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Ireland

Irish family and succession law regulate three models of couple's relationship:

  • MARRIAGE between persons of same or opposite sex

  • CIVIL PARTNERSHIP between persons of same or opposite sex

Marriage is recognised by the Constitution. Pursuant to Art. 41 of the Constitution, the family is based on marriage, which may be also contracted in accordance with law by two persons without distinction as to their sex. Civil partnership is recognised in accordance with section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (2010 Act) and pursuant to the Civil Partnership (Recognition of Registered Foreign Relationships) Order 2010.

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DISCRIMINATORY RULES

Marriage and registered partnership are allowed for both, opposite and same-sex couples. However, there are still some differences between the legal regulation of the two types of family formations. The duties arising out of a marriage and a registered partnership are largely aligned, but not identical (i.e. the way to obtain the divorce and the way to obtain the dissolution of a registered partnership).

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Links to applicable regulations

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MARRIAGE

  • The principle of community of property does not apply under Irish law and property held by each of the spouses prior to the marriage or acquired by one spouse in the course of the marriage remains the property of that spouse. The principle of community of property is not applicable. Furthermore, the spouses do not have a choice of matrimonial property regimes. 

In the course of a valid subsisting marriage, each spouse is in charge of the administration of his/her property and does not typically require the consent of the other spouse for the administration or disposal of that property. In Irish legal system, there are no community debts for the spouse. Each spouse is responsible for their own debts incurred in the course of the marriage, unless agreements provide otherwise.

Marital agreements are admitted. All marital agreements are made in light of the governing provisions, and cannot be regarded as absolutely binding upon the parties as they remain subject to the approval of/amendment by the Irish courts. Typically they will not be enforced if they do not secure proper provision for the parties and/or where it is in the interest of justice not to enforce the terms agreed.Marital agreements must be formally executed in the form of a deed and signed by both parties. They can be approved by the courts as a consent order, giving the agreement the status and effect of a court order. Where a marital agreement is made an order of court, its enforcement is then subject to the normal rules and expectations of compliance with court orders. The enforcement of the terms of an agreement not made an order of court is subject to the rules and enforcement mechanisms of contract law.

  • The principle of separation of property applies until separation or divorce. Upon both separation and divorce, the division and distribution of the property held solely or jointly by the parties is subject to the overriding requirement that proper provision must be made for the spouses and any dependent children (section 3(2)(a) Judicial Separation and Family Law Reform Act 1989 and section 5 Family Law (Divorce) Act 1996) and also to the statutory requirement that all ancillary relief orders made must be in the interest of justice section 16(5) Family Law Act 1995 and section 20(5) Family Law (Divorce) Act 1996) and subject to the court having regard to the 12 statutory factors set out in section 16(2)(a)-(l) Family Law Act 1995 and section 20(2)(a)-(l) Family Law (Divorce) Act 1996. Thus a spouse’s share in property is determined on a subjective basis by the presiding judge in each case, with reference generally to the circumstances of the marriage, including, but not limited to, an examination of the impact of the roles adopted by the spouses in the course of the marriage, any sacrifices and/or contributions made by one or both of the spouses and their current and future earning capacity. In lower income cases, the courts are typically most concerned with providing for the basic needs of the dependent spouse and children and this will include securing a home for these parties. However the courts are not limited to simply providing for the needs of the dependent spouse and thus in ample resources cases, a trend of awarding one third of the assets to the non- earning or less wealthy spouse has emerged in the courts. As regards fault, unless the fault on the part of one of the spouses is regarded as “gross and obvious” it will not influence the division of property.

  • In the event of the death of the spouse (Succession Act 1965), if he or she made a will, the law reserves to the surviving spouse a minimum one-third share of the deceased spouse’s estate. If there are no children born to the deceased spouse, the surviving spouse is entitled to one-half of the estate.

If a parent dies intestate, which is without having made a will (or the will is invalid), the surviving spouse is entitled to two-thirds of the estate whit the remainder being distributed equally amongst the children of the deceased. If there is no surviving spouse, the children divide the estate equally.

 

CIVIL PARTNERSHIPS

  • The property regime of the civil union follows what provided for marriage. After 2015, in Ireland the civil partners are treated in the same way as married couples under the tax and social welfare codes. In addition, the protections afforded to married couples under the family law legislation regarding property disputes are afforded to unmarried couples who cohabit or are in civil partnerships.

  • In the event of death of a partner of a civil partnerships, the discipline of testate and intestate succession established for the surviving spouse shall apply to the surviving partner of a civil partnership.

According to the Succession Act 1965, in fact, the succession rights can be renounced voluntarily by either or both spouses/civil partners in a separation agreement. In granting a decree of judicial separation, a court can extinguish a spouse’s succession rights if it is satisfied that adequate provision exists for the spouse whose rights are being extinguished (instead, once a decree of divorce/dissolution is granted, the parties are no longer married or in a civil partnership, and succession rights are automatically extinguished).

Based on the national report prepared by Elisa Sgubin