Cohabitation

GENERAL
Points of Note
Five criteria for assessing cohabitation.
Co-Residence
Household Relationship
(a) Finances shared.
(b) Duties shared.
Stability
Social
Sexual

SUMMARY

General

The question of whether a couple are cohabiting as husband and wife affects entitlement under the Social Welfare Acts in a number of ways:

A person may be entitled to an increase for a qualified adult for a person who is not a spouse, provided the couple are cohabiting.
A disqualification applies in various schemes where there is cohabitation.
Means are calculated similarly for a cohabiting couple as for a married couple.
In Jobseeker's allowance, Disability allowance and Pre-retirement allowance cases a limitation is applied to payment rates where the person with whom the claimant is cohabiting is also in receipt of certain Social Welfare payments.

For Social Welfare purposes, cohabitation exists where the claimant and another person are living together as husband and wife.

As there is no other definition in law of what constitutes cohabitation, the relationship between the man and the woman must be shown to be the same as that of a husband and wife. As relationships and domestic and financial arrangements between husbands and wives vary considerably each individual case must be considered on its own particular facts.

Points of Note

The following general points should be borne in mind when examining the various aspects of a particular case.

In establishing entitlement to an increase in respect of a partner, the onus is on the claimant to produce satisfactory evidence to show that cohabitation exists. In the other contexts listed above, where an entitlement may be limited or withdrawn, the onus is on the Department to satisfy the Deciding Officer that cohabitation exists.

No single criterion can necessarily support a decision that a couple are living together as husband and wife. It is essential to have as much information as possible on all the criteria before arriving at a decision.
Evidence, or the lack of it, in any criterion may not necessarily be conclusive.
A Voluntary admission of living together as husband and wife is accepted as sufficient evidence where the person makes the admission in the knowledge that his/her own entitlement will be adversely affected by it. Such admission should be obtained in writing, as far as possible in his/her own words, and the statement should be read over to him/her before being signed.
Where such a signed statement is not received, both parties should be interviewed if possible. The second party should also be interviewed where his or her claim to benefit or assistance may be affected, and/or where his or her means are being taken into consideration.

Five criteria for assessing cohabitation.

The elements may be subdivided as follows:

LIVING TOGETHER as husband and wife:

1. CO-RESIDENCE
2. HOUSEHOLD RELATIONSHIP:
- FINANCES SHARED
- DUTIES SHARED

Living together AS HUSBAND AND WIFE:

3. STABILITY
4. SOCIAL
5. SEXUAL

Co-Residence

The first question to examine is whether they reside in a single residential unit.

Is the accommodation a single flat, apartment, caravan or other dwelling place?
If it is a house, is it officially a single household unit? Do the local housing rules permit it to be subdivided into more than one unit?
What type of accommodation is available and how is it shared?
Is the ESB, telephone, etc. covered by a single or separate accounts?
Do either maintain (or live in) another home, or use another address? If so, which place is the effective residence?
(Even if one or both of the couple own or rent alternative accommodation they may still be regarded as living together as husband and wife, particularly where the alternative accommodation is seldom used. Evidence should therefore be obtained in such cases on the ownership/tenancy of the shared accommodation, the ownership of furniture etc.)

(Note - a married couple may also live apart for significant periods of time because of work abroad or elsewhere in Ireland, or because of providing care for relatives, but the marriage relationship remains intact. All the circumstances of each case need to be taken into consideration where similar factors affect a permanent but unmarried relationship.)

Household Relationship

The fact that the couple reside in a common residence is insufficient by itself to determine that they are living together as husband and wife. There also needs to be consideration as to whether they constitute a single household:

(a) Finances shared.

Evidence of a common household fund is an indication of living together as husband and wife. Joint bank accounts used for household expenses would be strong evidence of such a relationship.

The following questions should be considered:

Who owns the property? Was it purchased jointly, and/or is it registered in joint names?
Are both parties named as mortgage holders?
If it is rented property, is it rented in joint names?
Is one party supported by the other?
Is there a pooling of financial resources?
Who pays the household expenses (rent, gas, electricity)?

Where one of the parties claims to be a subtenant or lodger but the amount paid is not realistic, comment should be made as to the average local rate for a lodger to pay for what s/he is receiving by way of accommodation, meals etc.

The absence of a common fund, however, is in itself not conclusive evidence that the couple are not living together as husband and wife, as financial arrangements vary frequently in marriages. An evaluation will be made by the deciding officer as to whether the financial arrangement mirrors a householder- tenant or lodger, a householder- housekeeper, or a husband- wife relationship.

(b) Duties shared.

Where household duties such as those listed below, are done by one partner for the other, or by both for each other, in the same way in which husbands and wives ordinarily perform such tasks then that is further evidence that the couple are living together as husband and wife.

Do the couple share any of the following -

Providing meals and shopping.
Cleaning and laundry.
Caring for each other and members of the household during illness.
Decorating, gardening, washing up.
Caring for the children. Do they share baby-sitting responsibilities?

Stability

Marriage is entered into as a stable relationship and therefore in deciding whether a couple are living together as husband and wife regard should be had to the stability of their relationship.

This may be reflected either in the duration of the relationship, or in the level of commitment to one another.

A couple who have decided to share together for a temporary period only (e.g. an unmarried couple where one party lives elsewhere and is only on holiday in Ireland) are not therefore cohabiting as husband and wife, and one could not claim an increase for the other as a qualified adult.

Is there a financial commitment to a joint mortgage, joint bank accounts, etc.?
Is there a commitment to raise (their) children together?
Do the couple have plans to marry?
What were the circumstances in which they took up residence together? Have they moved from house to house together?
How long have they been residing together?

It must be remembered that it is not only the motive which caused the parties to live together which is important but the facts and circumstances which apply after they have done so.

Social

If a couple are acting socially or representing themselves to others as husband and wife such evidence should be included where it is known.

Do the couple socialise together?
Does the man act as father or the woman act as mother to their/each other's children?
Are they known locally as a couple or as man and wife?
Have they any plans to marry or would they marry if they were free to do so?
Did they represent themselves as a couple in applying for tenancy/mortgage?
Do they use a common surname?
Do they take holidays together?

Sexual

Where a couple have a child or children of their union, there is a strong presumption that they are living together as husband and wife.

Proof of sexual relations is not an essential element of cohabitation between a man and a woman. However, if such relations are admitted this is strong evidence of cohabitation.

SUMMARY

It is not necessary that all the above five elements be present before cohabitation is established but some of the elements must be established. It would be necessary to establish co-residence - that the couple actually or normally reside at the same address - and that some of the other elements are also present.

The questions above are illustrative of the type of questions which may be useful in different situations in trying to determine whether cohabitation exists.