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David Hodson on International Family Law: Irish cohabitation reforms

Date:6 SEP 2010

David Hodson

Leading Irish family lawyer, Jennifer O'Brien, of Mason Hayes+Curran (www.mhc.ie) has helpfully prepared a briefing paper on the changes in the Republic of Ireland in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 expected to come into force early 2011. It is regarded as of tremendous social significance to enhance rights and protections for thousands of Irish men and women.

Civil partnership was a curiously typical English compromise, eschewing treating same-sex unions as marriage yet giving similar rights. As the more strident members of the same sex community continue to demand same-sex marriage yet many look at the declining take up of civil partnership and the increasing rate of dissolution, termination, of civil partnerships, it is instructive that Ireland has followed the civil partnership route. Social change cannot go too fast, imposing on those who have genuine anxieties and concerns. The time is not yet right for same-sex marriage. The UK and the Republic of Ireland now need years to consider the impact of civil partnership.

The Irish reforms give qualified cohabitants similar rights on relationship breakdown as on divorce. There are factors similar to s 25 of the Matrimonial Causes Act in England and ss 75 and 79 of the Family Law Act 1975 (Australia). Compensatory maintenance is available. Cohabitants can by written agreement opt out of the presumptive scheme provided there was independent legal advice and other contractual safeguards.

A frequent international dilemma is qualifying conditions. Ireland requires 2 years cohabitation when parents of a dependent child otherwise 5 years. The court also takes into account circumstances of the relationship with a useful checklist. There has to be an intimate relationship although this does not have to be sexual. A person does not qualify if they are married to someone else at any time during the relationship. It disqualifies the entire relationship. As Ireland requires 4 year separation before divorce, there may be considerable numbers cohabiting whilst still legally married, and therefore not qualifying.

The 5 year period of cohabitation is in contrast to the legislation promoted in England by resolution of only 2 years and the new Australian de facto reforms in Part VIIIAA of the 1975 Act.

The Irish reforms follow English civil partnership legislation on recognition of registered foreign relationships and declarations of status of foreign civil partnerships. For cohabitants, there is only jurisdiction if both were ordinarily resident for one year prior to the end of their relationship and one is also domiciled. This is designed to prevent forum shopping, perhaps Ireland being mindful of the generally perceived inadequate legislation across the Irish Sea in England and Wales! Like many English international family lawyers, I remember a dramatic traffic in the 1980s and early 1990s of Irish citizens coming across to London to obtain a divorce. Dublin has prevented the reverse in this decade. Nevertheless Jennifer O'Brien in her briefing note rightly rejoices that Ireland now has a more liberal family law regime than its nearest neighbour.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.