Z v Y

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 14 October 2022
• Neutral Citation: [2022] IEHC 583
• Court: High Court
• Docket Number: [Record No: 2020/106M]

In the Matter of the Estate of [Stated Person] of [Stated Address], [Stated Occupation], Deceased

and

In the Matter of Sections 172 and 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010

Between:

Z

Applicant

and

Y

Respondent

[2022] IEHC 583

[Record No: 2020/106M]

THE HIGH COURT

Qualified cohabitant – Declaratory relief – Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 s. 172 – Applicant seeking a declaration that she was a qualified cohabitant within the meaning of s. 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 – Whether the deceased and the applicant were living together in the manner contemplated by s. 172 of the 2010 Act

Facts: The deceased (Mr X), at the time of his death, was married to the respondent (Mrs Y) and in an extra-marital relationship with the applicant (Ms Z). There were no dependent children. Ms Z, by summary summons of 18th January 2020, applied to the High Court seeking a declaration that she was a “qualified cohabitant” within the meaning of s. 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, as well as certain reliefs under ss. 174, 187, and 194 of the 2010 Act.

Held by Barrett J that he did not see that Mr X and Ms Z were ‘living together’ in the manner contemplated by s. 172(1) and (2)(b), as opposed to spending time together and enjoying occasional intimate relations with each other. Barrett J noted that Mr X’s marital home was at stated address “B” and after Ms Z entered Mr X’s life he continued to sleep at the marital home. Taking Mrs Y’s case at its height, Barrett J noted that after Mr X rose in the morning at the marital home, and after he opened and spent time at the office, he would attend at her house for breakfast and bring her to work; then in the early evening, he would collect her from work or have someone else do so and they would then dine together (at some point in their interactions they also likely enjoyed some degree of intimacy). It did not appear to Barrett J that Mr X and Ms Z always spent later-evenings together. Barrett J accepted in that regard the evidence of Mr X’s son that Mr X heading out to drink at one or more local licensed establishments on many an evening. To the extent that Ms Z suggested otherwise, that contrary suggestion seemed to Barrett J to be not wholly correct. Barrett J noted that on those evenings that he did spend with Ms Z, Mr X headed off at 1-2am to sleep at the marital home. As to Mr X having been named on the utility bill at stated address “A”, Barrett J noted that he was also named on utility bills at address B and stated address “C” and his being named on the bills for address A appeared in any event to have dated from a time before he and Ms Z were allegedly living together. To the extent that Mr X made promises of financial provision for Ms Z and/or her family after he was gone, or that he wished to move to a stated EU member state, Barrett J noted that none of these things were done. Barrett J was not satisfied that Ms Z was a qualified cohabitant within the meaning of s. 172 of the 2010 Act. Barrett J noted that a relevant order under ss. 174, 187, and 194 of the 2010 Act is only available to a qualified cohabitant.

Barrett J refused the reliefs sought.

Reliefs refused.

Summary

This judgment concerns a failed application for (i) a declaration that the Applicant is a “qualifying cohabitant” within the meaning of s.172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and (ii) certain reliefs under ss.174, 187, and 194 of that Act.

JUDGMENT of Mr Justice Max Barrett delivered on 14 ^th October, 2022 .

1 . The nature of this application means that it is necessary to examine in a little detail the personal relationships that each of Mrs Y and Ms Z had with the late Mr X. Though this is necessary, I have sought to be as sensitive as possible and to avoid any indelicacy in the pages that follow.

2 . At the time of his death, Mr X was married to Mrs Y and in an extra-marital relationship with Ms Z.

3 . Ms Z claims to be a “ qualified cohabitant” within the meaning of s.172(5) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Section 172(5) provides as follows:

“ (5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period – (a) of 2 years or more, in the case where they are the parents of one or more dependent children, and (b) of 5 years or more in any other case.”

4 . Here, there are no dependent children.

5 . Significantly, s.172(6) of the Act of 2010 as amended, provides a ‘carve-out’ as to who may be a qualified cohabitant, providing as follows:

“ (6) Notwithstanding subsection (5), where the relationship concerned ends before the coming into operation of section 4(2) of the Family Law Act 2019, an adult who would otherwise be a qualified cohabitant is not a qualified cohabitant if (a) one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and (b) at the time the relationship concerned ends, each adult who is or was married has not lived apart (which term shall, in this section, be construed in accordance with section 5(1A) of the Family Law (Divorce) Act 1996) from his or her spouse for a period or periods of at least 4 years during the previous 5 years.”

6 . As mentioned, Mr X was married to Mrs Y at the time of his death. So, item (b) becomes of critical importance in this application. Is it the case that at the time of Mr X's death he had lived apart from Mrs Y for a period or periods of at least four years during the previous five years? I will call this the ‘Living Apart Question’.

7 . Ms Z in her grounding affidavit avers, amongst other matters, as follows, when it comes to the Living Apart Question:

“ I met the Deceased in 2011, at which point we began dating. I say that at the beginning of 2012 the Deceased and I had entered a committed, exclusive, intimate relationship. I commenced co-habiting and living with the Deceased at the end of 2012. We lived together at [STATED ADDRESS A]. I say that the Deceased and I resided together as a couple at that address, continuously, for a period in excess of 5 years and more particularly from the end of 2012, until the relationship was ended by the death of the Deceased, [in autumn 2018]”.

8 . Mrs Y in her replying affidavit avers, amongst other matters, as follows, when it comes to the Living Apart Question:

“ 3. The Applicant alleges that between the period of late 2012 until [Mr X's date of death] that she and my husband…cohabited in a committed, exclusive intimate relationship at [STATED ADDRESS A]. However, my husband and I remained married until his death….We were never estranged during our marriage. My husband resided in our home at [STATED ADDRESS B] from 1997 until the date of his death….I accept that the Applicant and my husband were in a relationship and that it was intimate. I deny…that we ceased to cohabit as husband and wife at [STATED ADDRESS B] ….

29. Our relationship was ongoing and continued up until his death. During the period 2012 to 2018 this was not a celibate relationship.

30. We did not share a bedroom throughout our marriage. He worked nights for approximately 30 years. His sleeping patterns were totally irregular….

31. In addition…the Deceased routinely came home and to bed wholly intoxicated or having drunk alcohol. As a result of his…night-time behaviour it was impossible to achieve a night's sleep while sharing a bed with him….

33. As a result of my husband's interest in building and in expanding our home….in or around [STATED DATE] he caused [an] …office premises to be built to the side/rear of the house. By reason of planning conditions, this structure is directly connected to our house. During the approximately two years that the construction took to complete, my husband's business was conducted from the living-room of our home.

[Mr A, a son of Mr X gave evidence to the effect that he would often come to work with his father early in the morning and find him already in these office premises].

34. I say that my husband always considered [STATED ADDRESS B] to be his home, it was as a matter of fact his home and it was for this reason that he carried out the various extensions and constructions including during the period [STATED DATE] to [STATED DATE] ….

39 ….[T] he bedroom which the Applicant claims to have shared with my husband for six years contains a double bed, one wardrobe [and] a three-drawer locker. The property [in which this bedroom sits] was fully let during the period [STATED DATE] to [STATED DATE] and the kitchen and bathroom facilities were shared among the occupants. My husband was a man who enjoyed his comforts. He was not the type of man who would or could have lived within the limits of the accommodation of the fully occupied downstairs unit.

40. When he died my husband had in excess of approximately 300 items of outerwear as well as large amounts of personal items and documents. The Applicant would appear to be suggesting that I maintained all of these items between 2009 when she alleges our marriage ended and 2018 when he passed away. This is just as unrealistic as the suggestion that he cohabited with her and two others at [STATED ADDRESS A] for a six-year period.

41. I accept that my husband stayed overnight from time to time with the Applicant and I would accept that he may well have had some limited clothing and perhaps toiletries there. I never could account for the whereabout of my husband at all times and I very much...