Rights of Cohabitant Living With a Separated Married Person

The breakdown of a relationship can be extremely difficult and often leads to one or both parties seeking legal recourse out of necessity to address financial & property related issues and access arrangements when they are parents of young children. The law recognises second or subsequent relationships after marriage and in certain cases, affords rights of redress to parties who were living together after that relationship ends notwithstanding the fact that one or both of them may be married to a third party.

Child Maintenance

It has been the case in Ireland for many years [i]  that a court has the power to order maintenance payments against one parent in favour of another in respect of a non-marital child even though one parent might be married to a third party.  It is possible for child maintenance proceedings to issue against a married cohabitant whilst judicial separation or divorce proceedings are pending against him/ her. Maintenance payments for non-marital children should be paid equally in priority to maintenance for marital children[ii].

A claim for maintenance in respect of a dependent non-marital child is claimed under the Family Law (Maintenance of Spouses and Children) Act 1976 (as amended).

Maintenance, Lump Sum Payments, Pension Adjustment Orders in favour of Qualified Cohabitant

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”) confers additional rights of redress on a ‘qualified cohabitant’ who is economically or ‘financially dependent’ on the other ‘by reason of the break-down of the relationship’ [iii] and it is ‘just and equitable’ for a Court to grant the specific relief sought under that Act in the circumstances.  It is important to note that rights under the 2010 Act only arise on the break down of the relationship.

The 2010 Act renders it possible for a qualified cohabitant to secure orders – including property adjustment, Compensatory Maintenance Payments[iv]  (or maintenance orders as referred to above) and pension adjustment orders[v].  – in his/her own favour personally, and not just in respect of maintaining a child of the relationship in question which is a novel step.

In circumstances where one or both parties are married, neither party will be deemed a qualified cohabitant until the cohabitant who is married, has been living separately and apart from his/her spouse for periods amounting to 4 years out of the 5 years prior [vi] to the date the cohabiting relationship ends.  In essence, neither party will be deemed a qualified cohabitant until the married party is entitled to seek a divorce.

A qualified cohabitant under the 2010 Act is someone who has been living with another in an intimate and committed relationship for 5 years or 2 years where they are parents of one or more dependent children.

It should be mentioned that the above reliefs under the 2010 Act apply subject to any Cohabitants’ Agreement contracting out of the said Act’s provisions.  A Cohabitants’ Agreement which has been entered into by the parties under section 202 of the 2010 Act will be enforced by a court save in exceptional circumstances where to do so would result in serious injustice.

Succession Rights

A qualified cohabitant also has a right to apply for provision from the net estate of a deceased qualified cohabitant under section 194 of the 2010 Act. In this respect, where the ending of the relationship is as the result of the death of the qualified cohabitant, the surviving cohabiting partner does not need to prove financial or economic dependence on the deceased in order to substantiate a claim to his/her estate under this section. However, the right of the qualified cohabitant under this section cannot exceed that which s/he would have been entitled to if the parties were married. In general terms, this could mean that the cohabitant would not be entitled to anything more than his/her ‘legal right share’ as defined in section 111 of the Succession Act 1965 (1/3 of the net estate if the Deceased had children living at the date of his/her death or 1/2 if s/he did not).

In addition, the right to be provided for out of a deceased cohabitant’s estate is strictly subject to a surviving spouse’s succession rights under the Succession Act 1965 which in small estates, could render any such right in favour of a qualified cohabitant valueless in practical terms. A surviving spouse could be first entitled to a legal right share (if the parties are not yet divorced) out of the net estate or could have a general right for proper provision to be made for him/ her under section 18 of the Family Law (Divorce) Act 1996 (the “1996 Divorce Act”). In addition, it is noteworthy that a court is required to consider the rights of other beneficiaries and the rights of a dependent child/ children prior to making an order under section 194.

An application for provision out of the deceased’s estate must be made within six months of the date of a grant of representation in the estate. There is a positive duty on the applicant/ claiming cohabitant to notify the personal representative of the proceedings and failure to do so could mean that the deceased’s assets would be distributed without any further recourse.

If the relationship ended prior to the qualified cohabitant’s death other factors apply in particular the surviving cohabitant will be required to prove financial dependence.

It is possible for both cohabitants to renounce/ waive their entitlements under the 2010 Act by entering into a Cohabitants’ Agreement. Such an agreement would be enforced by the courts except in exceptional circumstances where doing so would cause a serious injustice[vii].

Property Rights – Property Law

Separately it is worth noting that in addition to rights under the 2010 Act, parties living together may be in a position to obtain relief under the Land and Conveyancing Law Reform Act 2009 (the “2009 Conveyancing Act”)  for an order of partition (separation of each party’s interests in the property) and sale of property co-owned by them, either legally or beneficially under section 31 of that Act.

The application of property law in relation to co-owned properties can be very complicated where the parties are not in agreement in relation to their respective interests and the values of the same. For example, one party whilst not named on the title deeds may have contributed towards a mortgage on the property in which case s/he will have a beneficial interest in that property as a result. Disagreements also frequently arise in determining the exact value of alleged indirect financial contributions made by one party to the repayment of the mortgage.

Reliefs under the 2009 Conveyancing Act can be available in tandem with rights under the 2010 Act – ie in circumstances where the parties were living together and are deemed ‘qualified cohabitants’ under the 2010 Act (as above). Due to the wide reliefs available under the 2010 Act and the fact that proceedings, if issued are heard ‘in camera’ or in private in a family law court under that act, it is generally advisable for proceedings to issue under the 2010 Act where possible. Proceedings under the 2009 Conveyancing Act would be considered a ‘civil’ matter heard in public.

Where the application of the rules in the 2009 Conveyancing Act would cause an injustice when applied to what is in essence a family law dispute, in certain limited situations outside the scope of this article, equitable doctrines could apply to ease a strict application of those rules – such as placing a ‘stay’ or a hold on an order for sale of a property until the dependent child reaches 18 or 23 and in receipt of full-time education.

Summary

In summary, the law affords rights to cohabiting couples in certain situations, even though one or both of them may be married. Cohabiting couples do not have the same rights as married couples and their rights on succession are second in priority to the right of a surviving spouse and regard must be had to other beneficiaries, if a court is required to assess a claim under the 2010 Act. It is therefore important for a cohabiting couple comprising one or both individuals who are married to third parties to ensure each of them is aware of their rights and have made appropriate arrangements by a Will or otherwise in the event one pre-deceased the other.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Rights of Cohabitant Living With a Separated Married Person”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

[i] Since the introduction of the Status of Children Act 1987[ii] S. 3 of the Status of Children Act 1987 which in effect states that the marital status of a child’s parents is to have no effect on the child’s relationship with them is support for this statement.

[iii] See Section 173 of the 2010 Act

[iv] Section 175 of the 2010 Act

[v] Section 187 of the 2010 Act

[vi] This time period will change when a commencement order has been made in respect of section 4 of the Family Law (Divorce) Act 2019

[vii] Section 202 (4) of the 2010 Act

The Children’s First Act 2015

The Children’s First Act 2015 came into effect on 11th December 2017. This means the Children First National Guidelines for the protection and welfare of children are now law.

All service providers of a “relevant service” including hospitals, and schools are required to ensure as far as practicable that each child is safe from harm when using the services. Each service provider must prepare a “child safeguarding statement” which includes a written assessment of risks and procedures to manage any risks to children in accessing their services. Guidelines are available on www.tusla.ie

The Child Safeguarding statements must be available for inspection and all staff members are required to be trained to be familiar with these. The Child Safeguarding statement must be updated at least every 2 years. Failure to produce a Child Safeguarding statement to the Child and Family Agency may result in a non-compliance notice being served and inclusion in a public register of non-compliant organisations.

Mandated persons which include nurses, doctors, dentists, and teachers are required to make a mandatory report to Tusla if they have knowledge of or suspect that a child has been harmed, is being harmed or is at risk of harm.

All staff should receive training in relation to this important development.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “The Children’s First Act 2015”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Recent Supreme Court Ruling re Repossession Proceedings relating to Residential Property

Lender cannot repossess where breach of the moratorium required by the code of conduct on mortgage arrears, supreme court says

The Supreme Court has said failure to comply with the moratorium provisions of the Central Banks Code of Conduct on Mortgage Arrears by a lender can prevent a home being repossessed in a recent decision of Irish Life and Permanent Plc, Gemma and Kevin Dunne and Dylan Dunphy [2015] IESC 46.

The Supreme Court heard appeals of two cases against Irish life and Permanent Plc which were referred by the High Court Judge. The Dunnes had defaulted on repayments due to Irish Life and Permanent Plc and it appeared that Irish Life and Permanent Plc were entitled to recover possession of the property. As the Dunne were not legally represented and did not enter an appearance to the proceedings, there would be no enquiry that the lender had complied with the Code of Conduct on Mortgage Arrears. Judge Hogan referred these 2 cases on appeal due to various different views taken by High Court Judges on the question of legal status and consequence of compliance by lenders with the Code of Conduct on Mortgage Arrears in relation to repossession.

The Supreme Court was asked to consider:-

  1. As there is no sanction for failure by a lender to comply with the Code of Conduct on Mortgage Arrears does non-compliance with the Code affect a lenders entitlement to obtain repossession of a property
  2. If a lender has not complied with the Code of Conduct on Mortgage Arrears, depending on the type of breach can the Court refuse to make an Order for repossession and can any breach be rectified by a period adjourning or postponing the proceedings.

The Supreme Court said that regulated financial institutions must obey the Code of Conduct on Mortgage Arrears which forms part of the law pursuant to Section 117 (1) of the Central Bank Act 1989. When a lender is applying for a Court order for repossession of a private residence of a homeowner the Court may have to consider a situation where a lender is in breach of the Code. The Court said if an application for repossession brought by a lender is in clear breach of the moratorium that a Court could not aid the lender in these actions which are clearly in unlawful and in breach of the Code of Conduct on Mortgage Arrears and could not make an order for repossession in those circumstances. However the Court clarified that it will not have a role in deciding whether particular proposals should be accepted by the lender or in formulating a lenders policy in relation to mortgage arrears and in applying these or assessing as to whether these are reasonable as this is not its role. All proceedings for repossession should now contain a statement that the proceedings were commenced outside of the moratorium period. If the moratorium does not apply then this should be explained and a Court can consider what evidence it needs to be satisfied that there was no breach of the moratorium by a lender.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Recent Supreme Court Ruling re Repossession Proceedings relating to Residential Property”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Children and Family Relationships Act 2015 Update

 

This is a summary of recent changes to guardianship, custody and access under the Children and Family Relationships Act 2015 which will shortly be in place.

This Act has overhauled family law to update provisions in relation to guardianship, custody, and access to children, and in relation to adoption, IVF and other types of assisted human reproduction. The Act does not deal with surrogacy.

The Act will be commenced in stages in the coming months. A number of changes which will be put in place are set out below:

  • A father is a guardian of a child where he is a parent who is married or in a civil partnership. Where an unmarried father is a parent and has been living with the mother for a minimum of 12 months (after the Act comes into operation), including 3 consecutive months after the child’s birth, he will automatically be a guardian of the child. An unmarried father can be appointed a guardian by a Court or where the mother agrees to the appointment of the father as a guardian and a statutory declaration is signed to this effect, or where he has rights and responsibilities equivalent to guardianship under the law of another State. This is a significant development as there was previously no automatic right of guardianship for unmarried fathers in Ireland.
  • A father of a child includes a male adopter but does not include an unmarried father who is not a guardian of a child under the Guardianship of Infants Act 1964.
  • The best interests of the child are paramount in relation to guardianship, access or custody of a child. A Court will now take into account the views of the child, and has powers to appoint an expert to inform the Court of the child’s views, on behalf of the child.
  • For the first time a Court can appoint a guardian who is not a parent who has been living with a parent of the child for more than 3 years and shared responsibility of the child day to day for more than two years. The Court can also appoint a person a guardian who is providing the child’s day to day care for more than 12 months continuously, where the child has no parent or guardian who is willing or able to be a guardian. This type of guardian may have rights which are limited by Court order.
  • A temporary guardian can be appointed for a child if a guardian is incapable of acting due to illness or injury. Guardianship continues until the guardian dies, child reaches 18 or marries. Guardians can be removed by a Court.
  • Relatives seeking access to a child no longer have to seek leave to obtain access from a Court.
  • Relatives and persons in loco parentis can apply for custody of a child.
  • A parent or guardian who has been unreasonably denied access or custody by another parent may apply to court for an Enforcement Order which is a “fast-track” procedure to make sure the parties comply with the Court Orders in place and can provide for the expenses of the party who has been unreasonably denied access or custody.
Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Children and Family Relationships Act 2015”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Record Award for Mother who Suffered Nervous Shock

The High Court made a record award to a mother whose only son was killed in a road traffic accident. In Purcell –v- Long [2015] IEHC385 €225,000 was awarded as general damages for pain and suffering to date and into the future which is a substantial increase in compensation previously awarded by the Courts for nervous shock/psychiatric injury.

Summary

The mother was informed of the death of her son and said she never recovered from the shock. She suffered an acute stress reaction, became profoundly depressed and suicidal as a result and never recovered from this. The mother had previously suffered moderate depression and had periods of time on medication. The Defendant’s doctor said the mother had a recurring depressive disorder and she was a vulnerable person at the time of the accident. He was also of the view that the mother would have remained prone to depressive episodes regardless of the loss of her son.

The decision

Mr. Justice Barr found that the mother suffered severe nervous shock as a result of the death of her son, and severe depression as a result. Her previous psychiatric history had rendered her vulnerable to further injury when she received the distressing news of the death of her only son. He accepted that the mother will require heavy medication, will not be fit for employment and will suffer from depression into the future. She was awarded damages of €125,000 to date, and €100,000 damages for the future.

As the mother was a vulnerable person at the time of the injury, the Defendant is responsible for the extent of the injury inflicted on her under the “eggshell skull rule” in law.

This is a summary of recent legal development and comprehensive legal advice should be obtained if an injury has occurred. If you have a personal injury or medical negligence claim and have any question, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

Children and Family Relationships Act 2015

 

This Act has overhauled family law to update provisions in relation to guardianship, custody, and access to children, and in relation to adoption, IVF and other types of assisted human reproduction. The Act does not deal with surrogacy.

The Act will be commenced in stages in the coming months. A number of changes which will be put in place are set out below:

  • A father is a guardian of a child where he is a parent who is married or in a civil partnership. Where an unmarried father is a parent and has been living with the mother for a minimum of 12 months (after the Act comes into operation), including 3 consecutive months after the child’s birth, he will automatically be a guardian of the child. An unmarried father can be appointed a guardian by a Court or where the mother agrees to the appointment of the father as a guardian and a statutory declaration is signed to this effect, or where he has rights and responsibilities equivalent to guardianship under the law of another State. This is a significant development as there was previously no automatic right of guardianship for unmarried fathers in Ireland.
  • A father of a child includes a male adopter but does not include an unmarried father who is not a guardian of a child under the Guardianship of Infants Act 1964.
  • The best interests of the child are paramount in relation to guardianship, access or custody of a child. A Court will now take into account the views of the child, and has powers to appoint an expert to inform the Court of the child’s views, on behalf of the child.
  • For the first time a Court can appoint a guardian who is not a parent who has been living with a parent of the child for more than 3 years and shared responsibility of the child day to day for more than two years. The Court can also appoint a person a guardian who is providing the child’s day to daycare for more than 12 months continuously, where the child has no parent or guardian who is willing or able to be a guardian. This type of guardian may have rights which are limited by Court order.
  • A temporary guardian can be appointed for a child if a guardian is incapable of acting due to illness or injury. Guardianship continues until the guardian dies, child reaches 18 or marries. Guardians can be removed by a Court.
  • Relatives seeking access to a child no longer have to seek leave to obtain access from a Court.
  • Relatives and persons in loco parentis can apply for custody of a child.
  • A parent or guardian who has been unreasonably denied access or custody by another parent may apply to court for an Enforcement Order which is a “fast-track” procedure to make sure the parties comply with the Court Orders in place and can provide for the expenses of the party who has been unreasonably denied access or custody.

This is a summary of recent changes to guardianship, custody and access under the Children and Family Relationships Act 2015 which will shortly be in place.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Children and Family Relationships Act 2015”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

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