Farm Ireland
Independent.ie

Tuesday 26 September 2017

A cohabitants' agreement could be a wise investment

Complications can arise if a couple cohabiting on a farm break up
Complications can arise if a couple cohabiting on a farm break up

Theresa Murphy

I am a young trained farmer, having taken over the reins of the family farm four years ago from my parents. Although they did not transfer the farm to me at the time, I have had the benefit of all of the farm income since then. When I took over the farm I was in a long term relationship, however we decided not to get married but to live together for the foreseeable future. The relationship has ended recently and my parents want to transfer the farm to me now. Can my ex-partner make a claim for maintenance on the family farm?

Answer: The concept of the 'family' under Irish law has changed in recent years and particularly since 2010, both to provide protection for those in same sex relationships and those who cohabit/live together but chose, for one reason or another, not to get married. In the case at hand, the issue lies in whether an ex-partner could claim a maintenance payment from the value of the family farm as a result of the cohabiting relationship.

While the ordinary understanding of cohabiting or living together may apply to more than couples in a committed relationship (for example siblings, who are specifically excluded from this protection under the legislation), the law around financial protection of the cohabitee does not extend to all persons living together.

Who is considered a cohabitee?

Only couples who fall under the definition of 'qualified cohabitants' will be affected by the rights and obligations created in law. In order to be considered qualified cohabitants you must be in an intimate relationship and you must not have married or entered a civil partnership (a registered same sex partnership) with your co-habitant. Under the current law, there is no difference in the way that same sex and opposite sex cohabiting couples are treated.

How long was the cohabitation?

If a couple has been living together and are parents of one or more dependent children of the relationship, they become qualified cohabitants after a period of two years, however, in almost all other cases, they must be living together for a period of five years or more. Whether or not the case at hand falls into the category of 'qualified cohabitees' will depend on the length of time you lived together.

What protection does the law provide?

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Since the law changed in 2010, the requirement for protection is that the qualified cohabitant satisfies the court that he or she is financially dependent on the other and the dependence was caused by the relationship.

The court can make a number of orders, including property adjustment orders, maintenance orders, pension adjustment orders or an order to make provision for a cohabitant from the other cohabitant's estate, in the case of their death.

The most significant question here is whether the financial dependence of the ex-partner is as a result of the relationship.

Factors which the court will look at are whether there was a necessity for one party to leave employment to take care of the home or children of the relationship etc.

It is not enough that one partner decided they did not wish to continue work after entering the relationship - there must be some level of requirement/necessity in the leaving of employment.

Indeed, if one partner could show that as a result of the relationship they reduced their working hours and could not revert to working greater hours, they may potentially be able to claim maintenance.

The effect of the changes to the law to create a protection for cohabitees in 2010 resulted in the creation of a Redress Scheme for those seeking financial protection.

Effect on the family farm

From the point of view of farm property, the court can order the transfer or sale of property, where it sees fit, to meet the financial needs of the cohabitant.

In deciding whether or not such orders should be made, the court will look at the financial circumstances and the needs of each cohabitant now and in the future, the duration of the relationship, the degree of commitment of the parties, the extent to which the earning capacity of one cohabitant was affected by the relationship, the rights of any dependent children and the rights of any spouse or former spouse of either cohabitant.

In circumstances where the farm is retained by the parents of the affected ex-partner, it is extremely unlikely that an order could be made that a portion of the farm should be sold or transferred to the ex-partner, if indeed she was deemed to be entitled to some payment.

While for many persons, inside and outside of the farming community, may well be surprised to learn that their cohabiting partners may well be entitled to a maintenance payment as a result of the relationship if it were to end, there is a protective measure available if this is not something you intend to happen.

Like the pre-nuptial agreement, a cohabiting couple can form an agreement called a cohabitants' agreement to provide for financial matters during the relationship or when the relationship ends. They can agree that in the event of the relationship ending, neither party will seek any of the court orders I have mentioned above.

Of course the court can still refuse to enforce the cohabitants' agreement if this would cause serious injustice to one of the parties, but for the majority of those who do not wish to risk the situation arising, a cohabitants' agreement would be a well advised investment. Most family law solicitors will draw up one of these agreements with ease having consulted with the parties involved.

Since the first qualified cohabitant relationships began under the new legislation, some of those that have come before the court outline there is an increasing need for those who do not wish to find themselves in this situation to take actions before their partner develops rights they did not envisage.

This article is intended as a general guide only and you should seek legal advice in relation to individual circumstances.

Theresa Murphy is a Barrister at Law at the Law Library

Indo Farming