Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010

  1. Definitions:
  2. Civil Partnership
  3. Shared Home
  4. Land Registry Practice on the lodgement of transfer, conveyance, charges etc.
  5. Registration of a Lis Pendens
  6. Registration of a statement that a deed is void.
  7. Registration of Notice of existence of Civil Partnership
  8. Stamp Duty on the creation of Joint tenancy in the shared home
  9. Property Adjustment Orders
  10. Court Orders
  11. Prohibition Notes under Section 59(2) of the Registration of Title Act, 1964

Shared Home Protection pursuant to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (“the Act”) was signed into law on the 19th July 2010 and came into operation on the 1st January 2011 (S.I. No. 648/2010).

The Act contains two distinct sections dealing with both (1) the civil registration of same-sex partnerships and (2) the rights and duties of cohabitants.

1. Definitions:

The definitions are stated in Part (1) of the Act and include as follows;

Section 2:
“civil partnership registration” means registration of a civil partnership under section 59D (as inserted by Section 16 of this act) of the Civil Registration Act, 2004.

Section 3:
For the purposes of this Act a civil partner is either of two persons of the same sex who are:

(a) parties to a civil partnership registration that has not been dissolved or the subject of a decree of nullity, or

(b) parties to a legal relationship of a class that is the subject of an order made under section 5 that has not been dissolved or the subject of a decree of nullity.

2. Civil Partnership

The Act establishes a statutory Civil Partnership registration scheme for same sex partners, together with a range of rights and obligations consequent on registration i.e. including maintenance, protection of shared homes, succession and pensions. The Act also sets out the manner in which Civil Partnerships may be dissolved. Broadly speaking, the Act confers rights and duties on registration on civil partners similar to that of spouses in family, property and succession law. The Act also provides for dissolution and nullity.

Section 4 confers a power on the court to make a declaration as to the status of a civil partnership. Section 5 allows the Minister for Justice and Equality to recognise classes of “legal relationships” registered outside the State as civil partnerships under certain criteria for the recognition of foreign legal relationships by Order. Section 16 by the insertion of a new section after Section 59 into the Civil Registration Act, 2004 and sets out the formalities for registration of a civil partnership which is similar to registration of a marriage (i.e. three months notice of intended registration, to take place at an approved venue by a Registrar, the parties must not already be in a civil partnership or married, parties must be over 18 and cannot be within the prohibited degrees of relationship).

3. Shared Home

Shared home protection is provided for in Part 4 of the Act and shared home is defined in Section 27 of the Act, as:

(a) subject to paragraph (b) a dwelling in which the civil partners ordinarily reside; and

(b) in relation to a civil partner whose protection is in issue, the dwelling in which that civil partner ordinarily resides or, if he or she has left the other partner, in which he or she ordinarily resided before leaving.

The provisions and protection of the shared home mirror the protection given to the family home under Family Home Protection Act 1976 as amended, and prevents the sale or any conveyance of a shared home by one civil partner in the absence of consent of the other (unless a contractual agreement in relation to the property had been made prior to registration of the civil partnership Section 28 (2) of the Act).

Under Section 28 of the Act, any alienation of the shared home in the absence of consent subject to subsections (2),(3) and (8) to (14) is void. This mirrors the position in S 3(1)of the Family Home Protection Act, 1976. That section was mitigated by Section 54(1)(b) of the Family Law Act, 1995 and this Act has similar provisions under Sections 28 (8) to (14).

Section 28 (11) states :

A conveyance is deemed not to be and never to have been void by reason of sub-section (1) unless-

a) it has been declared void by a court by reason of sub-section (1) in proceedings instituted in accordance with sub-section (8) on or after the date on which this section commences, or,

b) subject to the rights of any other person concerned, it is void by reason of sub-section (1) and the parties to the conveyance or their successors in title so state in writing before the expiration of 6 years from the date of the conveyance.

The proceedings to have the conveyance declared void must be instituted before the expiration of six years from the date of the conveyance. The statement of the parties must also be made before the expiration of that period of six years and registration can be affected in the Land Registry or Registry of Deeds, [Section 28 (12) of the Act].

However, [mirroring Section 3 (8) of the Family Home Protection Act 1976 as amended by Section 54 (1)(b) of the Family Law Act, 1995], where the consenting partner has been in actual occupation of the property from immediately before the expiration of six years from the date of the conveyance, there is no time limit as to when he/she can commence proceedings [Section 28 (9) of the Act]. The Land Registry practice therefore mirrors its practice on the “family home” in its application to the “shared home”.

4. Land Registry Practice on the lodgement of transfer, conveyance, charges etc.

A conveyance made as a result of an enforceable agreement (e.g. a mortgage) made prior to registration of the partnership will not be void or voidable [Section 28 (2) of the Act]. Similarly a conveyance made to a bona fide purchaser for value without notice will not be void or voidable [Section 28 (3) (a)] or if it is made by a person other than the civil partner to a purchaser for value [Section 28 (3)(b) of the Act] or its validity depends on the validity of a conveyance in respect of which a condition mentioned in subsection (2) or paragraph (a) or (b) is satisfied {Section 28 (3)(c)].

The purchaser’s solicitor is primarily responsible for compliance with the Act and has the necessary means of knowledge and opportunity to ensure compliance. A purchaser has a duty to make full enquiries on the matter. See practice direction on the Family Home Protection Act, wherein it states that a purchaser has a duty to make full enquiries on the matter (Somers v. Weir [1979] I.R., 11 ILTSJ p.81) It had been held , per Gannon J. that ‘the provisions of section 31(1) of the Registration of Title Act 1964 (establishing the conclusiveness of the register) afford a sufficient protection of the vendor and the intending purchaser in relation to all prior transactions affecting the registered ownership as appearing on title’ (Guckian v. Brennan [1981 IR 478]).

The Court also held that ‘the duty of ensuring that any instrument of transfer is valid and effective, so as to enable a transmission of ownership to be duly registered, falls upon the Registrar at the time of the registration’. All that would be required in relation to shared home protection under the Act, is that the Authority be satisfied that no proceedings have been commenced, and no statement made, such as referred to in [Section 28 (12) of the Act], in respect of the conveyance lodged for registration.

In the case of a mortgage application it is the responsibility of the lending institution to ensure that the rights of any spouse in actual occupation of the property have been safeguarded.

Before registration the following matters should be checked:

  1. That there is no entry on Part III of the folio as to a statement of invalidity [under Section 28 (12) of the Act], by the parties to the deed, and no such dealing pending.
  2. That there is no Lis Pendens on the folio [under Section 28 (13) of the Act], and no such dealing pending;

If an entry relating to either of the above matters appears on the folio the matter is to be drawn to the attention of the lodging solicitor and registration stayed. Otherwise, no consents, statutory declarations or certificates need be requested, and if lodged these will be returned to the lodging party and will not be filed with the Instrument.

5. Registration of a Lis Pendens

Where proceedings have been instituted to have a deed declared void by reason of the absence of prior consent, a lis pendens shall be lodged in the Land Registry. It may be registered if it complies with Rule 119 of the Land Registration Rules 2012 and Forms 64 and 65 (See Section 69(1)(1) of the Registration of Title Act, 1964).

6. Registration of a statement that a deed is void.

The parties to a deed that did not have a partner’s consent can declare it void [under Section 28 (12) of the Act]. The statement must be in writing, within 6 years of the date of the deed, and must, in the case of registered property, be lodged in the Land Registry for registration as a burden within the meaning of section 69 of the Registration of Title Act 1964.
A copy of the statement certified by the persons concerned, or their successors in title, to be a true copy, will suffice. The existence of the statement may be registered as a burden on Part 3 of the folio in the following manner:

“A statement dated ………. made between ……… and …………. pursuant to Section 28 (12) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010.”

The ownership, or other registration arising from the deed in question is not to be cancelled at this stage since the rights of other persons concerned are protected by the legislation.

7. Registration of Notice of existence of Civil Partnership

Under section 36 of the Act, a civil partner may apply to the Authority for the entry in the Register of a notice that he or she is the civil partner of a person having an interest in the property or land. A notice can be registered in the Land Registry/Registry of Deeds as appropriate [Section 36(2)], free from stamp duty and fees [Section 36 (3)]. An Affidavit or Declaration should be called for identifying the property of the owner-spouse and the interest such owner has in it and proving the registration of the civil partnership.

Notice is to be served on the registered owner and the owner-partner, if a different person, after registration. The entry on the register (Part 2) should be in the following form:

“Date of lodgement: Notice pursuant to Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010:

AB (Applicant) is the civil partner of CD, the registered owner or a person having an interest in the property.”

On lodgement of a disposition of the property subject to such an entry, notice is to be served on the party who entered same and any objection considered on its merits.

8. Stamp Duty on the creation of Joint tenancy in the shared home

No land registration fee, Registry of Deeds fee or court fee shall be payable on any transaction creating a joint tenancy between civil partners in respect of a shared home where the home was immediately prior to such transaction owned by either civil partner or by both civil partners otherwise than as joint tenants.[Section 38 of the Act].

9. Property Adjustment Orders

The Act provides for the registration of property adjustment orders. Section 118 of the Act refers and also provides cancellation of any such burden under Section 118(5). It also provides for variation of orders under section 131(9) and 131(10). In respect of civil partnership, the Orders may provide for the variation, reduction or extinguishment of the respective interests of the spouses in the marital property. However, it is important to distinguish between the Orders themselves and transfers or conveyances made pursuant to them.

The only registration we can make on lodgement of the Order itself is as a burden under section 69(1)(h) of the ROT 1964. Section 118 (4) of the Act confirms this approach and provides that a copy of the Order (certified to be a true copy by the registrar or clerk of the court concerned) must be lodged in the Registry for registration as a burden (or Registry of Deeds as appropriate). The burden should be registered in the following manner:

An order of the __________ Court dated _____________ in the matter of Section ____ of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 and in the matter of _____________ v. _______________.

A transfer executed as result of the Order may be registered in the usual way if it is by the owner partner. If the transfer is by some other person, e.g. a Court officer, it may be registered provided it is in conformity with the terms of the Order.

10. Court Orders

There is also provision for an order for sale of the property under Section 128 or for determination of questions between civil partners in relation to property under Section 106 or for any order the court might deem appropriate if there is potential loss of the shared home arsing from the conduct of a civil partner under Section 30.

11. Prohibition Notes under Section 59(2) of the Registration of Title Act, 1964

This section obliges the Registrar to note statutory restrictions and prohibitions (e.g. as under the Land Acts) on the register. The section does not apply to the Act, however, and it is so provided under Section 37. In other words the Authority has no duty to make any prohibition note or other entry on the Register in relation to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010.

Note: The above refers to registered civil partnership and not to the provisions of the Act relating to cohabitation agreements.

Cohabitation Agreements:

Part 15 of the Act is a separate section dealing with the rights and duties of cohabiting couples.

The Act established a redress scheme for opposite sex and same sex couples (who are not married or in a civil partnership) which will enable an economically dependant party at the end of a long term cohabiting relationship on death or otherwise, where that party is a “qualified cohabitant”, to apply to court for redress in the form of certain reliefs, such as maintenance, property or pension adjustment orders and/or provision from the estate of a deceased cohabitant.

The redress or safety net system is for “qualified cohabitants”, i.e. a couple either same sex or opposite sex who have been in a committed and intimate relationship for a period of five years, or two years where there is a child or children of the relationship. Where one of the parties dies, or the relationship breaks down, the other party has the right to apply to court for a range of ancillary reliefs (including property adjustment, pension adjustment, maintenance, provision from the estate of deceased cohabitant) within a two year period. The Act also provides for recognition of Cohabitation Agreements enabling cohabitants to regulate their joint financial affairs or to specifically opt out of the redress scheme.

Note: Any court orders arising on cohabitation agreements are burdens under Section 69(1)(h) of the Registration of Title Act 1964.

Frank Treacy
Deputy Registrar
May 2011
Updated:
01 February 2013
13 September 2017
22 May 2018