Rights of Cohabiting Couples: Common Myths and Misconceptions
At HOMS Assist, we work with couples all over Ireland, helping them manage all the major steps in life, from buying a home to preparing a will. All of their family situations are different, with varying circumstances and uniquely specific needs.
One of the most common questions we’re asked is what rights do I have as a cohabitant? We find that the law surrounding cohabitants’ rights is very often misunderstood, which can leave unmarried cohabitants in a potentially very vulnerable position.
In short, cohabiting couples don’t possess the same legal rights as married couples or those in civil partnerships. To help explain the differences, Claire Tuohy, solicitor and Society of Trust and Estates practitioner debunks common myths and potential pitfalls surrounding this area of family law.
Can I be classed as a common-law husband or wife?
While you may have seen the term pop up in the media, in reality, the common law husband or wife does not exist. Even if you have been together for many years and have children together, unmarried couples or those not in civil partnerships do not have the same rights as married couples.
That said, certain cohabiting couples do have the right to apply for redress under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (see below for more detail). However this is a right of application only, available in limited circumstances, involving court proceedings with relief being at the discretion of the court. In other words, it’s complicated, and will require the assistance of experienced family law solicitors.
What does this mean for inheritance?
If you’re a cohabitant, it’s crucial you understand your limited inheritance rights so that you can ensure your loved ones are looked after in the event of your passing. Without proper estate planning advice, cohabitant partners could be left in very precious circumstances.
If you do not have a will in place the rules of intestacy as set out in the Succession Act 1965 (‘the Succession Act’) will dictate how your estate will be divided on your death.
If you have a cohabitant, they are not provided for in the intestacy rules. The intestacy rules are based on kinship, therefore your estate will not automatically pass to your partner but to your next of kin based on the degree of relationship to them, e.g. children, parents, siblings or more distant relations.
However, if you have a spouse or civil partner, they have what is known as a Legal Right Share under the Succession Act. This entitles them to a fixed share of their spouse’s estate regardless of what provision has been made for them in their spouse or civil partner’s will.
It’s vital to note that there is no such automatic Legal Right Share for cohabitants. In reality, this means that your cohabitant partner could be left with nothing in the event of your passing. Over the years, our team has seen how this can lead to huge distress, financial vulnerability and family disharmony at an emotionally difficult time.
The solution is simple: make a will. Everyone should have a will in place, but it’s vital for unmarried couples or those not in a civil partnership, as they do not have automatic inheritance rights. Making an appointment with a solicitor and writing a will is easy, fast and affordable — it’ll only take an hour or two to ensure that your partner is taken care of in the future.
Do cohabitants pay more tax?
When it comes to property, yes. Married couples enjoy many tax benefits when transferring property between them. For example, there is no Stamp Duty, no Capital Gains Tax (CGT) or no Gift Tax or Inheritance Tax (known as Capital Acquisitions Tax or CAT) between married couples.
On the other hand, unmarried couples or those not in civil partnerships must pay these taxes, including Stamp Duty (from 1%) and CGT (at 33%) on property transfers. If one partner gives a gift or inheritance to another, that will also be subject to CAT at a rate of 33% outside of their tax free threshold of €16,250.
Even if you provide for your partner in your will they will be treated as a stranger for CAT purposes. So, for example, if you leave your cohabiting partner the family home worth €200,000, they will have to pay CAT of approximately €60,637. This can leave surviving partners in a very difficult position in which they may be forced to sell their home to pay their tax bill.
A married couple is not subject to this tax, so the surviving spouse can inherit the house outright with no CAT obligations.
Can I challenge this?
Of course, this situation can cause great upset and hardship to some families. As a result, cohabitants can now apply to be granted rights under the Civil Partnership and Certain Rights and Obligations Cohabitants Act 2010.
However, it’s very important to appreciate that the rights under the act are not automatic and not available to all cohabitants. You would have to make an application to court, which may be costly and stressful, particularly as it can involve the surviving partner suing their partner’s surviving family.
To qualify as a cohabiting couple under the legislation, you must show that you lived in an intimate and committed relationship with your former partner. In order to avail of any relief you must prove that you lived together for five years or more, or for two years if you have dependent children together.
The court will review all of the evidence and if it decides you were part of a couple it can make a number of orders, including decisions on how the estate of a deceased partner should be distributed.
What should I do to protect my family?
If you are a cohabitant it’s crucial that you have a clear understanding of your rights and the limitations to those rights. Once you’re clear about how this will affect your partner and family, you should put in place arrangements to protect them in the event of your passing.
Making a will is the most important (and easiest) step to take. The team at HOMS Assist have written thousands of wills over a combined 50 years, and in that time they’ve gained invaluable experience in family law and probate law. They can help you plan effectively for the future, including advice on protecting cohabitants and minimising the amount of tax your beneficiaries will have to pay.
If you’d like to schedule a chat to get started, reach out to Claire Tuohy, solicitor and Society of Trust and Estates Practitioner on 061 449 427 or by email on [email protected]. She and her team are ready to help you take care of the future so you can fully enjoy the present.