The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 introduced a “redress scheme” for certain cohabiting couples (both opposite-sex and same sex) who are not married but were in an intimate and committed relationship which has broken down. The scheme allows them access to certain remedies in the courts, such as maintenance orders, pension adjustment orders, and property adjustment orders.
To avail of the scheme, the parties need to have lived together for five years or for two years if they have a child together.
It is possible to contract out of the redress scheme and either of the parties can apply for civil legal advice in relation to this. The two parties should be represented by separate law centres in this case.
When considering an application for legal aid to take an action for cohabitant relief, the decision maker must first be satisfied that the Applicant meets the criteria for the scheme:
- Lived with the intended Respondent for five years OR for two years and has a child with the intended Respondent
- Lived in an intimate and committed relationship with the intended Respondent during this period.
- Is not married to anyone else and has not lived away from their spouse for 4 out of the last 5 years
If the Applicant fails to meet this criteria the application must be Refused.
The decision maker should then consider the following factors which the solicitor should have addressed in the submission:
- The Applicant’s financial circumstances and needs
- Whether the Applicant is financially dependent on the other party and whether that financial dependence arose from the relationship or the end of the relationship
- Whether the Applicant was married/civil partnered before and if so the rights and entitlements of the former spouse/civil partner
- Whether there are dependent children and the financial circumstances they find themselves in
- The duration and nature of the parties relationship and the contribution they made towards their home
- Whether the Applicant, by reason of the responsibilities they assumed during the period of cohabitation, gave up the opportunity to work in order to look after the home and the effect that has had on their career.
- Whether the Applicant suffers any physical or mental disability
- Whether there are any issues regarding the conduct of the parties.
The specific remedies that are to being sought under the 2010 Act. These remedies will need to be significant that cannot be obtained by the Applicant other than by recourse to an action for cohabitant relief. It should be noted that the Court does not have the power to order the sale of the “family home” in proceedings brought under this legislation. In any case where either or both of the parties have children, the “reduced” merits test applies.