Whilst the registered partnership approach used in France is popular in continental Europe it would not be a satisfactory solution in this context because it would only protect those in relationships that had been registered. It would not protect vulnerable parties in relationships where the dominant partner objected to formal recognition of such. Despite the approach in Manitoba, the trend being set in Australia, New Zealand and Barbados is to leave maintenance orders within the exclusive domain of marriage.
These jurisdictions instead enable the court to take into account all relevant factors to redistribute the property in the interests of fairness. The latter approach would be workable in Ireland and would accord with Shatter's opinion that there is no valid reason for not extending the Family Law Act 1995 s 36 36(providing for court resolution of property disputes between spouses on judicial separation) to the area of cohabitee property disputes. 37 Whilst the Scottish Law Commission favour the award of a capital sum, such may not be the best solution for the non-owning cohabitant who has care of children of the relationship.
In such circumstances property redistribution would be desirable. Whilst the Northern Ireland Committee recommends giving the court power only to declare joint tenancy or determine beneficial interests, it is certainly arguable that if this area is going to be reformed by legislation, equitable rights should be discarded. When deciding who should qualify as a cohabitant the Scottish proposal of not having a qualifying criteria must be rejected to guard against undeserving redistribution of property rights.
There is a case to be made that the 5 year period operative in Barbados would be preferable to the 2 years required in New South Wales38 as it would guard against undeserving redistributions of property rights. However the court would be subject to the overriding requirement of fairness in the proposed legislation and therefore a shorter time limit is desirable. Owusu considers a 5 year limitation is too rigid, defeating the legislative objective. He suggests that a shorter period may give rise to a reasonable expectation of property rights.
The exceptions to the 2 year qualification in New South Wales seem rational and therefore desirable in any Irish legislation. However they might be better phrased (1) If the applicant has care of a child, either of the relationship or the respondent (2) If the applicant has made financial contributions that would not be adequately compensated without a court order. The suggestion of the Scottish Law Commission that claims should be made within one year of end of cohabitation would seem attractive in legislation that may come under fire for giving rise to uncertainty.
The Northern Ireland Committee include the proviso that the parties must have been living together 'effectively as husband and wife'40. This would prevent the inclusion of homosexuals unions in the legislation and thereby make implementation more viable in Ireland. Conclusion Irish law may be unfair to a financially weaker cohabitee on separation and has failed to keep pace with changes in society. Despite concluding that legislation in this area need not necessarily undermine the institution of marriage and is required in light of increasing incidences of cohabitation, the mandate for law reform must come from the legislature.
It would arguably be a brave government to give cohabitees greater rights. However in light of the increasing incidence of cohabitation it could be said that the tide is beginning to turn in this regard. The role of this essay has been to recommend legally coherent and workable proposals for reform. In conclusion the 1995 Act provides a suitable model for the redistribution of property rights of cohabitees in the interests of fairness by listing relevant factors.
Whilst the question of which cohabitation relationships should qualify for such a court order is difficult, it has been suggested that 2 years may be suitable in Ireland with some exceptions. A proviso that the parties have been 'living together effectively as husband and wife' would be desirable as would a 1 year limitation period on actions. The flexibility in the proposed legislation is positively desirable because it enables the court to respond fairly to different factual circumstances.
Any uncertainty regarding what the court may grant a cohabitee on separation would be more apparent than real because such would be worked out in relation to the facts of a particular case, which would be available to the parties involved. As has been said in relation to the expansion of equity in this area in the commonwealth, 'There is no doubt that the broader approach…. tends to lead to greater uncertainty and unpredictability… but this may be a necessary consequence of fairness. ' 41. 1 Family Law Act 1995 s 36 with respect to judicial separation; Family Law (Divorce) Act 1996 s 15 with respect to divorce
Family Law Act 1995 s 16(2)(f) with respect to judicial separation; Family Law (Divorce) Act 1996 s 20(2)(f) with respect to divorce 3 This is highlighted by the fact that the Irish Law Reform Commission is currently preparing a Consultation Paper on the issue. 4 A resulting trust is implied by the court in certain situations to return property to the settler in accordance with his/her presumed intention 5 This case law relating to married couples arose before the Family Law Act 1995 and the Family Law (Divorce) Act 1996 and forms the law upon which a financially weaker cohabitee may rely on separation.