cohabiting couples
march 2009
This leaflet provides information for couples who live together outside of marriage. In Ireland there is no recognition of common law marriage type situations, that is, a union founded on mutual agreement or cohabitation without a civil or religious ceremony. So in Ireland the concept of a ‘common law spouse’ does not exist. This information is also relevant for people who have obtained a foreign divorce and then remarried only to later find out that the second marriage is not valid, as the original foreign divorce was not recognised in Ireland. When this happens, the protection afforded to married people under the Constitution and the law does not apply.
Children The Status of Children Act 1987 removed the concept of ‘illegitimacy’ from Irish law, so children are not ‘illegitimate’ if their parents are not married. Thus all children have equal rights to property and maintenance under the Constitution and the law. Guardianship
Where parents are unmarried the mother is automatically the guardian by law. Having the father’s name on the register of births does not automatically make him a guardian or give him rights to make decisions concerning the child’s upbringing. If the mother consents, the natural father can be appointed joint guardian. This can be done by both parents executing a simple document in front of a Commissioner of 2
Oaths or Peace Commissioner and it is not necessary to go to court.
Where the mother does not consent, the natural father can apply to court to be appointed a guardian of the child. If there is a dispute between the parents, either one can apply to court for custody of children or access. In all cases, the court puts the welfare of the child first and will only make orders if they are in the child’s best interest (see the Family Law and Children leaflet).
Property The Family Home Protection Act 1976 does not apply to unmarried couples. However, engaged couples who have terminated their agreement to marry may have property rights decided as if they were married under the Family Law Act 1981.
If a property is in one person’s name only and he/she decides to sell, then the other partner may have no say in this decision. The legal owner can require the other cohabitant to leave at any time, and the courts will facilitate this (by granting an injunction or an eviction). However, it is important to point out that where your name as cohabitant is not on the house deeds but you have made direct contributions to the mortgage, purchase price, deposit on or upkeep of the house, then you may have a beneficial interest in the property which you may need to go to court to enforce; you should check this out immediately. If, as cohabitants, you are buying a home together, you should decide if you want to be joint owners or tenants in common:
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Joint Owners own the whole property between them. There are two kinds of joint owners: joint tenants and tenants in common. Where a couple are joint tenants then automatically on the death of one joint owner the property will pass directly to the other. This transfer may be subject to a tax called Capital Acquisitions Tax (CAT). If certain conditions are satisfied, the family home may be exempt from CAT. For all other property the Revenue Commissioners will consider a surviving cohabitant as a class C beneficiary. This means that the part of the house that is now passing over to the surviving cohabitant will be taxed to the value of 20% after anything over the value of â‚Ź27,127 (but this depends on aggregation too). Tenants in Common each own distinct shares in the property, which can be left to someone else in a will. It is possible to draw up a co-ownership agreement if the property is held by tenants in common. This agreement can set out what percentage is held by each of the tenants, what will happen if one of the cohabitants wishes to sell their part to an outside person or what should occur in the event of a death. ď Ź
If you separate and cannot agree about disposing of the property which you own jointly, you must apply to court to have the beneficial interest in the property fairly divided.
Drawing up one of the following types of document can also be very useful for cohabiting couples: Deed of Trust – a document in which a person can record the exact amount of money they have put into a property and the nature of the beneficial ownership.
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Declaration of Beneficial Ownership – if property is to be held in the joint names of both partners, it is advisable to draw up a simple declaration declaring that the property is to be held equally by both in ‘law and equity’. This will avoid confusion when all or most of the price of the property is paid by one partner. Inheritance On the death of one cohabitant the other has no automatic rights to share in the deceased’s estate. It is very important that cohabitants make wills and keep them up to date to protect the other partner on death and to secure the rights of their children (see Wills leaflet). Maintenance The Family Law (Maintenance of Spouses) Act 1976 does not apply to unmarried partners. If an unmarried couple separates, the dependent partner cannot claim maintenance for him or herself. However, under the Status of Children Act 1987 and the Family Law Act 1995, children under 18 years (or between 18 and 23 years if they are participating in full time education) are entitled to maintenance.
If a partner fails to pay maintenance for any children, the dependent partner can go to the District Court or the Circuit Court to establish a claim for the child. It is also possible to apply to court for attachment of earnings in order to ensure the maintenance is paid. An attachment of earnings means that the amount of maintenance due is taken from the wages of the person who owes the maintenance before they are paid out to him/her. If the father denies he is the parent of the child in question, the fact that his name is on the birth certificate may not be sufficient evidence to prove that he is the father. The mother may have to apply to 5
court to obtain an order for medical tests and if these do establish him as the father, the court can then order the payment of periodical maintenance or a lump sum payment. If a mother denies the paternity of a child, a court may order paternity tests. These tests do not give a father rights, but may be used in court to establish rights.
Children of cohabiting couples have the same succession and maintenance rights as children who are born to married couples. (See the Maintenance leaflet for further details.)
Social Welfare When you are an unmarried parent and your child lives with you as part of your household and your income is below a certain level, you can apply for certain social welfare benefits. For example:
Where a couple is cohabiting and is in receipt of social welfare payments, the Department of Social and Family Affairs calculates their benefits as if they were a married couple. They can receive a personal payment plus a qualified adult payment. In the case of cohabitation where only one partner applies for a means-tested payment, the income of both partners is assessed. Currently, if one partner is working, an unmarried couple are not treated in the same way as a married couple for income tax purposes; they are treated less favourably. The working partner cannot claim any ‘married credit’ and only single tax bands apply.
Domestic Violence The Domestic Violence Act 1996 makes it possible to seek court protection from a violent partner. 6
A cohabitant can apply for the following orders: a protection order, a safety order, an interim barring order, or in certain circumstances, a barring order. These orders can be sought for the protection of the applicant (the person asking for the order) and/or on behalf of a dependent person (such as a child). To apply for a safety order, the person and his/her partner must have been living together for a sixmonth period in the 12 months immediately prior to the application. In the case of a barring order, six months of cohabitation out of the nine months immediately prior to the application are required before a person can apply. (See the Domestic Violence leaflet for further information.) Passport Applications for Children of Unmarried Couples As of October 2004 parents may only apply for a separate passport for a child. This means that where a child’s name is already on the current passport of a parent, this remains valid until expiry, but any applications following this for a new passport or applications for renewal of an expired passport will mean that a parent must now apply for a separate passport for any child. With regard to parents who are unmarried: Where the father is a joint guardian: If the father has been appointed a joint guardian by statutory declaration or by the courts, only then is his consent to any passport application in respect of the child required. Where the father is not a joint guardian: In this case, if the mother wants to apply for a separate passport for the child then the father’s consent is not required for passport purposes. This applies even if the father’s name is entered in the Register of Births. 7
Where the father has not been appointed guardian by the courts or by statutory declaration, the mother will be required to swear an affidavit in the presence of a Commissioner of Oaths, stating that she is the sole guardian. These forms can be obtained from the Passport Office. Alternatively, the mother may ask the father to sign the passport application (Form M), even though the father is not a joint guardian, but the father’s name must be on the Register of Births to avail of this procedure.
Passport Office: Setanta Centre, Molesworth Street, Dublin 2 Tel: 01-671 1633 Lo call: 1890 426 888 (For Cork, tel: 021-494 4700 and Lo call: 1890 426900). There is also a 24 hour recorded information line on 01-679 7600. Same Sex Couples Same sex couples are not legally recognised in Ireland. The Government has however made a commitment to introduce legislation and has published a General Scheme of Civil Partnership Bill which can be accessed on the website of the Department of Justice: www. justice.ie/en/JELR/Pages/General_Scheme_of_C ivil_Partnership_Bill Legal Aid: you may be eligible for legal aid if you are a person of moderate means. To qualify for legal aid in civil cases your disposable income and assets must be below a certain limit, there must be merit to the case and there must be no more satisfactory way of resolving the problem. After approval, the Legal Aid Board provides you with the services 8
of a solicitor and, where necessary, a barrister. You can apply for legal aid for more than one matter at a time. The Board’s offices are called Law Centres and are located around the country. For the location of your nearest Law Centre, call 1890 615 200. As of 1 September 2006 the new disposable income limit of a person applying for legal aid has been increased from €13,000 up to €18,000 per year. All those who are granted legal advice and/or legal aid must pay a fee called a contribution to the Board. The minimum contribution is €10 for legal advice and €50 for legal aid. The law centre staff will advise a person of the actual contribution in each individual case. The maximum allowance (this is an expense which the rules allow you to deduct when calculating your disposable income) on childcare facilities if you are working is €6,000 per child per year. The maximum allowance on accommodation costs (e.g. rent) is now €8,000 per year. The value of an applicant’s home and its normal contents are excluded when assessing the value of his/her capital resources (property), as are the value of the tools of an applicant’s trade. For details of other allowances, contact the Legal Aid Board or your local Law Centre. If you are getting a One-Parent Family Payment, you can earn up to €146.50 per week and still qualify for full payment. If you earn between €146.50 and €425.00 gross you can still qualify for a reduced payment. If you have been in receipt of One-Parent Family Payment (full or reduced) for one year and your earnings subsequently exceed
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€425.00 per week, you can continue to receive transitional half-rate payment for 26 weeks from the date of increase in earnings. One-Parent Family Payment To qualify for One-Parent Family Payment, you must have the “main care and charge “of at least one qualified child aged up to 18 years (up to 22 years if in full-time education) and you must be bringing up your child(ren) without the support of a partner. You must have earnings of €425 a week or less and satisfy a means test. If you are separated, divorced or unmarried, you will be required to seek maintenance from the other parent of your child(ren). You will not get One-Parent Family Payment if you are cohabiting with your partner. One-Parent Family Payment Rates for 2009 In 2009, the weekly personal rate is €204.30 plus €26 for each dependent child. What happens if you have an income? The amount of One-Parent Family Payment depends on your weekly means. Income from employment is calculated as follows: The first €146.50 of your weekly earnings is not taken into account. This means that you can earn up to €146.50 per week and still qualify for the full One-Parent Family Payment. Half of your remaining earnings up to €425 per week is assessed as means. This means that if you earn between €146.50 and €425 per week, you may qualify for a reduced payment.
Transitional payments If you have been getting One-Parent Family Payment for a period of at least 52 weeks continuously and your income rises such that you now have earnings above €425 per week, 10
you are entitled to a transitional payment for six months that is the same as one half of your rate of One-Parent Family Payment. Note: New applicants with earnings over â‚Ź425 per week will not qualify for One-Parent Family Payment.
Habitual residence You must be habitually resident in Ireland to receive this payment unless you are from an EU/EEA country or Switzerland. You must also be paying into the Irish social insurance system.
Legal information is also available on the following topics in this series:
separation maintenance cohabiting domestic violence divorce family law and children change of name by deed pole enduring power of attorney probate wills and intestacy the small claims court working hours unfair dismissals maternity leave
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FLAC Mission Statement: FLAC is an independent human rights organisation dedicated to the realisation of equal access to justice for all. It campaigns through advocacy, strategic litigation and authoritative analysis for the eradication of social and economic exclusion. While every effort has been made to ensure the accuracy of this leaflet, it is provided for general legal information only and is not intended as a substitute for legal advice. FLAC does not accept any legal liability for the contents of this leaflet. Persons with specific legal problems should consult a solicitor.
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