D.C. -v- D.R., [2015] IEHC 309 (2015)

Docket Number:2014 10022 P & 2015 2 SP
Party Name:D.C., D.R.

THE HIGH COURT [2014 No. 10022 P.]




THE HIGH COURT [2015 No.2 S.P.]





JUDGMENT of Ms. Justice Baker delivered on the 5th day of May, 2015

  1. Section 194(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (the “Act of 2010”) for the first time in Irish law makes possible an application by a person who claims to have been in an intimate cohabiting relationship that financial provision be made out of the estate of a deceased cohabitant. The plaintiff claims to have been in an intimate cohabiting relationship with JC who died intestate on the 7th August, 2014, and now seeks that provision be made for him from her estate. The defendant is the personal representative in the estate of the said J.C., having extracted letters of administration intestate in her estate on the 3rd December, 2014.

  2. The case raises a number of questions of law and fact, and the defendant denies that the plaintiff was a cohabitant of his late sister, and further denies that if is found that the plaintiff was a cohabitant that it is proper that provision ought to be made for him from the estate.

  3. The proceedings were consolidated by order made on the 2nd February, 2015 with other proceedings, 2014 No. 10022 P., brought by the estate against this plaintiff and it was accepted that the cohabitation proceedings would be heard and determined first.

  4. At the inception of the hearing I made an order under s. 199 of the Act that proceedings be heard in camera and that nothing would be published that might identify the parties.

  5. I am told by counsel that the area is effectively free of authority and no written or ex tempore judgment of any of the Superior Courts exists that might guide my deliberations and whilst it seems likely that the legislation has been considered in the Circuit Court no judgment of that Court was offered to assist. For that reason the judgment is perhaps longer than I might have hoped, and some degree of repetition has crept into my considerations of the legislative factors.


  6. The plaintiff is 64 and is a farmer and horse trainer. He was party to a previous marriage which was annulled and he has no children by that relationship or by any other marriage or relationship. The deceased J.C. never married and had no children, and was 69 when she died. The couple met in and around the year 1994 when the plaintiff first assisted the deceased in the training of her ponies and in the preparation of the ponies for show. At that stage the deceased was living with her mother in her former family home in a town in the south of Ireland. The evidence of the plaintiff is that he and the deceased became intimate in 1995 and the relationship became a committed one when the mother of the deceased died in 1996. His evidence was that between then and 2004 when his own mother died he spent two or three nights a week with the deceased at her home at K House, a detached house some miles from a market town in the south of Ireland. On the day his own mother died in 2004 he moved to the house at K and has resided there since. He says that his move was in the context of an intimate and committed relationship which continued until J.C. died of cancer in August 2014.

  7. The couple shared an interest in horses, and specifically in the training and showing of ponies, and the plaintiff was acknowledged as being an excellent horse trainer with expertise in this particular niche area. The respondent and his two brothers do not deny that the plaintiff played a part in the life of their deceased sister but it is denied that they were ever sexually intimate and they assert that the relationship was one of close friendship.

  8. In 1982 the plaintiff took an inter vivos transfer from his mother of lands comprising 112 acres or thereabouts situate in a townland not far from the home of the deceased. The brother of the plaintiff at that time or some time thereafter received a gift from his mother of the old family homestead, where he still lives, and an adjoining field.

  9. The plaintiff derives a relatively small income from his horse training activities and from his farming, and the plaintiff has no interest in any dwelling house nor has at any time since his own mother died rented or been a tenant in any residential premises.

  10. The deceased inherited substantial lands from their mother when she died in 1996 and these lands were rezoned as a result of which they came to have a very significant value. Lands were sold in and around the year 2005 as a result of which the deceased realised the net sum after tax of €3.1 million. The plaintiff says that this had the effect that their lifestyle as a couple changed to some extent, and that they each acquired a larger car, that the deceased spent a large sum of money refurbishing her old family home, and that they enjoyed a good social life, became members of a leisure club, had frequent holidays, had meals out and joined the local golf club.

  11. In 2009 the deceased was diagnosed with cancer but she recovered. However, in late 2013 the cancer returned and it soon became clear that her prognosis was poor and that the secondary cancers she had developed were not amenable to a full cure. The deceased spent some time in hospital in the months leading up to her death but she primarily resided at K House, and she died in a hospice some two weeks or thereabouts after she was admitted into its care.

  12. The deceased was 69 at the date of her death and she died intestate leaving her surviving three brothers as her only next of kin entitled to succeed in her estate. She died leaving an estate with an approximate value of €1.4 million, comprising the former family home of the C family at K House, two rental properties in the same housing estate in a local town, fourteen acres of land close to K House, and personal chattels.

  13. The applicant claims to have been a cohabitant of the deceased and seeks that provision be made for him out of her estate pursuant to s. 194 of the Act of 2010. Under s.172(1) a cohabitant is defined as:

    “one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.”

  14. Section 172(5) provides that the Act applies only to relationships of five years or more, unless the couple had children:

    “(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

    1. of 5 years or more, in any other case.”

  15. A claim may be made provided the relationship had not ended two years or more before the death of the other, save where the payments from the deceased were being made either under court order or agreement.

  16. The power of the court to make provision for the applicant is contained in s. 194 (3) and this provides as follows:-

    “The court may by order make the provision for the applicant that the court considers appropriate having regard to the rights of any other person having an interest in the matter, if the court is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased for any reason other than conduct by the applicant that, in the opinion of the court, it would in all the circumstances be unjust to disregard.”

  17. The court must have regard to the rights of any other person having an interest in the estate and may make a provision for a qualified cohabitant provided it is satisfied that proper provision was not made for him or her during the lifetime of the deceased. The court is also entitled to refuse to make an order if it would in all the circumstances be unjust to disregard certain conduct of the applicant.

  18. It is noteworthy that there is no requirement in the legislation that an applicant seeking relief under the section show that he or she was financially dependent on the deceased.

  19. There is no legislative constraint on the provision that may be made by the court, save s. 194 (7) which provides that a court may not by order under the section award to an applicant more than that amount to which that person would have been entitled had he or she been a spouse or a civil partner of the deceased. Section 197 of the Act provides that each of the qualified cohabitants and ipso facto the personal representative of a deceased cohabitant, shall give to the other particulars of his or her property or income that may be reasonably required for the purposes of the proceedings. The court must accordingly look not merely to the value of an estate but also to the other income and financial resources of an applicant who seeks provision.

    The evidence of cohabitation

  20. A claimant under the legislative scheme must be a qualified cohabitant as defined in the Act. The fact of cohabitation is denied.

  21. The legislation requires that a cohabiting relationship be more than one of mere friendship but involved or had involved sexual intimacy. The legislation defines a “cohabitant” in s. 172, and although I will come back later to the definition, at this juncture I merely pause to note that the relationship must be shown to be intimate and committed, although a relationship does not cease to be an intimate relationship for the purposes of the relationship merely on account of the fact that it was no longer sexual in nature.

  22. The evidence of the plaintiff was that the relationship between himself and the...

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