Table of Contents
- 2.1 Points of Note
- 2.2 The criteria for assessing cohabitation
The term 'cohabitant' is defined in the social welfare code in accordance with Section 172 (1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010
Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
For the purposes of this Part, a cohabitant is 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.
The question of whether a couple are cohabiting as husband and wife or civil partners 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 husband, wife or civil partner 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/civil partners.
- 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.
2.1 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 In the other contexts listed above, where an entitlement may be limited or withdrawn, the onus is on the Department to satisfy the Deciding Officer that cohabitation exists.
single criterion can necessarily support a decision that a couple are living together as husband and wife or civil partners. 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.
Voluntary admission of living together as husband and wife or civil partners 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.
2.2 The criteria for assessing cohabitation
- The duration of the relationship;
- The basis on which the couple live together;
- The degree of financial dependence of either adult on the other and any agreements in respect of their finances;
- The degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
- Whether there are one or more dependent children;
- Whether one of the adults cares for and supports the children of the other; and
- The degree to which the adults present themselves to others as a couple.
Duration of the relationship
Marriage/Civil Partnership is entered into as a stable relationship and therefore in deciding whether a couple are living together as husband and wife/civil partners, 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. a couple who are unmarried or not in a civil partnership where one party lives elsewhere and is only on holiday in Ireland) are not therefore cohabiting as husband and wife / civil partners and one could not claim an increase for the other as a qualified adult.
- What has been the length of time that the relationship has existed?
- Do the couple have plans to marry or enter into a civil partnership?
- 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.
The basis on which the couple live together:
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 or civil partners. There also needs to be consideration as to whether they constitute a single household.
- The first question to examine is whether they reside in a single residential unit.
- Is the accommodation a single flat, apartment, house, 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?
- Are household bills such as electricity, oil, gas, telephone, broadband etc. covered by single or separate accounts?
- Do either maintain (or live in) another home, or use another address? If so, which place is the effective residence?
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/civil partners ordinarily perform such tasks then that is further evidence that the couple are living together as husband and wife/civil partners.
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.
Note 1 - 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 or civil partners, 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 2 - a married couple/civil partners 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 relationship remains intact. All the circumstances of each case need to be taken into consideration where similar factors affect a permanent relationship where the couple are not married or in a civil partnership.
The degree of financial dependence of either adult on the other and any agreements in respect of their finances;
Evidence of a common household fund is an indication of living together as husband and wife or civil partners. Joint bank accounts used for household expenses would be strong evidence of such a relationship.
The following questions should be considered:
- Is one party supported by the other?
- Is there a pooling of financial resources?
- Is there a financial commitment to a joint mortgage, joint bank accounts, etc.?
- If it is rented property, is it rented in joint names?
- Who pays the household expenses such as rent, gas, electricity, home telephone, television,broadband?
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/civil partners, as financial arrangements vary frequently in marriages/civil partnerships. 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/civil partnership relationship.
The degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
Who owns the property? Was it purchased jointly, and/or is it registered in joint names?
- Are both parties named as mortgage holders?
- Have the couple jointly purchased or jointly acquired any other land or property?
Whether there are one or more dependent children
- Is there a commitment to raise (their) children together?
Whether one of the adults cares for and supports the children of the other
- How are the children cared for?
- Who attends school/medical/dental appointments for or with the children?
- Are baby-sitting responsibilities shared?
The degree to which the adults present themselves to others as a couple.
If a couple are acting socially or representing themselves to others as husband and wife /civil partners such evidence should be included where it is known.
- Do the couple socialise together?
- Do they act in a parental manner to any children?
- Are they known locally as a couple?
- Have they any plans to marry or enter into a civil partnership or would they marry or enter into a civil partnership 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?
It is not necessary that all the above 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.
Where a heterosexual couple has 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 couple. However, if such relations are admitted this is strong evidence of cohabitation.