Cohabitation, Default Protection and the Civil Partnership Bill 2009

I have written before on the Civil Partnership Bill 2009 focusing mostly on the introduction through the Bill of civil partnership as a legally recognised relationship form for same-sex couples. We have, however, spent some time on the cohabitation proposals both ourselves and in an excellent guest contribution from Andrew Hayward of Durham University. The last few days, however, have seen a surge in analysis of the cohabitation provisions of the Bill with various voices, including Prof John Mee of UCC, expressing concern about the default protections within the Bill as it stands. Indeed, last night’s Prime Time on RTE featured a long report on the implications of the Bill for unmarried and un-civilly-partnered cohabitants. So what is the cause of this concern?

First of all there is the fact that certain protections, entitlements and obligations kick in automatically following a three-year cohabitation period or, if there is a child of the couple, a two-year cohabitation period. If a couple should manage to live together without getting married or civilly-partnered for two or three years, depending on the context, they will be termed ‘qualifying cohabitants’ and these default provisions will apply. The definition of a cohabiting couple (i.e. a couple in relation to whom we can start to count time in order to see whether they are ‘qualifying’) is contained within s.170 of the Bill. Sub-section 1 of that provision reads:

For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

The definition then is quite wide, and s.170(2) goes on to list a number of factors to be taken into account when a court (or, of course, a relevant state body such as the revenue commissioner) is assessing whether or not a particular couple is, in fact, a cohabiting couple for the purposes of the Bill.

Should one find oneself designated a qualifying cohabitant then a range of automatic or default protections apply including the capacity for an economically dependent cohabitant to make an application for support from the other partner on the breakdown of the relationship (s. 171), property adjustment orders (s. 172), the capacity to apply for various financial orders including orders relating to pensions, and the capacity to make an application for provision from the estate of a deceased cohabitant (s.192). Most of these protections are essentially financial and/or economic and, as such, they are somewhat limited in contrast with the real-life complexities of relationships especially following death or the break-up of a relationship, but it is more than people have at this point in time.

Making it even less concerning, perhaps, is the fact that a cohabiting couple can displace the effect of the legislation by means of a cohabitation agreement. Section 199(1) tells us that

Notwithstanding any enactment or rule of law, cohabitants may enter into a cohabitants’ agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise.

Although, s. 199(4) goes on to confirm that

The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice.

So these default protections can in fact be contracted out of. This raises a number of interesting questions. First of all, as Rossa McMahon has pointed out, it seems somewhat strange that cohabitation agreements displacing statutory entitlements would be seen as valid (their status, by the way, is currently very unclear) but pre-nuptial agreements continue to reside in a kind of legal purgatory in this jurisdiction. Of course, this might be explained by a view of marriage as a more ‘serious’ kind of legal arrangement and we might even hear the ‘constitutional protection of marriage’ argument being made for recognising cohabitation agreements and not pre-nuptial agreements but, nevertheless, the paradox is notable. Secondly, there is something of an assumption that couples will inform themselves and in fact decide together that they will or will not enter into a cohabitation agreement. As we know, the reality is that when we are in intimate relationships (whether cohabiting or not, in real terms) our thoughts do not necessarily automatically or indeed ever turn to how we can protect ourselves legally in the event of the relationship breaking down. This is true even in marriage where we see people very frequently dying without having made a will and leaving the division of their estate to the laws of intestacy (Succession Act 1965). Is it, then, realistic to expect that cohabiting couples coming up to their third anniversary of buying their first joint pillowcases will in fact go to their solicitor, take individual independent legal adive, give instructions as to how they want their property and other interests to be held, and then sign the agreement? Many argue that it is not and, in essence, that this means that most people who cohabit will in fact end up having responsibilities (and entitlements) of which they are unaware.

This, it seems, is the nub of the problem. Should people have default protections and obligations within a cohabiting relationship? My instinctive reaction is to say that there is nothing wrong in principle with placing default legal frameworks on relationships of dependence, interdependence and caregiving of this kind. I am somewhat unconvinced by the argument that people will not know that they have to take legal advice and inform themselves, especially since so many people appear to do nothing to protect themselves within unmarried relationships because they assume that something colloquially known as ‘common law marriage’ exists (it does not). Neither do I, as a matter of principle, have objections to the placement of such obligations on people. The reality of most relationships (and of course I recognise that there are exceptions) is that they consist of (among other things) clear patterns of interdependence, dependence, caregiving, and support often with one of the partners deciding consciously or sub-consciously to play a primarily supportive role within the family, perhaps even by giving up paid employment in whole or in part in order to carry out important roles within the home. One can of course argue that if that is the case and if someone wants protections in the law whereby their sacrifices and roles within the family would be recognised then they can and should get married or, after the introduction of the Act, enter into a civil partnership.

However, this raises the question of whether we ought–as a society–determine that one MUST enter into a legally formed relationship in order to avail of some automatic protections in law. Is it appropriate for us to say that only those who have decided to marry/civilly partner get any protections at all? (Of course, this is not the same as asking whether there should be more or different protections and obligations in a marriage and civil partnership to those extant in a cohabitation situation). In my view this is not an appropriate policy approach to take. A policy of recognising family diversity and the real vulnerabilities, obligations and responsibilities both moral and otherwise that exist within those different family forms makes default protections logical and consistent. Those default protections can be contracted out of and for sure I think that people ought to be informed through a publicity campaign that they need to take steps if they want to opt out of those default frameworks. If we really want a consistent policy position where law matches the reality of family diversity then, in my view, we ought not to shy away from default frameworks and should instead focus our energies on awareness raising and information campaigns so that people know what the law is, what their choices are, and how they can try to determine for themselves what is to happen in the event of death or relationship breakdown.

In the first step towards tackling some of the concerns expressed relating to cohabition, the Sunday Business Post this week reported that changes wil be made to the Bill and that the name of the legislation will be changed to the Civil Partnership and Cohabitation Bill in an attempt to drive home the impact of the legislation on cohabiting couples.

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