High Court decision gives a clearer picture on rights of non-married farming couples.

A relatively recent High Court decision by Ms Justice Baker is likely to provide some clarity to cohabitants in deciding whether or not to bring claims before the court in applying for financial provision from the estate of their deceased cohabitant or in the event that the relationship breaks down.

It has huge relevance today, given that more and more people are choosing to live together before marriage, choosing not to marry at all, or for older couples who are divorced and do not wish to marry again but to live with a partner.

Facts of the Case

The plaintiff, the surviving cohabitant, claimed to be in an intimate, cohabiting relationship with the deceased, who did not leave a valid will.

He had been in a previous marriage, which was annulled, and he had no children. The deceased never married and had no children.

He sought provision from her estate upon her death. The defendant was a brother of the deceased.

The plaintiff was 64 years of age, a farmer and horse trainer. The deceased was 69 when she died and worked as a school secretary. 

They met in 1994 and the surviving cohabitant’s case was that they became intimate in 1995, and entered into a committed relationship soon after, when the deceased’s mother passed away.

The deceased inherited land from her mother, which was sold in 2005 and she received €3.1m. 

For approximately eight years from that point, he lived with the deceased for two or three nights a week at her home. 

In 2004, he moved in with the deceased and lived there until the deceased passed away. 

Evidence was given by the plaintiff that they shared an interest in horses, shared a double bed, ate their meals together and attended 40 weddings together. 

The deceased was diagnosed with cancer. The surviving cohabitant looked after her during her illness.

The court took into account the criteria set out in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, such as the duration of the relationship, the degree of financial independence, any financial arrangements between them, if one of the adults cared and supported the children of the other, and the degree to which the cohabitants operated as a couple.

The deceased spoke of marriage and Ms Justice Baker held that this discussion was “an indicator of the strength and nature of their bond”.

Interestingly, the judge held that though the couple were not financially dependent for the basics of life, the plaintiff clearly had a degree of financial dependence on his deceased cohabitant.

In making the decision the judge took into account that the plaintiff did not have sufficient financial resources for his own needs and that there were no other persons in respect to whom the deceased had any obligations to provide financially.

The plaintiff did have a small farm, which did not have residential accommodation. The court felt it was unreasonable to direct that the farm be sold.

The court directed that the surviving cohabitant be granted provision of approximately 45% of the deceased cohabitant’s share.

This case demonstrates the degree to which a plaintiff in bringing these types of claims must prove there was an intimate and committed relationship, that the parties enjoyed activities together, that they presented as a couple and that there was some financial dependency and interdependence between them.

In the case of a son or daughter who has been transferred the farm, who is living with his or her partner, passing away, it is very important for him/her to make a valid will directing who is to inherit the farm in the event of his or her death. 

A cohabitant who comes under the legislation can make a claim against the estate for financial provision to be made for him/her out of the estate.

The claimant must prove financial dependence on the deceased cohabitant. In the case that the relationship breaks up, a claim can also be made and, again, financial dependence must also be proved to the court.

A surviving cohabitant has no automatic right to a share in a deceased cohabitant’s estate, unless specifically provided for in the will.

Some couples have decided to opt out of the 2010 Act by entering into a cohabitation agreement that sets out in advance how they intend to deal with their financial affairs should the relationship fail.

Co-habitation agreements are similar to pre-nuptial agreements for married couples. 

Both parties should receive independent legal advice prior to signing.

Karen Walsh, from a farming background at Grenagh, Co Cork, is a solicitor practicing in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.

  Telephone: 021-4270200 

  Email: info@walshandpartners.ie 

  Web: www.walshandpartners.ie 

While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.


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