Cohabitation Criteria
17 November 2022
Background to the Law
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”) introduced a redress scheme for co-habitants. If cohabitants have been living together for 2 years (if they had children) or five years (if they did not have children) a dependent cohabitant can seek redress from the other cohabitant at the end of the relationship. The concept of living together is set out in s. 172 (5) as “living with the other adult as a couple”. So to be able to be a cohabitant you must meet this criteria.
As a corollary. If the cohabitants are living together they cannot be living with another couple. So the cohabiting couple (Couple A and B) could be married to other persons (eg spouses C and D respectively) and still qualify, as long as they (ie Couple A and B) are living together. It used to be the case that for married persons who had then started cohabiting that they had to demonstrate that they lived apart from their spouse. This is no longer the criteria because it is a given that if you are living with your cohabitant, you cannot be living with your spouse, and also due to the fact that the criteria for divorce is now living apart for two out of the previous three years.
Case Report
These issues came to the fore in a recent case of Z v Y [2022] IEHC 583 and a judgment of Barrett J. Here the male spouse (Mr. X) remained married to his wife (Mrs. Y) but had an open extra-marital relationship with Ms. Z. Ms. Z brought an application for redress, but failed to demonstrate to the court that she was living with Mr. X. Mr. X would regularly stay with Ms. Z but he also continued to sleep in the family home (although in a room separate from his wife Mrs. Y). Mr. X would get up in the morning from the family home, spend some time in his home office and then go to his co-habiting partner’s house, and bring her to work. The case continued by stating:-
“Then in the early evening, he would collect her from work or have someone else do so. They would dine together. At some point in their interactions, they also likely enjoyed some degree of intimacy.
…….
“On those evenings that he did spend with Ms. Z, Mr. X headed off at 1-2 to sleep in the marital home ….”
This was somewhat unorthodox, as that, the extramarital affair was never really spoken about but still recognised between the parties. The cohabiting couple would attend functions together as a couple. Mrs. Y in her affidavit also stated
I accept that my husband meant a lot to the Applicant. For this reason and in order to deal with my feelings towards [my late husband] ..in a healthy way, I volunteered to give the Applicant half of his ashes and I made a point to include her in notifications of his death. I accept that they had a relationship….I do not accept that she cohabited with the Deceased for a period of six years.
Ultimately the court was not convinced that Mr. X and Ms. Z lived together. There is a distinction between living together as opposed to “spending time together and enjoying occasional intimate relation with each other”.
Comment
The case clearly outlines the need to meet the strict criteria of living together for the purposes of redress under the 2010 Act. While the relationship of Mr. X and Ms. Z were close and Ms. Z was certainly justified in bringing the action, the fact that Mr. X did not stay with Ms. Z for any considerable period in her house or indeed move out of the family home was fatal for her case.
I set out a link to the case here
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