Know Your Rights with Femi Daniyan
Do you have children?
Almost one fifth of all births in Ireland in the first quarter of 2009 were to cohabiting couples, according to figures from the Central Statistics Office (CSO). Due to this increasing trend, it is important to know that only the mother of a child born to a cohabiting relationship is automatically guardian under the law.
The natural father, with the mothers consent, can be appointed joint guardian by the court. Where that consent is not given by the mother, the natural father may apply to the court to be appointed a guardian. Where there is a dispute between the partners, either party can apply to the court for custody of and/or access to their child. As far as the court is concerned in such cases, the interest of the child is of paramount importance.
If a cohabiting couple have children, then both parties have a responsibility to support their children financially. This applies to all parents, whether married, separated or cohabiting. The parent with custody of the children has to take care of them and look after their daily needs. The parent that does not have custody usually has to pay money to the party with custody. This is to help cover the costs of taking care of the children.
It is also important to have the father’s name on the child’s birth certificate. This can prevent problems over maintenance or inheritance later on. However, this does not make the father a guardian or give him rights to make decisions about the child’s welfare and upbringing.
Are you entitled to
maintenance?
The Family Law (Mainten-ance of Spouses) Act 1976 regulates maintenance law in Ireland. This act does not apply to cohabiting couples. If your relationship breaks down, maintenance may not be claimed by the dependant party.
However, the Civil Partnership Act introduced a redress scheme to protect vulnerable parties. The redress scheme may only be activated at the end of a relationship of at least five years duration, whether by break-up or death, and allows a financially dependent cohabitant to apply to court for certain remedies, including maintenance, pension or property adjustment orders, or provision from the estate of a deceased cohabitant.
The act imposes obligations on cohabiting couples unless they specifically choose to opt out. If the earning party fails to pay maintenance, the dependant party can go to court to establish the child’s claim. It is also possible to apply to the court for an attachment of earnings order to ensure payment. An attachment of earnings order is an order of the court which results in the maintenance amount which is often determined by the court is being deducted at source by the other party’s employer and transferred to the party applying for maintenance.
The following statistics will provide much food for thought. According to Irish research on cohabitation, only one in four cohabiting relationships last seven years or more, the rest resulting in marriage or break-up. According to the same research, couples who cohabit before marriage are more likely to divorce. According to a poll conducted by the Iona Institute in January 2009, most people continue to believe that marriage is better for society and for children than cohabitation. The poll also found that over 90 per cent of the public support a child’s right to a mother and a father, where possible.
If you are cohabiting, it is important to know your rights and protect yourself and your children in the event that your relationship breaks down or your partner dies. If you are affected in any way by this article and would like legal advice, please consult your solicitor.
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.
