The Law Reform Commission's proposals could herald a sea-change in the way relationships between cohabiting couples are regarded in the eyes of the law, writes Carl O'Brien.
When Eamon de Valera and others sat down to draft the Constitution in 1937 it is clear they had just one form of family in mind: a family based on marriage.
Then, 3 per cent of births were outside marriage. Cohabiting couples were a rarity. Today at least one third of children are born outside marriage. There are at least 80,000 cohabiting couples, including 1,300 same-sex couples.
Little of this radical social change is evident in our laws. Family laws are predicated on marriage of opposite sex couples, while cohabiting couples are generally treated much less favourably than spouses in areas ranging from taxation to tenancy rights.
Couples who have been living together for a long time often wrongly assume that they have a degree of legal protection. They don't. The Law Reform Commission's proposals, however, could herald a sea-change in the way relationships between cohabiting couples are regarded in the eyes of the law.
If enacted, they would go some distance towards enhancing the position of couples in areas such as tax, while protecting vulnerable partners in the case of death or the end of a relationship.
The recommendations are aimed at cohabiting couples - straight or gay - who choose not to get married or to avail of the Government's plans for a civil registration scheme.
If a couple has been living together for at least three years, or two years if they have a child, they would be regarded as "qualified cohabitants". This would allow them to seek a range of reliefs such as tax, enhanced succession rights and greater formal recognition in hospital settings. The commission says it would encourage couples to sign a contract, or "cohabitant agreement", under which they would agree co-ownership issues relating to property and assets.
While a cohabiting couple is free to do this at present, there has been some doubt over the validity of these agreements in law. Proposed legislation would remove this uncertainty.
For those who fail to enter into a contract, a redress "safety net" scheme would be triggered. This assumes certain rights and duties to cohabiting couples who have been living together for at least three years, or two years if they have a child. Under this scheme a partner placed in a vulnerable position at the end of a relationship would be able to claim for maintenance payments, a share in property or a share of their partner's pension.
In establishing whether these rights are applicable, a number of aspects would have to be taken into account such as the length of the relationship and the level of financial dependence between the couple.
The proposals would herald major change if implemented, although they fall well short of the privileges marriage can offer. Even greater levels of protection and privileges for cohabiting couples may yet be contained in the Government's plans for a civil partnership system.