C.D. v B.B.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stack |
| Judgment Date | 22 October 2021 |
| Neutral Citation | [2021] IEHC 684 |
| Docket Number | [Record No. 2015/59M] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 684
[Record No. 2015/59M]
THE HIGH COURT
JUDGMENT of Ms. Justice Stack delivered on the 22 day of October, 2021.
This is a preliminary issue raised by the respondent by letter dated 4 June 2021, just before the substantive hearing commenced on 8 June, 2021. Legal submissions were subsequently heard on this issue and I indicated I would rule on the matter at a later date.
The applicant in these proceedings seeks relief pursuant to s. 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010. Section 194 provides:
“(1) A qualified cohabitant may, after the death of his or her cohabitant but not more than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant's estate, apply for an order under this section for provision out of the net estate.”
In this case, the applicant claims to have been living together as a couple with the deceased in an intimate and committed relationship for over 30 years ending on the death of the deceased in the summer of 2011. The 2010 Act was commenced on 1 January, 2011 (art. 3(1), S.I. 648 of 2010).
It is common case that the applicant and the deceased did not have children together. A “qualified cohabitant” is defined by s. 172(5) of the 2010 Act, in the case of a couple without dependent children, as meaning:
“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 – … (b) of 5 years or more….”
Ryan, Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, (Dublin, Round Hall, 2011) points out (at p. 275) that a person is entitled to be treated as a qualified cohabitant only at the end of the relationship, as indicated by the use of the past tense in this definition.
The respondent contends that s. 194 only applies where the requisite period of cohabitation took place after the commencement of the Act. If this contention is correct, then clearly the entire application would fail in limine as the applicant could not show five years' cohabitation between the commencement of the Act and the death of the deceased.
There are two previous judgments of this court in which, as in these proceedings, the fact of the existence of the necessary intimate and committed relationship was put in issue. In both cases, D.C. v. D.R. [2015] IEHC 309 and G.R. v. Regan [2020] IEHC 89, part of the requisite period of cohabitation took place prior to the commencement of the 2010 Act. However, this issue was not raised, and consequently neither judgment constitutes a precedent which is applicable to this ruling.
There are two components to the respondent's argument. First, it is said that the transitional provision, s. 206, which explicitly provides that the qualifying period of cohabitation can take place prior to the commencement of the Act, on its face expressly applies only to applications under provisions of Part 15 other than under section 194. Applying the maxim expressio unius est exclusio alterius, this means that pre-commencement periods of cohabitation are not reckonable for the purposes of s. 194, and that s. 194 therefore does not apply to the applicant, such that these proceedings should be dismissed. Secondly, it is said that the presumption against retrospective legislation applies, such that clear statutory words are required to render pre-commencement periods of cohabitation reckonable for the purpose of an application pursuant to section 194.
The two arguments are, in reality, interrelated. If the common law presumption against retrospective legislation applies, then the ordinary canons of construction are modified somewhat so as to require clear provision for a right to apply for relief under s. 194 where all or part of the necessary period of cohabitation took place prior to the commencement of the Act. I will therefore consider first whether an interpretation of s. 194 which takes into account a pre-commencement period of cohabitation would bring that provision within the category of retrospective legislation. If so, it will be necessary to consider whether the presumption has been rebutted with the necessary clarity. If not, then the presumption will have no relevance to the interpretation of the relevant statutory provisions.
There is a presumption at common law that the legislature does not intend retrospective effect, but this can be displaced by clear statutory wording or by necessary implication. There is no constitutional presumption to this effect, although Article 15.5 prohibits the Oireachtas from declaring acts to be infringements of the law that were not so at the time of their commission, and legislation which retrospectively interferes with or impairs constitutionally protected rights, such as property rights, could thereby also become unconstitutional.
The respondent does not challenge the constitutionality of any provision of the 2010 Act although he suggests in written submissions filed for the purposes of this issue that a constitutional interpretation of the Act may require exclusion of pre-commencement periods of cohabitation from reckoning. However, I did not understand the respondent to pursue this suggestion that a constitutional interpretation of the relevant provisions required the exclusion of pre-commencement periods of cohabitation, and the argument proceeded by reference to the common law presumption only.
The two main authorities cited to me in support of the submission that the presumption against retrospective legislation applies were O'H v. O'H [1990] 2 I.R. 558 and Hamilton v. Hamilton [1982] I.R. 466.
Hamilton v. Hamilton was a case where the Family Home Protection Act, 1976, was enacted after the conclusion of a binding contract for the sale of land. To apply the provisions of the 1976 Act to a pre-existing enforceable contract of that kind would be to disturb the vested right of the purchaser to compel completion of the sale. As a matter of law, the contract had already, prior to the commencement of the 1976 Act, passed at least part of the beneficial interest in lands to the purchaser. On the facts of that particular case, the purchaser had in fact issued specific performance proceedings prior to the commencement of the 1976 Act, and these ultimately resulted in an order for specific performance, but it is clear from the judgments of the majority that, even without that particular circumstance, they would have required the 1976 Act to have clearly provided for the application of s. 3 of the 1976 Act to contracts executed before it was commenced.
It was not necessary, however, that such provision be made expressly, and it would have been sufficient for the purposes of rebutting the common law presumption if such a meaning emerged by necessary implication: see the judgment of Henchy J. at p. 484–5. This point is reiterated by the Supreme Court (per Fennelly J.) in Minister for Social, Community and Family Affairs v. Scanlon [2001] 1 I.R. 64, at p. 87–8.
In Hamilton v. Hamilton, O'Higgins C.J. adopted (at pp. 473–474) a definition taken from Craies on Statute Law (7th ed., p. 387) to the effect that a statute is to be deemed to be retrospective in effect when it “takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.”
At the hearing of the preliminary issue, counsel for the respondent was unable to point to any vested or established right enjoyed by the respondent, or indeed any beneficiary of the estate of the deceased, which might have been impaired or taken away by the application of the applicant to provision out of the estate.
Counsel pointed to the right of the deceased to dispose of his assets as he saw fit. However, the freedom of a testator has, at least since the commencement of the Succession Act, 1965, been subject to important restrictions, such as the legal right share of a surviving spouse, and the right of a child of a deceased to apply pursuant to s. 117 for provision out of the estate. It therefore does not seem that there is any vested right in any person to have complete freedom to dispose of their assets on death as they see fit. That freedom, if it can be regarded as a vested right of some kind, appears to be understood as a freedom which is subject to statutory regulation. It is notable that s. 194 is in similar terms to s. 117 of the 1965 Act and presumably was enacted to reflect the social reality that many couples now choose to remain unmarried, despite their commitment to each other. The freedom of the testator is a concept that has been subject to significant erosion since the commencement of the 1965 Act, in the interests of other persons to whom it is felt the testator owes a duty.
Separately, I would add that it is very unclear to me how the rights of a deceased person can be invoked. The purpose of the application under s. 194 is to determine, now that the deceased is no longer with us, how the assets formerly owned by him are to be distributed, having regard to his possible obligations to have provided for the applicant (if she succeeds in showing that she is in fact a “ qualified cohabitant”) in his will.
Insofar as reliance is placed on the rights of the ultimate beneficiaries of the deceased, only on death does the will of a deceased take effect. Up to that point, there is no vested right in any possible beneficiary and the mere drafting of a will does not even give rise to a contingent right, as wills can be...
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