Solicitors based in Westport, Co. Mayo, Ireland


Civil Partnerships and Co-Habitation

CIVIL RIGHTS & CERTAIN RIGHTS & OBLIGATIONS OF CO-HABITANTS

Legislation: Civil Partnership & Certain Rights and Obligations of Co-Habitants Act 2010 (“the Act”)

 Commencement Date: 19th July 2010

Three Aspects:

1.      Civil Partnership Registration Scheme: a summary

Applies to:

-          Same sex couples only

-          On registration couples become “Civil Partners”

-          Automatically confers statutory rights and obligations on Civil Partners following registration

 

2.      Co-Habitation Scheme: a summary

-          Available to both same sex & opposite sex couples

-          Couples must not be married or in a Civil Partnership

-          Does not confer automatic rights / obligations on the Co-Habiting couple to avail of scheme

-          Creates a redress scheme for relationships ended by death or otherwise

 

3.      Co-Habitation Agreements provided for under Section 202 of the Act allows Co-Habiting couples regulate their own affairs

 

1.      Civil Partnership Registration Scheme

-          On registration, Civil Partners are entitled to automatic succession rights to each other’s estate.

-          Testamentary freedom of partner’s is considerably restricted provided the couple are in a valid civil partnership at the date of death.

-          An application can be made under Section 4 of the Act for a declaration of Civil Partnership Status

-          To enter into a civil partnership the participants must be: -

a)      Over 18

b)     Of the same sex

c)      Unmarried / Unregistered

d)      Unrelated

-          Section 5 of the Act – Civil Partnerships entered into in other jurisdictions may be recognised in this jurisdiction.  Foreign dissolutions are also recognised.  Section is not retrospective

-          Dissolution of a Civil Partnership can occur in the following ways: -

a)      By death

b)      By a decree of nullity – deemed never to have been in a Civil Partnership – No obligations on death

c)      By decree of dissolution

d)      Section 127 of the Act states that on death the surviving civil partner can seek provision to be made out of the estate of the deceased civil partner

 

Part 8 of the Act – Succession

Principal provision extends all rights conferred on surviving spouses under the Succession Act 1965 to include, on registration, the surviving civil partner both on intestacy and where there is a valid will

Right of the surviving Civil Partner to appropriate the dwelling – Section 65 of the 1965 Act is amended by Section 70 of the Act by inserting “Civil Partner” after “Spouse” wherever it appears

Power conferred on Civil Partner as a trustee under Section 58 – Section 58 of the 1965 Act is now amended by Section 71 of the Act so that Section 58(6) will read as follows:  “The powers conferred by subsection 58(6) may also be exercisable by the surviving spouse or civil partner as trustees of any property of an infant appropriated in accordance with Section 56”

Section 70 of the Act inserts a new Section 67(A) into the 1965 Act

-          Where a civil partner dies intestate, without issue, the surviving civil partner is entitled to the whole estate

-          Where the civil partner dies intestate with issue, the surviving civil partner is entitled to two-thirds of the estate, the remaining one-third being divided equally any surviving issue subject to the new Section 67A(3)

-          Section 67A(3) - Courts given the power to make further provision from the deceased’s estate for an applicant child of the deceased who was in a civil partnership at the date of death, such provision to be taken from the surviving civil partners share.  No similar provision in the 1965 Act

-          Time limit for application under Section 67A(3) is 6 months from the date of the initial Grant

All provisions of the 1965 Act dealing with the intestate shares of parents (S.68), shares of brothers and sisters and their children (S.69) and shares of next of kin (S.70), is amended by inserting “or civil partner” after “spouse” wherever it appears

Entitlement to extract a Grant on intestacy – The Act does not make reference to the persons entitled to extract a grant of administration however it is assumed that the necessary amendments will be made to Order 79 of the Rules of the Superior Courts and that the civil partner will have the same entitlement to extract a grant as the surviving spouse

Changes in succession with regard to Testate Estates

Gifts to a witness or to a civil partner of a witness shall be void

A will is revoked by the subsequent entry into a civil partnership, except where a will is made in contemplation of entry into the civil partnership

The provisions of Part 9 of the 1965 Act dealing with the legal right share and provision for children shall extend to civil partners: -

-          Section 81 of the Act inserts a new Section 111A into the 1965 Act

-          Provisions of Section 111A are subject to the provisions of the new Section 117 (3A), as amended by Section 86 of the Act, thus making the surviving civil partners legal right share NOT absolute

Other provisions

Priority of Civil Partners legal share – Section 82 of the Act amends Section 112 of the 1965 Act to provide that the civil partners legal right share shall also have priority over devises, bequests and shares on intestacy

The right of renunciation of legal right – extends to civil partners under a new Section 113A.  Section 114 of the 1965 Act is now to be read as extending to a surviving civil partner as well as a surviving spouse

Right of Election – Section 115 of 1965 Act is amended by Section 85 of the Act.  Civil Partners have the right of election regarding any benefit that may arise under a will or a partial intestacy.  Similar situation to a surviving spouse.  Personal representatives are under a duty to notify the civil partner in writing of their rights under the Act.

Unworthiness to Succeed – Section 120 of the 1965 Act as amended by Section 87 of the Act – Provisions put civil partners in similar situation as regards being disinherited due to desertion and offences against the deceased. 

Dispositions of property for the purpose of disinheriting a civil partner – Section 121 of the 1965 Act is amended by Section 88 - Dispositions of property for the purpose of disinheriting a spouse / civil partner, made within three years of death, may be set aside.

Time Limits – Existing statutory time limits that apply to surviving spouses will equally apply to civil partners.

 

2.      Co-Habitation Redress Scheme

-     Applies to couples of the opposite or same sex who are not married, not in a civil partnership and must be unrelated.

-     No automatic succession rights conferred on the surviving co-habitant.  Right under Section 194 of the Act for a qualified co-habitant to apply for provision to be made for them out of the estate of a qualified co-habitant.

-     Co-Habitant defined as one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to eachother, not married and not in a civil partnership with each other.

-     In deciding whether two aduts are co-habitants the criteria under Section 172(2) of the Act should be consulted.

-     Section 172(5)Qualified Co-Habitant – “an adult who was in a relationship of co-habitation with another adult and who, before the time that the relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period (a) of two years or more where they are the parents of one or more dependent children, and (b) of five years or more in any other case.

-      Notwithstanding subsection (5), an adult who would otherwise be a qualified cohabitant is   not a qualified cohabitant if—

(a)   one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and

(b)  at the time the relationship concerned ends, each adult who is or was married has not lived apart     from his or her spouse for a period or periods of at least 4 years during the previous 5 years.

Application for Provision to be made from Estate of Deceased Co-Habitant

Section 194 of the Act - makes provision for a qualified co-habitant, on the death of the other, to bring an application before the court, seeking that provision be made for the survivor of them from the NET estate of the deceased. 

-     Must do so within 6 months of the first Grant of Administration being issued.

-     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

-     The court may by order make 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

-     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

-     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 made and an order made under this section shall 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

-      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

-     The costs of proceedings under this Part are at the discretion of the court

 

OLIVER P. MORAHAN & SON
James Street, Westport, County Mayo, Ireland

Tel +353 (0) 98 25075
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