The Civil Partnership and Certain Rights and Obligations of Cohabitants

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 came into effect on 1 January 2011. Civil partnership is available to same sex couples from that date. As in the case of marriage, 3 months notice must be given of the intention to enter a civil partnership, so the first wave of civil partnership registrations in Ireland will start occurring in April 2011.

The State, since 1 January 2011, already recognises civil partnerships which have been entered into in any of a list of 27 overseas territories. This means that that there are already existing civil partnerships in place in Ireland.

Key Issues

Section 99 of the Act provides that:                                                                                                                                                             “A benefit under a pension scheme that is provided for the spouse of a person is deemed to provide equally for the civil partner of a person.”

Spouse’s death in service and death in retirement pensions now also have to be provided for civil partners. All provisions which refer to benefits being lost on remarriage or cohabitation now equally apply to civil partnership.  In theory, no change is required to a scheme’s rules arising out of this change as the legislation overrides the legal documents. As best practice, however rules should always reflect the actual situation under a pension scheme.  The situation is not so simple in regard to children’s pensions. If there are children in a civil partnership then they cannot be the children of both partners. This is because it is not possible, in Ireland, to adopt a child into a civil partnership.

If the children are the biological children of the member and the member dies then children’s pensions are payable. However if the children are the biological children of the non-member civil partner then no children’s pensions are payable. This was the case before the passing of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and it remains the case after the passing of the Act.

Pension Adjustment Orders

Civil Partners are entitled to seek Pension Adjustment Orders in the event of a breakdown in their civil partnership on exactly the same basis as married members. This right is now also available to “Cohabitants”.
A “Cohabitant” is “one of 2 adults (whether of the same or 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 court would consider many aspects in deciding if 2 adults are cohabitants including: the length of the relationship; the basis on which the couple live together, the degree of financial interdependence, whether there are dependent children, the degree to which they present themselves to others as a couple etc. There is no doubt that a considerable amount of case law will develop around the court’s interpretation of the definition of “cohabitant”. Many couples in long term relationships choose not to get married for various reasons. Many of them may be surprised to discover that having a long term unmarried relationship may lead to significant financial implications on break-up.

Communications Issues

Pension Scheme booklets, forms, systems and procedures will need to be reviewed and amended where applicable to reflect these changes.

In Conclusion

As trustees, It is important to note the changes and the potential implications for your scheme provisions both in relation to the payment of benefits and the Pension Adjustment Order implications. While no immediate action maybe required in relation to introducing the changes, pension scheme administrators should take steps to ensure their administration records reflect relevant civil partnership information and that plans are put in place to update scheme communications in due course.