The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, gives wide ranging rights and obligations to same sex and cohabiting couples. Cohabitant is the legal term used for couples who are not married, but live together. The legislation allows unmarried cohabitants to apply to court for maintenance, pension adjustment orders, property adjustment orders or a share in the estate (assets) of a cohabitant who has died. The law in this area is highly complex and if you are affected by this legislation, it is important that you seek professional advice from a family law solicitor as soon as possible in order to establish what your next steps might be.
In order to qualify as a cohabitant, the following criteria apply:
1. Cohabitants can be an opposite or same sex couple who are:
• Living together in an intimate and committed relationship. The couple must be living together for five years. This is reduced to two years if they have children together;
• Not married to each other;
• Not registered in a civil partnership; and
• Not in the prohibited degrees of relationship.
2. If a cohabitant is still married, he or she must be living apart from his/her spouse for at
least four out of the previous five years to come within the legislation. To decide whether a
person was part of a cohabiting couple, the Court will also consider:
• The contributions of each person in looking after the home.
• The earning capacity of each partner, and financial dependence of either partner on
the other.
• The degree to which they presented themselves to others as a couple.
• Whether there are children.
If a Court decides that a person was part of a cohabiting couple, it can make a number of orders with a significant impact on both sides. These include:
• Property adjustment orders.
• Maintenance orders.
• Pension adjustment orders.
• Orders in relation to an estate. When a cohabitant dies, the surviving cohabitant can apply for provision out of the deceased’s estate within six months after probate or administration is granted.
If a person is seeking an order under the legislation, he or she must apply to the Court within two years of the relationship ending. Because of this short time-frame, a person who may qualify as a cohabitant should seek legal advice as soon as possible after a relationship ends.
Please feel free to contact us if you have any queries concerning any of these matters. We will be delighted to hear from you. Please contact us: – by phone on 065-6828990 or email us at info@callinanmurphy.ie or lornahrehorow@berwick.ie or use the ‘Contact Us’ section of our website.
Family Law – Testimonials for Callanan Murphy and Berwick Solicitors
Frequently asked questions for Divorce and Separation
What is the difference between being Divorced and being Legally Separated?
If you obtain a Judicial Separation, you continue to be married and cannot remarry. On the other hand, divorce is final; marriage is at an end, this cannot be reversed and you are free to remarry. However, a Separation does settle a lot of matters such as financial arrangements, ownership of assets, access/custody of children and other such factors so it is often the appropriate step where one does not want to wait the requisite two years or the finality of divorce.
Is it necessary to obtain a Judicial Separation before you apply for a divorce?
The answer is no. Judicial Separation is not a pre-requisite for applying for divorce.
Explain Mediation
This is a process which is often very effective and involves an independent third party liaising between the parties with a view to trying to reach agreement on issues. The mediator will try to resolve matters such as asset division, pension, custody and access to children. Mediation can also avoid the bitterness that can develop between parties when litigation becomes sharp. If a couple can reach agreement in mediation, those terms can then form part of a consent agreement. This can then save couples thousands of euro in legal fees where they can reach agreement.
How about a DIY divorce?
Under the law there is no obligation on either party to have a solicitor when seeking a divorce in Ireland. However, in cases where divorce is contested or there are issues over assets, or arrangements concerning the children then it is advisable to seek legal advice before bringing an application. Even if you have decided you do not want to retain a solicitor, it is best to seek legal advice. We often come across clients who have drafted their own legal papers and consent terms many years later and there have been difficulties in same.
Therefore, we recommend that at the very least that you have each party get a solicitor to review the terms of separation or divorce before you agree to same. Pensions are highly complex and it is important to seek advice on these before pension adjustment orders are made. Remember that in a DIY divorce you are responsible yourself and if it goes wrong the consequences rest with you alone. It is always advisable to seek the advice of a family law solicitor and/or family law barrister first.
Is it possible to get a divorce online?
In Ireland, the current system does not allow applicants to file online for a divorce. You must submit the paperwork through the Circuit Court office.
Is there a special divorce court?
The applications take place at the local Family Circuit Court.
How long does the process of obtaining a divorce or legal separation take?
There is a backlog in the court system and, accordingly, it may take many months before your case will come up for hearing. Furthermore, there can be other reasons for delays; for example, if there is a lot of disagreement between the parties. However, where there is a good chance of settling a case or where the terms have been agreed between the parties, the process can move quickly. We believe in moving things along as swiftly as possible to avoid hefty fees for clients. A fully contested divorce usually takes on average approximately 9 months. Where the parties are not contesting the divorce but merely working out financial arrangements and child arrangements, then 6 months is more common.
What is the position when I am waiting for my divorce?
Normal life takes place. For those who are long estranged, very often things can be amicable or the process can move along in the background. For those who are living together or where there may be maintenance, access or domestic violence issues, either spouse is entitled to apply for interim remedies including orders for periodical payments (maintenance), custody of children, safety or barring orders and an order entitling one spouse (normally the wife with any children) to sole occupancy of the family home. We can advise on all aspects of this.
Can I get Divorced in Ireland if I married abroad?
Yes, anyone who resides in the Republic of Ireland can file for a divorce in Ireland.
Who gets the family home?
Often when discussions about divorce arise, there is an assumption that the family home is the biggest asset and parties to a divorce may place a major focus on the family home. However, in reality, and certainly given property market values of the past few years, a pension may be the most valuable asset. It should be noted that if one spouse has a substantial pension and the other spouse has none, perhaps because he or she worked in the home, the court can order that part of the spouse’s pension be paid to the other spouse or to a dependent child. Alternatively, part of the pension fund could be split and put into another pension fund in the name of the second spouse. This is known as a pension adjustment order. Before making a pension adjustment order, a court will consider all of the finances available to the parties and if it refuses to make a pension adjustment order, it may decide to reflect the value of the pension fund in the division of other marital assets.
Once granted, a pension adjustment order is then served on the trustees of the pension scheme who will then amend the pension in favour of the other spouse. The danger in not dealing properly with pensions during a divorce is that the problem may not become apparent until such time as someone retires. As pensions are very complex, it is strongly advised to consult with a solicitor and a pension specialist before negotiating any family law settlement. In this regard, Callinan Murphy are experienced family law solicitors who can offer you legal advice in this area.
What is involved in the divorce process?
Family law courts are held in private, so that only the parties involved and their legal advisers are in court. If there is substantial agreement between the parties the hearing is usually brief. If the cases goes to full hearing i.e. you cannot agree the terms of the separation or divorce, you will be both asked to give evidence and you may be cross examined. You must disclose all evidence and swear on oath. Ireland operates a no-fault based jurisdiction so, if a couple have fulfilled the legal requirements, either partner is entitled to a divorce, however badly they may have behaved.
Is there a need for a barrister?
It depends on the type of case and the circumstances. If there are complicated issues regarding property, access, pensions or maintenance in a divorce or judicial separation, it is usual that a barrister will be retained in a case. Your solicitor will advise you on the facts of your case. In cases where there are complex issues even the most experienced of family law solicitors will bring an experienced barrister on board. You should seek a divorce solicitor who regularly works in the area of family law so that you obtain the best advice possible. Callinan Murphy will give you a good idea about this from the outset.
What should you do if you want a divorce?
It is advisable to consult with a family law solicitor to obtain advice. A divorce should always be the last resort.
Please feel free to contact us if you have any queries concerning any of these matters. We will be delighted to hear from you. Please contact us: – by phone on 065-6828990 or email us at info@callinanmurphy.ie or lornahrehorow@berwick.ie or use the ‘Contact Us’ section of our website.
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