Cunningham Gilbourne Solicitors - Home

Cohabitants and the Law

29 Mar

 

 

A recent High Court case DC V DR has provided clarification in regard to the rights of co habitants who seek financial provision from the estate of their predeceased cohabitant. The right to apply for such financial provision is set out in Section 194(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

 

The case was decided upon by Judge Marie Baker in May 2015.

 

The court set out the following useful guidelines;

  1. The claimant had to prove that he had lived together with his cohabitant in an “intimate and committed relationship” as per section 172(1). The court took into account the criteria set out in Section 171(1) which sets out factors such as A) The duration of the relationship B) The degree of financial independence C) Any financial arrangements between them D) If one of the adults cared and supported the children of the other E) The degree which the cohabitants operated as a couple.
  2. In determining the basis upon which a couple lived together she said that this involved a number of “interconnected elements such as the degree of shared activities such as meals, sharing of household chores, holidays etc.”.  Interestingly Judge Baker held that though the couple were not financially dependent for  the  basics  of life the claimant clearly had a degree of financial dependence on his deceased cohabitant.
  3. The Judge went on to say that “any property acquired by the deceased cohabitant before their relationship commenced and independently of any direct or indirect contribution of the claimant had to be treated differently to property acquired in the course of the relationship”. She made clear that this did not  mean that such inherited property acquired prior to the relationship commencing was automatically excluded from the pot but rather that it was not immediately included and it depended on the facts of the case.
  4. The Judge took into account the amount that the Claimant might have obtained if the couple had been married or in a civil partnership and had died without making a will i.e. the maximum the Claimant could get was 50%.
  5. The Court also considered  the extent to which any claim or any amount which the Claimant would receive would displace the interest of any other beneficiary.

 

In making the decision the Judge took into account that the  Claimant did not have sufficient financial resources for his own needs and that there were no other persons in respect to whom the deceased had any obligations to provide financially i.e. children.

The Claimant owned a small farm which was not a residential holding. The Court felt it was unreasonable to direct that the farm be sold.

The Court directed that the surviving cohabitant be granted  approximately 45% of the deceased cohabitant’s estate. The Court held that “the percentage arose more from the value of the separate assets and that it was possible to make proper provision by a distribution of property”. Judge Baker went on to say that she did not regard that the legislation mandated or permitted a rule or even a rule of thumb that directed a particular percentage split i.e. she felt that she had discretion to decide what was fair in the circumstances of the case.

This case demonstrates the degree to which a Claimant must prove that there was an intimate and committed relationship, that the parties enjoyed activities together, that they presented as a couple and that there was some financial dependency and interdependence between them.

For further information contact Michelle Gilbourne on 069 77583 or email info@mcgsolicitors.ie