'Til death do us part? : Cohabitees and the law

AuthorBarry Sheehan
PositionB.C.L, LL.B. (NUI), D.F.J. (CCIP), Solicitor
Ireland, at present, has no legislation regulating the
legal position of heterosexual couples who decide to live
together outside of wedlock. The deficiencies inherent in the
existing common law approach leads to injustice and unfairly
prejudices unmarried couples. A number of Australian States
have introduced specific legislation to address some of the
issues presented by non-marital relationships. In Part II of
this article, these statutory schemes will be critically assessed
in light of the proposal for enacting similar legislation in this
jurisdiction to address an issue which is no longer a source of
“grave embarrassment”.1
The issues raised by homosexual partnerships are
outside the scope of this work. While it is illogical to draw a
distinction on the basis of sexuality of those who cohabit, it is
the division of roles2 characterising heterosexual
relationships which is a major cause of women’s inequality
before the law. Any attempt to regulate same sex
relationships should be achieved by means of separate
2002] Cohabitees and the Law 190
2Typically, the woman works in the home and looks after the family
while the man assumes the role of ‘breadwinner’ by working outside the
1W. O’R. v. E.H. & An Bord Uchtála [1996] 2 I.R. 248 at 286 per
Murphy J.
0 B.C.L, LL.B. (NUI), D.F.J. (CCIP), Solicitor. The author wishes to
acknowledge Dr. John Mee of the Law Faculty, University College Cork.
This is an updated version of an article which orginally appeared in the
Irish Journal of Family Law 2000 (4), pp. 23-27 and 2001 (1) pp. 12-22,
and is reprinted with the kind permission of Round Hall Sweet and
legislation. This is because political resistance towards an
activity only recently decriminalised3 would hamper any
attempt to make provision with respect to all categories of
cohabitees.4 It is submitted that it is preferable to achieve law
reforms which improve the situation of non-marital
heterosexual partners than to accomplish nothing because
politicians will not vote for legislation which includes
provision for homosexual partners.
Notwithstanding the international trepidation
regarding the issue of same sex relationships, many nations
and several provincial and municipal governments around the
world have enacted legislation to protect sexual minorities
against discrimination in employment, housing, access to
services, and other areas of public life.5
A. Origins of the Common Law Approach
Due to the close personal relationship that exists
between married and unmarried couples the thorny issue of
separate property entitlements is seldom addressed prior to a
breakdown in the relationship. Up until 19896 there was no
191 Judicial Studies Institute Journal [2:2
6Under the Judicial Separation and Family Law Reform Act, 1989 (as
5Denmark (including Greenland), Norway, Sweden, The Netherlands,
Hungary and Iceland have been the most proactive of these countries,
enacting nation-wide legislation aimed at reducing discrimination in
relation to homosexual marriage, however, some forms of discrimination
still remain codified in the laws of these countries. For further
information on same sex legislation and the concept of registered
partnership see the International Gay and Lesbian Resource Centre at
4The international divisiveness of this political issue is illustrated by the
recent controversy in France caused by the proposed enactment of same
sex legislation. Le Pacte Civil de Solidarité (Civil Pact of Solidarity) was
a draft law sponsored by the Socialist Party and offered a form of legal
marriage to homosexual couples. Immigration, inheritance, and taxation
benefits are included. Adoption rights, however, are not. The first reading
of the bill failed in October 1998. For discussion, see Le Monde at
3 The ‘offence’ of engaging in homosexual activity was repealed by the
Criminal Law (Sexual Offences) Act, 1993.
statutory power to enable a court to adjust property
entitlements in the event of marital breakdown so Irish courts
turned to the general law, and in particular to equity, for a
cure. The solution proffered was an adapted model of the
purchase money or presumed resulting trust. Under this
doctrine the law presumes the unexpressed intention of the
settlor to be that the beneficial interest in the property in
question should result back to him, or if he is dead, to those
entitled to his estate.7 In the absence of rebutting evidence, a
presumption of resulting trust will arise when two parties
contribute to the purchase of property. The share gained by
each is dependent upon the level of their respective
contributions. The doctrine demands that either one or the
other of the parties contribute with the intention of getting a
share in the property so that such a trust will not arise in
relation to gifts or loans.
It occurred to equity that, given the nature of some
relationships, it would not always be sensible to presume a
resulting trust. Accordingly, the presumption of advancement
grew up to presume a gift where contributions are made by a
father to his child or by a husband to his wife but not vice
versa.8 The rationale here was that a child was considered to
be in a position of dependency and when later extended to
encompass a wife the same analogy was used.9 The House of
2002] Cohabitees and the Law 192
9Symptomatic of this patriarchal attitude to the law, a court will, in the
8While traditionally the presumption does not operate in respect of a
married mother and child, it is probable, in light of the constitutional right
to equality before the law under Article 40, that a court would find the
presumption to arise in such circumstances. It is clear though that
advancement will be presumed in the case of a person acting in loco
parentis, regardless of gender. See Delany, Equity and the Law of Trusts
in Ireland (2nd ed., 1999), pp. 160-175.
7For discussion of resulting trusts see Delany, Equity and the Law of
Trusts in Ireland (2nd ed., 1999), p. 133 et seq.
amended by the Family Law Act, 1995) upon the granting of a decree of
judicial separation the court is given a discretion (to be exercised in
accordance with statutorily prescribed criteria) to make a wide range of
property adjustment orders.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT