- January 18, 2023
- Posted by: Martina
- Category: News
In the recent High court decision of Z v Y, Justice Max Barrett addressed the rights of cohabitants where one party has not been living apart from their spouse for a period of four out of the previous five years as required by the legislation.
This article written by Karen Tobin, Family Law Partner and Kathryn Clancy, Intern, CKT gives an overview of this case and outlines the rights of cohabitants.
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 outlines that unmarried couples living together, whether of the same or opposite sex, can claim similar orders of redress to those of a married couple going through separation or divorce.
However, to claim such a redress, you must be deemed to be a qualified cohabitant.
Under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a “qualified cohabitant” is a person who was in a cohabiting relationship for at least five years, where the couple have a child, they must have been cohabiting together for a period of two years.
Where one of the cohabitants is still married, neither of the cohabitants is eligible to be considered a ‘qualified cohabitant’ unless the married cohabitant has lived apart from their spouse for four out of the five previous years.
This case revolves around the relationships the deceased, ( Mr X), had with his wife (Mrs Y) and his partner (Ms Z).
At the time of his death, Mr X was married to Mrs Y and in an extra-marital relationship with Ms Z.
The key issue in this case was whether Mr X at the time of his death had lived apart from Mrs Y, his wife, as required by the legislation.
Ms Z claimed that she resided together with Mr X for more than 5 years, from 2012 to his death in 2018. However, Mrs Y claimed that while she accepts that Ms Z and Mr X were in an intimate relationship, she was never estranged from her husband during their marriage, and he resided in their home from 1997 to his death.
Mr X and Mrs Y are a married couple with one son. The couple slept in separate bedrooms throughout their marriage as Mr X worked nights and was frequently intoxicated. In 2011, Mr X began an ‘exclusive, intimate relationship’ / extramarital relationship with Ms Z until his death. Whilst the marital relationship between Mr X and Mrs Y appears to have cooled over time, their marriage was not celibate even after Mr X met Ms Z.
Mr X woke at the marital home each morning, and opened his office, which was attached to the martial home. He would then go to Ms Z’s house for breakfast and bring her to work. He would return to the office and in the early evening, Mr X would collect Ms Z from work or have someone else do so. They would then dine together. In the evenings, when not working or out drinking, Mr X frequently spent time with Ms Z but continued to return to the marital home around 1:00AM – 2:00AM each night.
If Mr X and Mrs Y attended functions together such as birthdays or weddings (even whilst Mr X was in a relationship with Ms Z) he allowed them to be represented as a couple. Similarly, if Mr X and Ms Z attended functions, he allowed them to be represented as a couple.
Following Mr X’s death, Ms Z was involved in organising his funeral. She requested prayers, selected music, and provided Mrs Y with a suit for him to be buried in. After Mr. X had been cremated, Mrs Y gave half his ashes to Ms Z.
While sympathies may lie with the appellant, Ms Z, the judge held that Mr X was not at the time of his death living apart from Mrs Y for four out of the previous five years. Therefore, as Ms Z is not a “qualified cohabitant” she was not entitled to redress.
This decision will clarify how cohabitants who do not qualify as a “qualified cohabitant” are treated when applying for relief under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
If you have a query in relation to a personal Cohabitation Matter or any other Family Law Matter, please contact Karen Tobin, Family Law Partner at CKT on 021 4626900.