Property rights of cohabiting couples
What is a cohabiting couple?
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.
Couples who live together can choose to enter into a cohabitation agreement (also called a cohabitant’s agreement). This is a signed contract setting out your financial interests 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.
You and your partner must get legal advice before entering into a cohabitant’s 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.
Buying a home together
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
Before you make your decision, it is important that you understand the nature of each type of ownership and title. How you will co-own the property can affect your capacity to deal with the property in the future.
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.
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 Acquisition 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 Acquisition 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 Acquisition 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.
If you do not make a will, your share of the property becomes part of your estate if you die. Your partner may be forced to sell the home to allow the administration of your estate.
In addition, your family (or even a separated spouse or civil partner) 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.
Local authority housing
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.
Getting legal advice
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.
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.