Farm Legal Advice: Can my brother's unmarried partner make a claim on the farm?
To The Courts Up Apply Now Who Habitants Reliefs May For Various Financial Co Break Qualified
Dear Reader,
The answer to your question is yes, your brother’s partner could make a claim to his farm and farmhouse under the Civil Partnership and Certain Rights of Co-habitants Act 2010 if she was in an intimate and committed relationship with your brother for at least five years, or two years if they have a child together, provided that neither of them are married or less than four years separated from that spouse.
She does not have automatic rights. In order to bring a claim, she would have to satisfy the courts that she was a qualified co-habitant. Evidence would have to be shown that they were in fact living together, and were in an intimate and committed relationship for the required time period. She would also have to prove that she was financially dependent on him.
Qualified co-habitants who break up may now apply to the courts for various financial reliefs, for example, a maintenance order, either a periodic or lump sum, a pension adjustment order, a property adjustment order, which allows a court, if satisfied that sufficient contributions have been made, to transfer all or part of a property into their sole name.
The court can make various redress orders if it is satisfied that she is financially dependent on your brother and that such dependency arose because of the relationship or the ending of the relationship.
The court can take a range of factors into account, including the financial circumstances, needs and obligations of:
- Each qualified co-habitant;
- The rights and entitlements of any spouse, civil partner or former spouse or civil partner;
- The rights and entitlements of any dependent child, or any child of a previous relationship of either co-habitant;
- The duration of the relationship;
- The basis on which the parties entered into the relationship;
- The degree of the commitment of the parties to one another;
- Any contributions made by either co-habitant to the relationship whether financial or otherwise;
- The effect on the earning capacity of each of the co-habitants of the relationship;
- Any physical or mental disability and the conduct of each of the co-habitants.
Inheritance laws are also affected and if one co-habitant dies within a relationship, the remaining co-habitant does not have to be financially dependent to make a claim on the Estate.
You have not mentioned how long your brother is living with this woman. If they do not have children together and they are not living together for over five years, then this Act does not apply at present.
You could encourage an “opt-out” of the act by entering into a Co-Habitation Agreement that sets out in advance how they intend to deal with their financial affairs should they break up. It is a little like a prenuptial agreement for married couples.
Both parties should receive independent legal advice or confirm in writing their refusal to take independent legal advice, for an agreement to be valid. A Co-Habitation Agreement would at least protect couples from the unknown should their relationship not work out.
Where co-habitants have a written agreement on their financial affairs, this will now be legally recognised at the end of their relationship, through death or separation.
If your brother does not have a Will in pace, he should put one in place immediately. If he wishes to look after her in his Will, he should of course do so. If his intention is to leave the farm to your parents or a niece or nephew, he should expressly state that in his Will.
Email: info@walshandpartners.ie
- While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.
