Family Law FAQs

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Married parents of a child are joint guardians and have equal rights in relation to the child. The rights of parents to guardianship are set down in Section 6 of the Guardianship of Infants Act, 1964.

For children born outside of marriage, only the mother has an automatic right to guardianship. Even though a father’s name may be registered on the child’s birth certificate, this does not give a father any guardianship rights in respect of his child. You can apply for guardianship up until a child reaches 18 years of age. Guardianship ends when a child turns 18 unless a guardian dies or is removed before that.

On 18 January 2016 certain provisions of the Children and Family Relationships Act 2015 came into effect that made a number of changes to the Guardianship of Infants Act 1964.

If a child is born outside of marriage, the mother is the automatic guardian. An unmarried father will automatically be a guardian of his child if he has lived with the child’s mother for 12 consecutive months after 18 January 2016, including at least 3 months with the mother and child following the child’s birth. If there is disagreement as to whether they have been cohabiting for the required length of time, an application for the necessary declaration can be made to the court.

Apply for Declaration of Guardianship

Arrangements for Children

Learn about the options available if you are seeking child guardianship, custody or access.

Arrangements for Children

Who else can apply for guardianship?

A step-parent, a civil partner or a person who has cohabited with a parent for not less than 3 years may apply to the court to become a guardian where they have co-parented the child for more than 2 years.

A person who has provided for the child’s day-to-day care for a continuous period of more than a year may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship.

Nomination of a temporary guardian

Also, a parent can nominate a temporary guardian using a form, who then can be appointed by the court, in a situation where a parent is suffering from a serious illness or injury which prevents the Parent from exercising their guardianship responsibilities in respect of their child. The scope of temporary guardian’s rights will be set out in the District Court’s Order, which will usually be identical to the wishes the parent sets out in the form.

Nominate a Temporary Guardian

Disputes between guardians

If guardians cannot reach agreement on important issues concerning the child, they can consider mediation and/or collaborative law and/or apply to the court for direction.  The court in making a decision takes into account the views of all guardians and the decision of the court will be made with the best interests of the child being the first and most important consideration.  The court must have regard to the views of the child taking into account the age and understanding of the child.

Further information:

Arrangements for Children

Apply for Guardianship, Custody or Access

Guardianship Information from Treoir

Disputes between parents/guardians over passports

Please read the below information:

Learn about the situations where you will need to get a judge’s decision about a child passport issue, and how to apply to the court.

Child Passport Issues

How to apply for guardianship custody or access

A step by step guide on how to make an application for a guardianship, custody or access order.

Apply for Guardianship, Custody or Access

Custody of a child can be automatic, by an agreement between both parties, or by a judge’s decision. A mother who is not married to the father of their child has automatic sole custody of the child and married spouses who live together have joint custody.

Both parents can agree on joint custody

Parents can reach agreement about custody arrangements for their children. This can be done together, or with help from a mediator or solicitor. You might want to ask a judge to make this agreement a “Rule of Court”. This means that it is treated the same as a court order and can be legally enforced like one.

Court Ordered Custody

If parties do not have automatic rights or cannot reach agreement on arrangements regarding custody, one party can apply to the court for custody. Please see below link for further information. Most court applications relating to custody are made to the District Court but they can also be made to the Circuit Court, often as part of an application for judicial separation or divorce.

Custody Rights

Applications for access

The non-custodial/non primary carer parent (this is the parent of the child or children who does not live with the children all of the time) can apply to the court for an access order. This order of the court will set out how access will happen. Applications can be made to the local District Court and most applications are made to that court. Access arrangements can also form part of an application for judicial separation or divorce in the Circuit Court.

If an order is in place and the terms of the order are not complied with, for example, if access is not granted as set out in the order, the parent can go back to the court for an Enforcement Order. If the terms of the order prove not to be workable, either of the parties can return to the court to apply to have the order changed or varied in a Variation Order.

If an unmarried father is applying to the court for both guardianship and access, separate applications must be made, but both applications will be heard by the court at the same time. In certain circumstances, it will be decided that the access with the child should be supervised and the order will provide for supervised access.

Learn more about Access

Who else can apply for access?

Same-sex couples

If your same-sex relationship breaks down, you may wish to continue to have contact with your former partner’s child. Section 55 of the Children and Family Relationships Act 2015 has amended the Guardianship of Infants Act 1964 so that a person with whom a child resides or has previously resided can apply to the District Court for access to the child.

Grandparents/Relatives/other parties

Section 9 of the Children Act 1997 amended the Guardianship of Infants Act 1964 so that a relative, such as a grandparent, can apply to the District Court for access. Brothers, sisters, aunts, uncles, and grandparents can apply to the court for access. This includes those related to the child by adoption. This also applies to access to a child who may be in State care.

Any other adult who the child lives with, or lived with previously, can apply to the court for access. In deciding whether to grant access, the judge will consider: the applicants connection with the child, any risk of disruption to the child’s life or if they might be harmed by the access, the wishes of the child’s guardians, the views of the child, whether it is necessary to make an order to facilitate the access of the person to the child

Please see further information on how to make such applications on the Courts Service Website.

Book an appointment with your local District Family Law Office

What is maintenance?

Maintenance is financial support. It means money paid by a person for the support of another person, such as a dependent child, spouse, civil partner or a qualified cohabitant. Maintenance for the support of dependent children is often called child maintenance. It is an agreement or a court order covering how a child’s living costs will be paid. Maintenance is often an issue after a relationship break up. It can be part of a marriage separation or divorce, or the ending of a civil partnership. Other persons affected by the breakdown of a relationship, such as a qualified cohabitant, may be entitled by law to maintenance.

How to apply for maintenance

Most applications for maintenance are made in the District Court. In the District Court a judge can only order a maximum of €500 per week be paid to a spouse and up to a maximum of €150 per week per child. The highest lump sum that can be paid is €15,000.

To make an application to the District Court there are a number of steps to take. The information provided in the below links relate to applications for new maintenance orders as well as varying or discharging an existing order, or applying for an Attachment of Earnings Order. You can apply to the District Court office in the area where you or the respondent lives or works. If either of you live or work in Dublin, your local office may be the Dublin District Court Family Law Office, also known as Dolphin House. An exception to this is if you live or work in an area covered by the Swords and Balbriggan District Court Office. In this case your local office may be the Swords and Balbriggan District Court Office.

The application process for those applying in Dolphin House is different to the process for the rest of the country, see their online booking process here.

See also further information on:

The Courts Service Maintenance Information

Appealing a maintenance order

What to do when maintenance is not being paid

Legal Aid Self Help maintenance guide

Dublin Family Law Court, Dolphin House.

What is domestic violence?

Domestic violence includes – but is not limited to – any act or threat of physical, sexual, or emotional violence, or coercive control. This is also often referred to as domestic abuse. These acts or threats can be against you or a family member. Domestic violence also includes acts and threats of a financial or digital nature. This is where someone uses money or online harassment to control another person.

A new offence of coercive control of a spouse, civil partner or intimate partner also came into force under the Domestic Violence Act 2018. Coercive control is a pattern of intimidation, humiliation and controlling behaviour that causes fear of violence or serious distress that has a substantial impact on the victim’s day-to-day activities.

Violent acts or threats can be made by someone who is related to you by blood or adoption, such as parents, adult sons and daughters, and grandparents. They can also be made by people the court considers an intimate partner. These include current and former spouses, civil partners, cohabiting partners, your child’s other parent, and unmarried intimate partners. Disputes between neighbours, tenants, or roommates are not covered by domestic violence law.

What types of orders can I apply for?

What is a protection order?

Between the time of making an application for a safety order (or barring order) and the court’s determination (decision), there may be reasonable grounds for believing that the safety and welfare of you or of a dependent person is at risk. If so, the court can grant a protection order to prohibit (ban) the person accused of the abusive behaviour from:

• Using or threatening to use violence
• If the person is not living with you, watching or being near your home
• Following or communicating with you or a dependent person

A protection order is temporary and only effective until the court hearing for the application for a safety order (or barring order). It is sometimes called a ‘temporary safety order’ because it gives the same protection as a safety order but for a shorter time period.

Who can get a protection order?

Protection Orders are available to anyone who has  commenced applications for safety, or barring, orders and if the court decides that there are reasonable grounds to believe that the safety or welfare of the applicant is under threat or any dependent person requires a protection order to be made pending the full hearing of the barring or safety order, one will be made.

What is a safety order?

A safety order is an instruction from the court which stops the person accused of abusive behaviour (the respondent) from committing further violence or threats of violence. The respondent does not have to leave the home. If the person is not living with you, the safety order prohibits (bans) them from watching or being near your home and following or communicating (including electronically) with you or a dependent person such as a child. A safety order can last up to 5 years.

People in an intimate relationship are also able for apply for a safety order. Previously, couples had to cohabit (live together) to be able to get a safety order, but this is no longer the case. The following people can apply for a safety order:

• Spouses and civil partners
• Parents with a child in common
• Partners in an intimate relationship including cohabitants (a couple living together) and dating partners (a couple not living together)
• Parents of an abusive child if that child is over 18
• People residing with the respondent in a non-contractual relationship, such as two relatives living together
• Former partners are also able to apply, for example, a former spouse or cohabitant.

Who can get a safety order?

From 1 January 2019, people in an intimate relationship are eligible for safety orders. Previously couples had to cohabit to be able to get a safety order, but the 2018 Act has removed this requirement. The following people can apply for a safety order:

• Spouses and civil partners
• Parents with a child in common
• Partners in an intimate relationship (including cohabitants and dating partners)
• Parents of an abusive child if that child is over 18
• People residing with the respondent in a non-contractual relationship, such as two relatives living together
• Tusla, Child and Family Agency on behalf of an “aggrieved person”.

What is a barring order?

A barring order requires the person accused of abusive behaviour to leave the home and prohibits (bans) the person from entering the home. The order also prohibits the person from:

• Further violence or threats of violence
• Watching or being near your home, or
• Following or communicating (including electronically) with you or a dependent person

A barring order can last up to 3 years.

Who can get a barring order?

• A spouse
• Civil partners
• Cohabitants who live in an intimate relationship (provided the applicant has a legal interest in the shared home which is equal to or greater than, that of the respondent)
• A parent of an adult child who is a non-dependent (provided the applicant has a legal interest in the shared home which is equal to or greater than, that of the respondent)
• Tusla, Child and Family Agency on behalf of an “aggrieved person”,

What is an interim barring order?

Between the time of making an application for a barring order and the court’s determination (decision), there may be reasonable grounds for believing that the safety and welfare of you or of a dependent person is at risk. If so, the court can grant a protection order (see above) or an interim barring order. An interim barring order is a temporary, immediate short-term order. It can last for a maximum of 8 working days. It requires the person accused of violent or abusive behaviour to leave the home where there is an immediate risk of significant harm to you or a dependent person (and a protection order would not give sufficient protection).

You can apply for an interim barring order while you wait for the court to hear your full application for a full barring order. Both applications can be made at the same time.

What is an emergency barring order?

An emergency barring order requires the person accused of violent or abusive behaviour to leave the home, and prohibits them from entering the home. This is an immediate order where there is reasonable grounds to believe there is an immediate risk of significant harm to you or a dependent person.

Unlike an interim barring order, the applicant does not have to satisfy the property test to be able to get an emergency barring order. This means the person applying for the order does not need to own, co-own or have their name on the lease of the property. An emergency barring order can last for a maximum of 8 working days. It prohibits the same behaviours as a barring order.

When the 8-day time limit ends, you may have to wait for one month to apply for another. In exceptional circumstances, a judge can waive or ignore this one-month wait time.

Applying for an order

To get a safety or barring order you must attend a District Court hearing. While you are waiting for the court to hear your application, the court can give you an immediate order, ie a Protection Order.

In an emergency situation, the Gardaí can request that the Courts Service arrange a special out-of-hours sitting of the District Court for someone looking for an interim barring order, protection order or emergency barring order.

A safety order or barring order can be renewed by applying for a further order before the previous one expires.

There is a list of factors that a court can consider when deciding on a domestic violence application (safety, protection or barring order). This list includes:

• History of violence by the respondent towards the applicant or any dependent person
• Increase in severity or frequency of violence towards the applicant or their children
• Exposure of children to violence inflicted by the respondent on the applicant or other child
• History of animal cruelty
• Substance abuse (including alcohol), by the respondent, the applicant or a dependent person
• The age and state of health (including pregnancy) of the applicant or any dependent person

What happens if an order is broken?

Anyone who breaks a court order (safety order, protection order, barring order, interim barring order or emergency barring order) is guilty of an offence. If the person accused of violence or domestic abuse prevents you or your dependants from entering or remaining in a place to which the order relates (while the order is in effect), this is also an offence.

The above offences under Section 33 of the Domestic Violence Act 2018 are punishable by a class B fine, a prison term of up to 12 months, or both.

When the court is deciding the sentencing for certain offences such as psychological, physical violence, sexual violence, coercive control and stalking, it is now considered an aggravating circumstance if the victim is or was a spouse, civil partner or in an intimate relationship with the offender. This means the court shall give a sentence which is greater than would have been given because of the fact that the victim and perpetrator (abuser) were in an intimate relationship. This is introduced by Section 40 of the Domestic Violence Act, 2018.

If the order is broken, ie breached, then a person who has obtained the Order should contact the Gardai to report the breach.

How to apply for a Safety Order or Barring Order or Protection Order?

How you apply for a domestic violence protection order depends on the type of protection you are applying for.

The Courts Service has a step-by-step guide to assist in applying for a domestic violence order from the District Court, see below. Most applications for domestic violence protection orders are made in the District Court.

How to Apply for a Domestic Violence Order

You can hire a solicitor to make an application on your behalf or you can make the application yourself. You may be entitled to legal aid.

You should go to your local District Office. The District Court Office staff will tell you the forms you need to make your application. If you are applying for a barring order or a safety order, the court clerk will arrange a court date for a court hearing. You will be given your summons for the court hearing at the time of your application. The forms will be sent to the respondent (the person accused of the violent or abusive behaviour) so that they can attend in court on the day of the hearing. You do not need a solicitor to make an application, but it is recommended that you have legal representation for a full court hearing.

The decision of the court is produced in the form of a written document called an ‘order’. If the respondent is in court when the order is made the respondent is considered to be notified and it is sent by the court office to the respondent by ordinary post. However, in the case of a protection order, interim barring order or emergency barring order the court usually directs that order be served on the respondent by a member of the Gardaí.

The court office will notify the Gardaí of the making of the order by sending a copy to the local Garda station by post. To avoid any delay in notifying the Gardaí, you should call to the Garda station immediately after the order has been made, tell them of the making of the order and leave a copy with them (you can allow them to take a photocopy). A copy of your order will be sent to the superintendent of your local Garda station by registered post the following day.

What if there is an emergency?

If there is an emergency situation or while you are waiting to go to court to get a barring order or safety order, you can get a protection order, an interim barring order, or an emergency barring order if you or a dependent child is at immediate risk of significant harm. If there is no sitting of the District Court at the time when you wish to make such an application, a member of the Gardaí may request the Courts Service to arrange a special sitting of the District Court. If you do not want a protection order or an interim barring order immediately, you can seek one at any time before your case is heard for a safety or barring order.

Further information on making an application, please see below:

Procedure in the District Court

Citizens Information on Barring, Safety and Protection Orders

Divorce and Separation, what can I apply for?

Mediation

Mediation is a service to help couples who have decided to separate or divorce, or for couples who have already separated, to come to agreement in relation to decisions about maintenance, access, custody, the family home, pensions and other issues that might be particular to the separating or divorcing couple.

Please see information below on how to apply for mediation and what it involves. If mediation is successful in that an agreement is reached, a consent separation or divorce can be applied for.

Family Mediation for Separating Couples

Enter into a Separation Agreement

This is a legally binding contract between both spouses and sets out the rights, entitlements and obligations to each other when a marriage ends. The terms of the agreement are usually reached through mediation or negotiation through solicitors and can form the basis of any future divorce.

Judicial Separation

If a couple cannot agree on the terms of living separately and ending their marriage, a decree of judicial separation can be applied for. This is a legal document/order confirming that you and your spouse are no longer obliged to live together as a married couple. The court may also make orders in relation to other matters such as custody and access to children, maintenance, the family home, inheritance and pension rights.

Grounds to apply for a Judicial Separation

An application for a judicial separation must be based on one of the following 6 grounds:

• You or your spouse has committed adultery.
• One of you has behaved in such a way that it would be unreasonable to expect you both to continue to live together.
• Where there has been desertion by the Respondent Spouse of the Applicant Spouse, ie where one spouse has deserted or left the other, the spouse who has been deserted can apply for a Judicial Separation when 1 year has elapsed from the date of desertion.
• You have lived apart from one another for at least one year at the time of the application for the decree of Judicial Separation.
• The court considers that a normal marital relationship has not existed between you for at least one year before the date of the application (this is the most common ground on which the decree is granted, as neither party has to be shown as being at fault).

The Family Law Act 2019 provides a definition of ‘living apart’ to give certainty to the interpretation of the term in the Irish courts. A married couple who live in the same home as one another are considered to be ‘living apart’ if they are not living together as a couple in an intimate and committed relationship. The Act also states that a relationship does not stop being an intimate relationship just because the relationship is no longer sexual in nature.

When you apply for a decree of divorce, the court can review your existing separation arrangements. This is review is important if your circumstances (or your spouse’s circumstances) have changed.

Further information from Citizen’s Information

How to apply for a Judicial Separation

When you are applying for a judicial separation, you must submit 4 documents to the Circuit Court.

1. A Family Law Civil Bill. This document describes both you and your spouse, your occupations and where you live. It also sets out when you married, for how long you have been living apart and the names and birth dates of your children.
2. An Affidavit of Means,  sworn before a solicitor, known as Form 37A, which outlines your financial situation. including all assets, income, outgoings, debts and liabilities.
3. An Affidavit of Welfare sworn before a solicitor, known as Form 37B. This document sets out all the personal details of the children of the marriage with whom they live and where, any health issues, childcare, their education, maintenance and access arrangements if any are in place.
4. A document certifying that you have been advised of the alternatives to judicial separation known as Form 37D which is sworn by a solicitor and it certifies that you have discussed the options of reconciliation,  mediation and separation agreements.

When both you and your spouse have filed all of the necessary documents, you will be given a date for the court hearing. Please see information below on filing an application for a Judicial Separation and responding to receipt of Judicial Separation proceedings.

Read the Courts Service on Judicial Separation

Divorce

Both spouses must live apart from one another for at least 2 out of the previous 3 years before one party can apply for divorce. The party applying is called “the Applicant” and the other party is called the “Respondent”. The Family law Act clarifies that ‘living apart’ includes couples who live in the same home as one another but are not living together as a couple in an intimate and committed relationship.

The Act also says that a relationship does not stop being intimate just because the relationship is no longer sexual in nature. One of the parties must be living permanently in Ireland when the application for a divorce is made, OR one of the parties must have lived in Ireland for at least the 1-year-period before the application is made

Parties can seek to agree the terms of a divorce through mediation, see information above on how mediation works. If the terms cannot be agreed, then one of the parties must apply to their local Circuit Court for a decree of divorce.

If the conditions are met to apply for a divorce as outlined above, 5 documents must be submitted to the Applicant’s local Circuit Court office.

1. The Family Law Civil Bill This document describes both spouses, the occupations of both parties, where they live, the date and length of the marriage and how long both parties have been living apart and the names and dates of birth of both children. If the parties entered into a separation agreement, this must be included when filing the application.
2. A sworn Affidavit of Means -Form 37A This document sets out the financial position, ie assets, income, debts and liabilities and details of outgoings. This will have to be vouched unless its contents are accepted by your spouse, ie that the contents, ie values, assets, outgoings, debts will have to be proven by submitting . Vouched means you will have to prove that the information is true with documents such as bank statements, pay-slips, property valuations, employment contracts and utility bills among others. The vouching documents required will depend on each individuals’ assets, income, debts and liabilities. A party should have 12 months vouching documentation prior to the commencement of the divorce proceedings and this will likely have to be updated during the course of the proceedings.
3. A sworn Affidavit of Welfare relating to the welfare of your children -Form 37B. This document sets out the personal details of the children of the marriage, where they live and with whom, their education and training, any health issues, childcare arrangements if applicable, maintenance and access arrangements.
4. A document certifying that you have been advised about mediation – Form 37D This document is signed by a solicitor. If you are representing yourself, this form is not needed.
5. Your original State marriage certificate. An official translation may be required if your marriage certificate is not in Irish or English.

Please see further information from the Courts Service on Divorce

If the divorce or any aspect of it is contested

If either spouse does not agree on the details, the other person, i.e. the Respondent, will need to submit forms too, including:

1. An Appearance. This indicates the other person’s intention to contest the divorce application, or any part of it.
2. A Defence and Counterclaim (which has similar details to the Family Law Civil Bill). This disputes any matters contained in the Family Law Civil Bill. It also sets out what the other spouse claims to be entitled to.
3. An Affidavit of Means – Form 37A This has to be vouched unless its contents are accepted by the other side.
4. An Affidavit of Welfare -Form 37B. If you wish, you can simply accept (by short affidavit) all the information contained in the first Affidavit of Welfare.
5. A document certifying that you have been advised about mediation – Form 37D – as above, if you choose to be represented by a solicitor.

Please see further information from the Courts Service

You may be required to file further documents before a hearing date will be given, such as an affidavit that proceedings have been served on any relevant pension trustees and notice to fix a date for trial.

What happens then?

After you and your spouse have submitted all of the necessary documents as outlined above, you will be given a date for case progression hearing to ensure there are no outstanding issues before a date for trial is given. This hearing will be held in private and you may be allowed by the court to have someone accompany you.

Please see the factors that a court considers when granting a divorce:

If the court decides you have grounds for a divorce, it will grant a decree of divorce. This means the marriage has officially ended and you are free to remarry.

Most applications for divorce are made in the Circuit Court. However, it is also possible to apply for a decree of divorce in the High Court. Applications in the High Court are rare and limited to cases where there are very substantial assets and complex ownership issues. The forms used will be similar in content, but they may vary in name and number.

What do I do if a term of the Judicial Separation/Divorce order is breached by one of the parties?

Proceedings for attachment and committal may be relevant here and it is important that if this occurs, a party should seek legal advice as there are certain technical requirements regarding the service of legal papers to have this matter brought before the Court again that a part will require advice on.

Dissolving a Civil Partnership

Civil partners may choose to informally separate and live apart if a relationship breaks down. If civil partners wish to formalise the break-up of their civil partnership, they can enter into a separation agreement. Such an agreement is legally binding and will outline each party’s rights and obligations to the other. The terms of the separation agreement can be reached through mediation or negotiation through solicitors.

If no agreement can be reached, the courts can dissolve a civil partnership by granting a decree of dissolution. Parties must have been living apart for 2 out of 3 years. The Family Law Act 2019 contains a definition of ‘living apart’ and it clarifies that civil partners who live in the same home as one another are considered to be living apart if the civil partners are not living together as a couple in an intimate and committed relationship. The Act also sets out that a relationship does not cease to be an intimate relationship merely because the relationship is no longer sexual in nature.

A decree of dissolution formally ends a civil partnership and the court may also make orders in relation to a number of issues including the transfer of property, maintenance, succession rights and rights to any pensions. Proper arrangements must have been made or will be made for the civil partners and any dependent child of the civil partners before a court will grant a decree of dissolution.

As parties must have been living separately for 2 years before an application for a dissolution is made, separating civil partners may decide to enter into a separation agreement to regulate matters between them, before they seek a dissolution. In any application for a decree of dissolution, the court can review any previous arrangements made by the parties such as a separation agreement, particularly if the circumstances of either party have changed.

When a decree of dissolution is granted, it cannot be reversed but parties can apply to the Court to have any orders made when the decree is granted, reviewed.

If both parties to a civil partnership wish to marry, they will also require a decree of dissolution to dissolve the civil partnership first.

How to apply for a dissolution of a Civil Partnership?

You can represent yourself although it is always advisable to have legal advice and it may be necessary to instruct a solicitor in the event that issues are complicated.

3 documents will be required when a party applies for a civil partnership.

1. A Family Law Civil Bill which outlines details of both civil partners, occupations, addresses, when the civil partnership was registered and for how long both parties have been living apart. It also sets out the names and dates of birth of any children.
2. A sworn Affidavit of Means. This document sets out your assets, your income, your debts, your liabilities and your outgoings.
3. A sworn Affidavit of Welfare. This document sets out the personal details of the children. It describes where they live and with whom. It also describes their education and training, their health, childcare arrangements and maintenance and access arrangements.

It is not necessary to submit a document certifying that you have been advised of the alternatives to dissolution, as is required in divorce applications.

When all of the necessary documents have been filed, you will be given a date for the court hearing. The hearing will be held in private and you will need to show the court that you meet the requirements of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and if the court is satisfied that you have grounds for a dissolution, it will grant a decree of dissolution.

What is cohabitation?

A cohabiting couple is a couple that lives together in an intimate and committed relationship, who are not married to each other and not in a civil partnership. Cohabiting couples can be opposite-sex or same-sex.

What rights do cohabitating couples have?

While couples living together now have certain rights in the event of the death of either partner, or the breakup of a relationship, cohabiting couples do not have the same legal rights as married couples and civil partners. This is very important and may have a bearing on the issue of inheritance, buying property and children.

Inheritance

If 2 cohabiting partners are living together and one partner dies without a will, the other partner has no automatic right to inherit from their deceased partner’s estate. This is the case irrespective of how long partners have cohabited together.

Where a partner provides for the other in a will, there will be a Capital Acquisitions Tax (CAT) liability of 33% over the class c threshold tax rate, which is currently €16,250.00.

There are significant legal differences between being married and living together and it is important that both parties are aware of this. Please see further information on the Rights of Cohabiting Couples (Couples Living Together).

What rights does a cohabiting partner have when a relationship breaks up or a cohabiting partner dies?

If your relationship ends, you may be able to avail of the ‘redress scheme for cohabiting couples’. The aim of this redress scheme is to protect a financially dependent member of the couple if the long-term cohabiting relationship ends whether that is through death or separation.

The rules of the scheme are set out in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

To apply for court orders under the redress scheme, you must be a qualified cohabitant which means that you must have been:

• A cohabitant (living together in an intimate and committed relationship) for at least 5 years, or
• A cohabitant (living together in an intimate and committed relationship) for 2 years if you have had a child with your partner

If you are a qualified cohabitant and you were financially dependent on your former partner, you can apply to the court for court orders, such as:

• A maintenance order
• Property adjustment order
• Pension adjustment order

If your partner has died, you can apply for provisions to be made for you from their estate.

You do not have an automatic right to get these orders granted, the court must be satisfied that you were financially dependent on your cohabitant partner. When assessing “financial dependence”, and when making a decision, the Court must consider factors including the below:

• The financial circumstances, needs and obligations of you and your former partner
• The rights of others (including the rights of spouses, former spouses, civil partners, former civil partners and dependent children of either partner)
• The length and nature of the relationship
• The contributions made by each of you, financial and otherwise

IT IS IMPORTANT THAT LEGAL ADVICE IS TAKEN IN RELATION TO WHETHER A PARTY IS A QUALIFIED CO HABITANT AND WHAT IS THE MEANING OF “FINANCIAL DEPENDANCY”.

Court orders may not affect the rights of spouses or former spouses but they may affect the rights of civil partners or former civil partners.

Time limits when applying for court orders under the redress scheme

In general, you must apply for court orders within 2 years of the end of your relationship.

If your partner has died, you must make an application for provision from their estate within 6 months of an application for a grant of probate/administration and orders usually lapse and will no longer be available if the benefiting party gets married. It is very important that if a cohabiting relationship breaks up or a cohabiting partner dies, that the other partner seeks legal advice as soon as possible.

Further Information:

Redress Scheme for Cohabiting Couples