Property rights of cohabiting couples

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. A cohabiting relationship can continue to be ‘intimate’ even if it is not sexual.

In Ireland, cohabiting couples have certain rights in relation to property, custody of children, maintenance and inheritance. To qualify for these rights, you must be cohabiting for at least 5 years (or 2 years if you have dependent children together).

The law on the rights of cohabitants is set out in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

When buying a home with your partner, you will need to decide whether to register the property with land registry as either:

• Joint tenants, or
• Tenants-in-common

How you will co-own the property can affect your capacity to deal with the property in the future.

Always get professional legal advice before choosing a home ownership option. Your decision may impact your property rights in the event of a breakup, or in the case of a death.

Joint tenancy

Joint tenancy is the most common type of co-ownership title. Joint tenancy means you both co-own the property in equal shares. You cannot sell or rent the property without your cohabitant’s consent. If one cohabitant dies, the other person will automatically own all of the property regardless if an alternative provision has been written into the deceased person’s will. The beneficiaries of the deceased’s estate will have no claim to the property under a joint tenancy.

In a joint tenancy, both of you are unable to leave the property to anyone else so long as the joint tenancy is still in existence.

However, if you are not married or civil partners and your partner dies, you (the surviving joint tenant of the property) may be liable for Capital Acquisitions Tax as a result of becoming full owner of the property through survivorship. Your partner is effectively ‘gifting’ you their share of the property, but because you are not married (or civil partners), you may have to pay Capital Acquisitions Tax which is applicable to gifts and inheritances.

You can be co-owners in a joint tenancy even if one person contributes more financially to the property than the other person. However, if one person has paid more for the property and the house is sold at a later date, the other person may, in some circumstances, get less than 50% of the proceeds.

Similarly, if you contribute a smaller amount to the purchase price of the property, your cohabitant is effectively ‘gifting’ you a larger part of your property entitlement. In the event that your cohabitant dies, this ‘gift’ may be liable for Capital Acquisitions Tax.

As there may be tax implications for cohabitants in a joint tenancy, you should always get professional legal advice. See ‘Getting legal advice’ below.

Tenancy in common

Tenancy in common means 2 people own the property in defined shares, for example, 50/50, 75/25, 60/40.

Each person can leave their share of the property to whoever they wish (including their partner), but they must make a will stating this fact.

Your share of the property becomes part of your estate when you die. Your partner may be forced to sell the home to allow the administration of your estate, particularly if there are no other assets to pay any debts due. The person who inherits your share may seek to sell property in order to get the monetary benefit of the gift.

In addition, your family (or even a separated spouse or civil partner in some circumstances) can claim this share. Your surviving partner does not have any automatic right to your share of the property.

Read more about dealing with a deceased person's estate.

Selling the home

If you are cohabiting with your partner in their house, they do not need your written consent before they can sell or lease the house.

If you co-own the home, the property cannot be sold without both people’s written consent.

Read about your property rights and the breakdown of a relationship.

Cohabiting couples can apply for local authority housing (also called social housing). Local authority housing is generally allocated based on your need for housing and whether you can afford to pay for your own accommodation.

You and your partner can apply for the allocation of a house to be held in joint tenancy (see above).

If you move in to a local authority house where your partner is already the sole tenant, you can apply for joint tenancy after 2 years.

Read more about applying for local authority housing.

Couples who live together can choose to enter into a cohabitation agreement (also called a cohabitants' agreement). This is a signed contract dealing with financial matters during your relationship of if your relationship should end (including what will happen to certain assets, such as your shared property).

In the event of a break-up, a cohabitation agreement can make the division of your assets more straightforward. If your relationship ends on your or your partner’s death, shared property held as joint tenants will pass automatically to the surviving partner, regardless of what is set out in the cohabitants’ agreement.

You and your partner must get legal advice before entering into a cohabitants' agreement, and it must be signed by both of you to be valid. Once signed, the agreement can be enforced by the court.

In exceptional circumstances, the court can vary (change aspects of) or set aside your cohabitation agreement, where enforcing it would cause serious injustice.

If you have been living in an intimate and committed relationship with your partner and your relationship ends (either through death or separation), you may qualify for the redress scheme for cohabiting couples. Under the redress scheme, cohabiting couples can get similar types of orders from the court as are available to married couples when they separate or divorce (for example, a ‘maintenance order’ or ‘property adjustment order’).

If you are buying (or considering buying) a property with your partner, you should get legal advice to find the best ownership option for you.

Solicitors' fees can vary considerably so shop around and get some quotes before deciding who to use. Find contact details for solicitors on the Law Society website.

Contact your nearest law centre for information on legal aid. If you are eligible for legal aid and advice from the Legal Aid Board, you must generally pay a contribution towards the costs.

FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.