I read your recent article regarding Cohabitants and their rights. I have lived with my partner for six years. I had hoped that all of my estate would pass to my children when I die. However, I am now very concerned that my partner will have a claim against my estate. Is there anything I can do to prevent this?
As explained last week, the Civil Partnership and Certain Rights and Obligations Act, 2010 (the Act) established a redress scheme for qualified cohabitants which may be activated at the end of a relationship or upon the death of one of the parties. A qualified cohabitant refers to two adults living together as a couple in an intimate and committed relationship and who cohabit for a period of (i) two years or more if they are parents to a child or (ii) five years or more in any other case.
However, this Act also allows cohabitants to opt out of the provisions of the Act if they so wish. Cohabitants may enter into a Cohabitation Agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise. Cohabitants may agree not to seek redress from each other in the event of a relationship breakdown. Furthermore, cohabitants may agree not to seek provision from the estate of the other in the event of the death of either party.
Such an Agreement is in essence considered a legal contract and must be in writing and signed by each partner. The Agreement will only be regarded as valid if each partner has received independent legal advice prior to signing the Agreement. Alternatively, the partner must confirm that they have waived the right to such independent legal advice.
The Act also provides however, for a Court to set aside or vary a Cohabitation Agreement in exceptional circumstances where its enforceability would cause serious injustice.