of the estate if the deceased has a civil partner and no children, and to one third of the estate if the deceased has a civil partner and children. A child of the deceased may apply, as may a child of a heterosexual couple, under section 117 of the Succession Act 1965 for provision from the estate if the deceased has failed to make proper provision during his or her lifetime. Unlike the existing provision in law for spouses, an order made in favour of a child may reduce the share of the estate available for a civil partner. Where there is an intestacy, the rules of distribution will operate in the same way for civil partners as they do for spouses. If the deceased dies leaving a civil partner and no children, the civil partner inherits the entire estate; if the deceased dies leaving a civil partner and children, the civil partner inherits two thirds of the estate and the remainder is divided between the children. These rules are modified to provide greater rights for a child of an intestate civil partner. Where a civil partner dies intestate, a child of that civil partner may apply to the court for a greater share of the estate. If satisfied that it would be unjust not to make such an order, the court may order that a share be provided for that child not exceeding the share to which the child would be entitled if the parent had died with no spouse and no civil partner. Such an order may not reduce the amount to which any other issue of the deceased is entitled and the net effect would be to reduce the share of the surviving civil partner.

 

(e)    “Qualified co-habitants”: s.172

 

Section 172 of the Act of 2010 defines a qualified co-habitant as one of two adults (whether of the same or opposite sex) who live together as a couple in an intimate relationship and who are:

 

*                  Not related to each other.

*                  Not married to each other.

*                  Not civil partners of each other, and

*                  Who have been living with their partner as a couple for a period:

(a) of two years or more and being parents of one or more dependent children of the relationship, or,

(b) of five years or more in any other case, and

(c) if either of the co-habitants was married to some one else, did not live with that person for one year in the previous five years.

 

(f)     The rights of a qualifiying co-habitant

 

Under the law as it stood prior to the commencement of the Civil Partnership Act 2010, co-habitants had no automatic property rights, no rights of occupation in the property that was their home and no rights of inheritance or financial support. With the coming into force of the Act of 2010, a `qualifying co-habitant’ as defined by s.172 of the Act of 2010 will have access to the redress scheme provided for by the Act of 2010. Section 173 provides that a qualified co-habitant may apply to the court for an order under s.174 (property adjustment orders), s.175 (compensatory maintenance orders) and s.187 (pension adjustment orders) or any of them.

 

(g)   The Redress Scheme

 

Section 173(2) of the Act of 2010 provides that if the qualified cohabitant satisfies the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances, make a number of orders (i.e. a property adjustment order under s.173, a compensatory maintenance order under s.175 and/ or a pension adjustment order under s.187).

 

Section 173(3) provides that in determining whether it is just and equitable to make such an order in all of the circumstances, the court shall have regard to:

 

  • the financial circumstances and the needs and obligations of each qualifying co-habitant now or likely to arise in the future.
  • the duration of the parties relationship,
  • the degree of commitment of the parties to one another,
  • the extent to which the earning capacity of one may have been impaired by the relationship.
  • the rights and entitlements of any dependent children of this or a previous relationship.
  • the rights and entitlements of any spouse or former spouse civil partner or former civil partner.

 

   The powers of the courts under the Redress Scheme

 

The court has power under the redress scheme to make the following types of orders:

 

(i) property adjustment orders, i.e. effect a transfer of an interest or estate in property from one person to the other under s.174.

(ii) compensatory maintenance orders under s.175.

(iii) pension adjustment orders, i.e. transfer of pension rights under s.187.

(iv) an order in favour of a surviving co-habitant for provision from the net estate of his/ her deceased co-habitant under s.194.

 

Property adjustment orders under s.174

 

The court can make the following types of order:

 

·        the transfer by either of the cohabitants to or for the benefit of the other, of specified property in which the cohabitant has an interest either in possession or reversion

 

·        the settlement to the satisfaction of the court of specified property in which the cohabitant has an interest either in possession or reversion, for the benefit of the other cohabitant or of a dependent child

 

·        the variation for the benefit of either of the cohabitants or of a dependent child of an agreement referred to in s.202, i.e. a cohabitant’s agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise (subject to the power of the court to vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice unders.202 (4)) or another settlement (including one made by will or codicil) made on the cohabitants

 

·        the extinguishment or reduction of the interest of either of the cohabitants under a cohabitant’s agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise (subject to the power of the court to vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice under s.202 (4).

 

Before making a property adjustment order under s.174, the court shall have regard to whether in all the circumstances it would be practicable for the financial needs of the qualified cohabitant to be met by a compensatory maintenance order under s.175 or a pension adjustment order under s.187 having regard to all the circumstances, including the likelihood of a future change of circumstances of either of the qualified cohabitants.

 

Compensatory maintenance orders under s.175

 

This type of order can only be made during the lifetime of the cohabitants. On an application to it by one of the qualifying cohabitants, the court may make one or more of the following orders:

 

·        an order that either of the cohabitants make to the other the periodical payments in the amounts, during the period and at the times that may be specified in the order. The court that makes an order of this type shall, in the same proceedings, make an attachment of earnings order under section 176 to secure payments under the order if it is satisfied, after taking into consideration any representations on the matter made to it by the qualified cohabitant ordered to make payments, that the order is desirable to secure payments under an order under subsection (1) (a) and any variations and affirmations of that order, and that the person against whom the attachment of earnings order is made is a person to whom earnings fall to be paid.

·        an order that either of the cohabitants secure to the other, to the satisfaction of the court, the periodical payments of the amounts, during the period and at the times that may be specified in the order; and

·        an order that either of the cohabitants make to the other a lump sum payment or lump sum payments of the amount or amounts and at the time or times that may be specified in the order.

 

The court may order a qualified cohabitant to pay a lump sum to the other qualified cohabitant to meet any liabilities or expenses reasonably incurred by the other qualified cohabitant in maintaining himself or herself before the making of an application by the other qualified cohabitant for an order under the section.

 

The court shall not make a compensatory maintenance order in favour of a qualified cohabitant who has married or registered in a civil partnership (s.175(6)).

 

Pension adjustment orders under s.187

 

The court, on application to it in that behalf by either of the qualified cohabitants, may, during the lifetime of a member qualified cohabitant, make an order providing for the payment, in accordance with this section and sections 188 to 192 , to the other qualified cohabitant of a benefit consisting of the part of the benefit that is payable under the pension scheme concerned and has accrued at the time of the making of the order, or of the part of that part, that the court considers appropriate. An order can be made in respect of all types of pension including occupational pensions and personal pension schemes (PRSAs). In deciding whether or not to make a pension adjustment order, the court shall have regard to whether proper provision, having regard to the circumstances, exists or can be made for the qualified cohabitant who is not a member of the pension scheme by a compensatory maintenance order under s.175.

 

Orders for provision out of the net estate of a deceased co-habitant under s.194

 

A qualified cohabitant may, after the death of his or her cohabitant but not more than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant’s estate, apply for an order under this section for provision out of the net estate. A qualified cohabitant shall not apply for an order under this section where the relationship concerned ended 2 years or more before the death of the deceased, unless the applicant:

 

·        was in receipt of periodical payments from the deceased, whether under an order made under section 175 or pursuant to a cohabitants’ agreement or otherwise

 

·        had, not later than 2 years after that relationship ended, made an application for an order under section 174 , 175 or 187 and either the proceedings were pending at the time of death or any such order made by the court had not been executed.

 

The court may by order make the provision for the applicant that the court considers appropriate having regard to the rights of any other person having an interest in the matter, if the court is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased for any reason other than conduct by the applicant that, in the opinion of the court, it would in all the circumstances be unjust to disregard. In considering whether to make an order making provision for the qualifying cohabitant out of the estate of the deceased co-habitant, the court shall have regard to all the circumstances of the case, including:

 

·        Any property adjustment orders, compensatory maintenance orders or pension adjustment orders in favour of the applicant.

·        A devise or bequest made by the deceased in favour of the applicant.

·        The interests of the beneficiaries of the estate.

·        the financial circumstances and the needs and obligations of each qualifying co-habitant now or likely to arise in the future.

·        the duration of the parties relationship,

·        the degree of commitment of the parties to one another,

·        the extent to which the earning capacity of one may have been impaired by the relationship.

·        the rights and entitlements of any dependent children of this or a previous relationship.

·        the rights and entitlements of any spouse or former spouse civil partner or former civil partner.

 

The court shall not make an order for provision out of the estate of the deceased cohabitant where the relationship ended before the death of the deceased and the court is not satisfied  that the applicant is financially dependent upon the deceased or the applicant has married or registered in a civil partnership.

 

The total value for the applicant of the provision made by an order referred to in subsection (4) (a) on the date on which that order was not exceed any share of the applicant in the estate of the deceased qualified cohabitant to which the applicant would have been entitled if the qualified cohabitants had been spouses or civil partners of each other, i.e. the legal right share of a spouse or civil partner. The applicant shall give notice of an application under this section to the personal representative of the deceased, any spouse or civil partner of the deceased and to any other persons that the court may direct and, in deciding whether to make the order and in determining the provisions of the order, the court shall have regard to any representations made by any of those persons. If the qualified cohabitant does not notify the personal representative as required by subsection (6), the personal representative may distribute the assets of the deceased qualified cohabitant or any part of them amongst the persons entitled to them and is not liable to the qualified cohabitant for that distribution. An order under this section shall not affect the legal right of a surviving spouse.

 

(i)     Contracting out of the redress scheme: agreements between cohabitants under s.202 of the Act of 2010

 

Section 202 of the Act of 2010 provides that cohabitants may enter into cohabitants’ agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise. Such an agreement can provide that neither cohabitant may apply to the court for a property adjustment order, a compensatory maintenance order or a pension adjustment order  or for provision out of the estate of the deceased other, subject to the court’s power under s.202(4) to vary or set aside a cohabitant’s agreement in exceptional circumstances where enforcing the cohabitant’s agreement would cause serious injustice. An agreement that meets the requirements of s.202 will be a cohabitants agreement within the meaning of s.202 even if entered into before cohabitation.

 

Section 202(2) provides that a cohabitants agreement is only valid if:

·        The cohabitants have each received independent legal advice or have received legal advice together and have waived in writing the right to independent legal advice.

·        The agreement is in writing and signed by both cohabitants.

·        The general law of contract is complied with.