A recent High Court ruling illustrated the changing attitude of the law towards the rights of cohabitees, but there remain a large number of anomalies in the area, writes Carol Coulter, Legal Affairs Correspondent
It was an all too common tragedy. A young woman was a back-seat passenger in a car which collided with a truck on the Kildare-Monasterevin Road in September 2003. Both she and the driver of the car were killed. Samantha Quinn was just 29 years old.
The subsequent court action for damages was brought by her father, Francis Quinn, against the late driver, Shaun Playdell, on behalf of all her dependents, including her fiancé, Noel McDonagh. In a reserved judgment delivered last Tuesday, Mr Justice O'Donovan held that €82,000 of the €98,056 awarded in damages for the death of Ms Quinn should go to Mr McDonagh. He said that he had no doubt that of all those who had been close to Samantha, Mr McDonagh was the worst affected by her death.
A fiancé is not a dependent under the Civil Liability Act, and therefore not entitled to compensation for loss in a case of wrongful death. However, the 1961 Act was amended in 1996 to include a person not married to the deceased, but who was living with him or her as husband or wife continuously for a period of not less than three years, and who suffered injury or mental distress as a result of the death. Much of this case concerned a dispute over whether in fact Ms Quinn and Mr McDonagh had been living together as husband and wife for over three years, and Mr Justice O'Donovan found that they had.
In 1997 they had moved into Mr McDonagh's parents' house, in 1999 they rented an apartment together, but six months later they decided they wanted to buy a home together and moved back to the McDonagh family home for a period. They then did buy a house, in which they were living at the time of Ms Quinn's death.
In his judgment, Mr Justice O'Donovan also found that Mr McDonagh had lost the benefit of the services his late fiancée would have provided for him "as a housekeeper, cleaner, cook and general factotum".
As Ms Quinn was working as a receptionist with the Irish Brokers' Association when she was killed, it may be difficult to see how she would have had time to provide services as "housekeeper, cleaner, cook and general factotum". Such remarks are not normally part of a judgment of this kind.
However, according to Prof William Binchy, co-author of the standard textbook on the law of Tort, which deals with injury arising from a wrong, a cohabitee, unlike a spouse, cannot claim damages for loss of "consortium". This, he said, represents the totality of the benefit of the relationship. Spelling out the extent of the loss may, therefore, have helped the judge quantify it in his judgment.
The recognition of the rights of cohabitees in law, while growing, is patchy, according to Prof Binchy. While a person in Mr McDonagh's position can sue for damages under the Civil Liability Act if his or her partner dies, they cannot sue if their partner is seriously injured, and requires maintenance in a hospital or other institution, probably at considerable expense.
This is because such an action would take place under common law, not under statute, according to Prof Binchy. It is just one of the anomalies that arises in the law surrounding cohabitees.
Another major area in which the rights of cohabitees are spelled out by the law concerns domestic violence. Another 1996 Act, the Domestic Violence Act, extended many of the protections afforded the victims of domestic violence to cohabitees and parents, in particular safety orders and protection orders. Under this Act cohabitees are defined as having lived together for six out of the previous 12 months.
Barring orders are also issued under the Domestic Violence Act. However, such an order will not be granted to a person other than a spouse unless the applicant can satisfy the court that she (or he) has an equal or greater interest in the property.
This means that in most cases this remedy is only available where the victim of the violence is the sole owner or tenant. At the time the Bill was introduced, the then Minister for Justice felt it would violate a person's property rights under the Constitution if he or she could be excluded from their own home.
The social welfare code also contains a number of anomalies concerning the rights of cohabitees. Women have traditionally been barred from claiming a variety of social welfare benefits if they were living with a man. Since 1989 social welfare legislation has been drafted to refer to couples, whether married or unmarried, and they have been entitled to similar benefits, apart from marriage-specific benefits like a widow/widower's pension. Cohabitation, like remarriage, acts as a bar to the continuance of certain payments. The Department of Social Welfare has extensive guidelines for the definition of cohabitation.
In contrast, there is no recognition of cohabitation in the taxation law, implying that the State has recognised cohabitation when it has suited it financially to do so. Cohabitation has been the basis for restricting or denying the payment of certain benefits. However, if a dependent cohabitee is recognised for taxation purposes, this would lead to additional tax relief and a reduction in the State's tax take.