Know Your Rights with Femi Daniyan
Do you have a ‘cohabiting agreement’?
A cohabiting agreement is a financial record of what each partner is contributing to the household, and a formula for resolving financial matters if the relationship breaks down. It can help you sort out the day-to-day workings of living together and a record of financial contribution of each partner to the assets of the relationship. This is important because in the event that the relationship breaks down, there will be a record of financial contributions of each party so as to commence a fair settlement of property and assets.
It is similar to a prenuptial agreement for married couples. To prevent unpleasant surprises, draw up an agreement on moving in that sets out your contributions to the relationship and what you have agreed about your house and assets.
The agreement is recognised and protected by the Civil Partnership Act, and is valid if the cohabiting couple have each received independent legal advice, or have received legal advice together and have waived the right to independent legal advice. This waiver must be in writing in order for it to be valid.
In the event of a breakdown in the relationship or death, and neither party has a will, the law will follow legal procedures in passing on the owner party’s assets or estate to people other than the other party. In some cases the non-owner party may even benefit more than the owner intended. It is important to note that the court can vary or set aside a cohabitant agreement in exceptional circumstances where the enforceability would cause serious injustice.
If you do not intend for the non-owner to benefit or get a share of your assets or estate, it is important to express this view from the beginning and opt out in entering into such an agreement, or any agreement.
Do you have a Last Will and Testament?
It is important that everyone has a will, particularly if you want your partner to benefit from any of your assets or even to be able to stay in your house when you die.
If one party dies without a will, then all of their property and assets will go to their blood relations rather than to their partner. In order to protect the interests of the other party it is important to have a will written.
However, if the parties in the relationship are considered ‘qualified cohabitants’ under the Civil Partnership Act, the vulnerable party would have rights in relation to the estate of the deceased. In determining a case, the economic dependency of the claiming party is the key factor, although other criteria must also be taken into account, including the duration of the relationship and the contributions made by each cohabitant, whether financial or otherwise.
The Civil Partnership Act provides for a redress scheme for cohabiting couples. This scheme provides for a broadly similar range of orders as are available to married couples when they are separated or divorced. Its aim is to provide protection for a financially dependent member of the couple if a long-term cohabiting relationship ends either through death or separation. In order to get redress under this scheme, you must be a qualified cohabitant.
Continued next issue
Femi Daniyan is a barrister who practices in the areas of employment, Immigration, professional negligence, probate, succession and family law amongst other areas. He is an advocate on human rights issues affecting minorities. He holds an MA in International Relations from Dublin City University.
