High Court dismisses appeal for cohabitant provision under 2010 Act due to short relationship duration and lack of financial disparity.

APPROVED

REDACTED

FOR PUBLICATION

[2025] IEHC 737

THE HIGH COURT

CIRCUIT APPEAL

FAMILY LAW

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT, 2010

Record No. 2025/27 CAF

BETWEEN:

C.D.

APPLICANT

AND

E.F.

RESPONDENT

Judgment of Ms. Justice Nuala Jackson delivered on the 11th December 2025:

INTRODUCTION

1. The parties to these proceedings have both suffered a very considerable tragedy.

Although the proceedings appear to have had a very tortuous procedural history (to which I will make further reference below) and time has passed, it is nevertheless evident that both sides retain a keen and understandable sense of loss. The Applicant (CD) (the Respondent in the appeal) was the partner of AB. EF (Appellant in the appeal) is the parent of AB, now his personal representative also. The tragic accident which led to AB’s death has undoubtedly had a fundamental impact on the lives of both parties and also on the lives of other family members. It is truly unfortunate that litigation has had to add a layer of acrimony to tragedy.

FACTUAL BACKGROUND

2. There is little dispute about the factual background. CD was born outside Ireland and lived in that other country for his childhood and early adulthood but has resided in Ireland for many years and is an Irish national. He met AB in or about 2008 and a relationship developed which continued until the death of AB. The parties lived together from approximately two months after they met. CD is now 45 years of age and AB would be just a little younger, had he lived. AB died in 2014. Not surprisingly given the young age and sudden death of AB, he died intestate. Being unmarried and without children, with surviving parents, under Irish law, his estate passes to his parents equally subject to the outcome of this litigation. CD seeks that provision be made for him from the estate of AB pursuant to section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (“the 2010 Act”).

HISTORY OF RELATIONSHIP

3. There was little evidential controversy in this regard. AB and CD lived together in a variety of locations in Ireland, in rented accommodation, before AB purchased an apartment. The relationship was a happy one and there was positive engagement between the couple and AB’s family in that context. AB and CD visited AB’s parents for cultural and family celebrations and did so as a couple. There was discussion of marriage, both as between the couple and with third parties (evidence was received from two such third parties). As same sex marriage was not possible in Ireland at the time, these discussions involved marriage abroad, with Spain and Italy being considered. A list of potential wedding guests prepared by AB was introduced. The evidence was that marriage plans had been discussed with members of AB’s family although it was unclear if there had been such discussions with EF. While the purchase of the property was a joint endeavour, it was primarily funded by AB and the mortgage was solely in AB’s name. The evidence of CD was that a joint mortgage was discussed but his immigration and financial status made the process easier if they proceeded with AB as the sole borrower. An email from AB to a third party was introduced to confirm this which stated:

“…I’ve been advised that I might need to get a will etc sorted as I am the one buying the apartment because my partner is not an EU citizen and ineligible for affordable housing and also, quite counterintuitively, a joint mortgage would reduce the borrowable amount, so it has to be just me.”

The parties selected the property together and they moved in in October 2010. CD continues to reside in this property. AB and CD operated a joint account for day-today expenses and household expenses, including the mortgage, utilities and property management charges, were discharged from this account. Both contributed to this account, but CD acknowledged that AB made a larger contribution as he earned more.

He indicated that AB was good with financial management, and this seemed to be a responsibility assumed by him within the relationship. The evidence of CD was that at the time of the property purchase the parties were advised about making wills, but this was not done. I find nothing unusual in this given that they were young and busily attending to affairs of life rather than affairs of death. CD’s evidence was that they were a young couple, both working and they enjoyed travelling together.

4. AB was in professional employment. CD worked in retail and has been in the same employment for a considerable number of years. He has obtained qualifications relevant to this employment during the course of it. In more recent years, CD has worked on a part time basis and returned to study also. He has supplemented his income by renting out a room in the apartment. His evidence detailed the emotional trauma suffered surrounding the death of his partner and “trying to find a place in the world without [AB]”. CD also referenced the stress occasioned by the subsequent litigation and “not knowing where [he] would be in six months’ time”. His evidence was that it would be very difficult if he had to leave the apartment and that there would be very considerable accommodation challenges. His current circumstances would not enable him to purchase accommodation and high rental costs would be most challenging on his modest income. His evidence was that he would be homeless and would likely have to relocate in this context. A handwritten “to do” list prepared by AB (headed “Plan”) was introduced. This clearly indicated the conjoined lives of the couple and AB’s future planning in this regard. There was also evidence of AB’s support for CD in an immigration context. Evidence was given of a moderate disability suffered by CD which was diagnosed one to two years after the relationship commenced and which is progressive in nature. There are expenses arising in this regard.

5. As the statute requires, CD had sworn an Affidavit of Means. This was entirely consistent with his narrative evidence. Savings had been reduced by legal fees discharged. His income is reflective of his now part time work situation. He does not have a pension. He does not currently have accommodation costs as he is residing in the apartment.

6. His evidence was that he does not have family in Ireland. He sends modest financial support to his family monthly.

7. The cross-examination centred on CD’s self-sufficiency. It would appear that CD had very insecure accommodation when he first came to Ireland, originally staying with a friend without paying rent and subsequently sub-letting, having a sub-optimal experience in this regard. It would appear that CD rented a room (by way of subletting) in AB’s rented property initially, but their relationship quickly progressed to one of cohabitation. Reference was made to his educational qualifications, lack of dependents, current comfortable lifestyle (including holidays) and the duration of his accommodation in the apartment, free of charge. CD disputed that his circumstances are as presented. He stated that the motivation of EF is financial while he seeks to retain his home in a difficult housing market. CD was questioned as to the inconsistency between asserting financial dependence and claiming to have contributed to the mortgage on the property. CD indicated that he was financially dependent in terms of accommodation.

8. CD’s employer gave evidence relating to the relationship of the parties, their plans as expressed to him and CD’s employment. He was cross-examined as to the duration and stability of such employment and as to qualifications which CD had attained in that context.

9. EF’s evidence related to the circumstances of the family of origin. He confirmed that the family had no difficulty with the relationship and that CD was treated well. He evidence impressed as clear, accurate and in no manner overstated. The siblings of AB are all living independent lives, in Ireland or elsewhere. The financial circumstances of AB’s parents are comfortable – they own their home and have rental and pension income. His evidence was that he was unaware of AB’s role in assisting CD with immigration and that he understood the apartment was being purchased by AB.

THE ESTATE

10. The estate of AB consists of:

(a) An apartment in [REDACTED] upon which there was a mortgage in favour of AIB. The current value of this property is in the sum of €440,000 - €460,000.

(b) The proceeds of a life assurance policy amounting to approximately €195,000.

(c) A pension gratuity of approximately €45,000.

(d) Savings of approximately €6,500.

11. The deceased was also the joint account holder with CD of a savings account which accounts had a nominal balance at date of death. It is accepted that such account was placed in joint names in or about 2010.

12. Apart from funeral and testamentary expenses, the only debt of the estate returned in the Inland Revenue Affidavit is the home loan with AIB in the sum of approximately €195,000. The life assurance policy at (b) above was not assigned to AIB but EF applied it, together with some additional savings of AB needed to meet arrears that had accumulated between the date of death and the date of the extraction of the grant, to the home loan which has, in consequence, now been discharged. In consequence, the real property is now unencumbered.

13. Letters of administration issued to the Appellant on the 12th January 2016.

14. The 2010 Act is a complex piece of legislation, and the proofs required thereunder are extensive in order to successfully pursue a claim for relief, whether inter vivos or upon death. In the present instance, two of the most fundamental proofs have been accepted by EF as being satisfied by CD namely it is accepted that the Applicant and AB were in an intimate and committed relationship at the time of AB’s death and that

CD is a “qualified cohabitant” as defined in section 172 of the 2010 Act. It is also accepted by EF that CD and AB planned to marry. While same-sex marriage had not been introduced in Ireland prior to AB’s death, I heard evidence of marriage plans which the parties had discussed, both between each other and with third parties, prior to AB’s death.

THE LAW

15. Section 194 of the 2010 Act provides:

“194.— (1) A qualified cohabitant may, after the death of his or her cohabitant but not more than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant’s estate, apply for an order under this section for provision out of the net estate.

(2) Notwithstanding subsection (1), a qualified cohabitant shall not apply for an order under this section where the relationship concerned ended 2 years or more before the death of the deceased, unless the applicant—

(a) was in receipt of periodical payments from the deceased, whether under an order made under section 175 or pursuant to a cohabitants’ agreement or otherwise,

(b) had, not later than 2 years after that relationship ended, made an application for an order under section 174, 175 or 187 and either—

(i) the proceedings were pending at the time of the death, or

(ii) any such order made by the court had not yet been executed,

or

(c) had, not later than 2 years after the relationship ended, made an application for an order under section 174, 175 or 187 , the order was made, an application under section 173(6) was subsequently made in respect of that order and either—

(i) the proceedings in respect of that application were pending at the time of the death, or

(ii) any such order made by the court under section 173(6) in favour of the qualified cohabitant who is the applicant under this section had not yet been executed.

(3) The court may by order make the provision for the applicant that the court considers appropriate having regard to the rights of any other person having an interest in the matter, if the court is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased for any reason other than conduct by the applicant that, in the opinion of the court, it would in all the circumstances be unjust to disregard.

(4) In considering whether to make an order under this section, the court shall have regard to all the circumstances of the case, including—

(a) an order made under section 173(6), 174 , 175 or 187 in favour of the applicant,

(b) a devise or bequest made by the deceased in favour of the applicant,

(c) the interests of the beneficiaries of the estate, and

(d) the factors set out in section 173(3).

(5) The court shall not make an order under this section where the relationship concerned ended before the death of the deceased and—

(a) the court is not satisfied that the applicant is financially dependent on the deceased within the meaning of section 173(2), or

(b) the applicant has married or registered in a civil partnership, or in a legal relationship of a class that is the subject of an order under section 5.

(6) The applicant shall give notice of an application under this section to the personal representative of the deceased, any spouse or civil partner of the deceased and to any other persons that the court may direct and, in deciding whether to make the order and in determining the provisions of the order, the court shall have regard to any representations made by any of those persons.

(7) The total value for the applicant of the provision made by an order referred to in subsection (4)(a) on the date on which that order was made and an order made under this section shall not exceed any share of the applicant in the estate of the deceased qualified cohabitant to which the applicant would have been entitled if the qualified cohabitants had been spouses or civil partners of each other.

(8) If the qualified cohabitant does not notify the personal representative as required by subsection (6), the personal representative may distribute the assets of the deceased qualified cohabitant or any part of them amongst the persons entitled to them and is not liable to the qualified cohabitant for that distribution.

(9) Nothing in this section prejudices the rights of the qualified cohabitant to follow assets into the hands of a person who has received them.

(10) An order under this section shall not affect the legal right of a surviving spouse.

(11) For the purposes of this section, “net estate”, with respect to the estate of a person, means the estate that remains after provision for the satisfaction of—

(a) other liabilities of the estate having priority over the rights referred to in paragraphs (b) and (c),

(b) any rights, under the Succession Act 1965, of any surviving spouse of the person, and

(c) any rights, under the Succession Act 1965, of any surviving civil partner of the person.”

16. The Appellant has raised a number of legal arguments concerning the provisions of this section.

I. Arising from Sub-section (3):

17. This provides that the court may make provision for CD as the court considers appropriate but that, in so doing, the court, i. Have regard to the rights of any other person having an interest in the matter (this would obviously include EF and AB’s mother).

ii. Must be satisfied that proper provision in the circumstances was not made for CD during the lifetime of the deceased for any reason other than conduct by CD that, in the opinion of the court, it would in all of the circumstances be unjust to disregard.

18. It is in respect of the second element of the sub-section that EF takes issue. It is submitted that in order to be satisfied that proper provision was not made for CD during the lifetime of AB, I must be satisfied that some provision ought to have been made for him in that context, in terms of a moral or other obligation. It is contended that CD being young, able-bodied and self-sufficient that there no such obligation on the Deceased. Additionally, or in the alternative, it is contended that the Deceased did make such proper provision through the purchasing and sharing with CD of an apartment and bearing the bulk of the utility bills. In essence, it is contended that the independent circumstances of CD were such that there was no requirement or obligation for AB to make provision and, if there was such requirement, AB fulfilled his obligations in this regard such that no further provision is required pursuant to section 194 of the 2010 Act.

19. Section 194(3) of the 2010 Act was considered by Baker J. in D.C. v D.R. [2015] IEHC 309. Of course, there were many other issues in dispute in that case including cohabitation and whether the applicant was a qualified cohabitant. At paragraph 111, Baker J. stated:

“111. Section 194(3) gives the court power to make such provision as it considers appropriate, but the court is mandated to have regard to the rights of any other person having an interest in the matter. I consider that there is no other person to whom the deceased had a financial commitment or in respect of whom she might have had an obligation to provide. The court is at large as to what provision it may make save that it may make what is described as "proper provision" if it is satisfied that provision was not made for the plaintiff in the lifetime of the deceased, and it must in the light of the statutory factors make provision only if it is just and equitable to do so. The court is entitled to have regard to the conduct of the plaintiff if it would in the circumstances be unjust to disregard that conduct in refusing to make relief, but no question arises with regard to any conduct of the plaintiff that might disentitle him to relief in this case.”

20. The learned judge continued at paragraph 124 to state:

“124. A qualified cohabitant may make application to the court for provision under the net estate of a deceased cohabitant. The court may make such provision if it is satisfied that proper provision was not made for the applicant during the lifetime of the deceased. I consider that the direction to the court to have regard to the factors set out in s. 173 (3) imports a degree of objectivity, thus the motivation of a deceased in not making provision in his or her lifetime for a cohabitant is not of itself determinative of the question, and the court must look to the provision actually made inter vivos and test that against a provision that the court would consider to be appropriate in the circumstances of a surviving cohabitant.”

21. The Respondent argues that the language of section 193(3) of the 2010 Act is consistent with the necessity of a moral or other obligation on the deceased to provide and there was none such here. I have considered the authorities in this regard. Baker J., at paragraph 125, stated:

“I also accept the argument by counsel for the defendant that as this legislation is part of the nexus of family and succession legislation and that some assistance can be derived from the jurisprudence of the courts under s.117 of the Succession Act 1965. In particular she asked that I note the judgment of Kearns J. in X.C v. R. T. (Succession: Proper provision) [2003] 2 IR 250 to the effect that an adult child with sufficient financial resources is not likely to obtain an order that provision be made out of the estate under s. 117 and this approach has found favour in the approach of the courts. As with a claim under s. 194 there is no automatic right to a share but successful claims may be made by adult children under s. 117 even when they are financially independent, but the courts have pointed to a "relatively high onus" to discharge, see Re IAC [1990] 2 IR 143.”

22. I consider the dictum at paragraph 129 of particular assistance:

“129. I consider that the provisions of s. 194 import a different test from that found in s. 117 of the Act of 1965 but the myriad of factors relevant to a claim under s. 117, as elucidated by Kearns J. in X.C. v. R.T. (Succession. Proper provision)., shows the extent to which the courts have strained to adopt general guidelines: see Re IAC. I am of the view however that there is no "relatively high onus" on a claimant under s. 194, as has been identified in the jurisprudence under s. 117, where an adult child is concerned, and of course as the Act of 2010 can confer benefits and obligations on adults only it can be expected that in many cases these adults can have a degree of separate financial resources.”

23. I have also considered, and I have found instructive, the judgment of Allen J. in G.R.

v. Regan [2020] IEHC 89, particularly at paragraphs 58 and 59:

“58. Baker J. accepted the submission of counsel for the defendant in that case that Part 15 of the Act of 2010 was part of the nexus of family and succession legislation and that some assistance could be derived from the jurisprudence under s. 117 of the Succession Act, 1965. That said, it seems to me that much of the value of comparing and contrasting s. 194 of the Act of 2010 with s. 117 of the Act of 1965 is to identify the differences, rather than similarities, in the approach.

59. While both ss. 117 and 194 use the same language of “proper provision”, the right to make a claim under s. 194 is not founded on the mere fact of the relationship. In the case of a qualified cohabitant the court is required to consider the nature and duration of the relationship and the mutual contribution to welfare made in the relationship.”

24. I have concluded, having regard to the legislative wording and to the authorities, that the arguments of the Respondent herein would require importing into the statute preconditions which are not to be found in it. The existence of a moral or other obligation may be relevant to the issue of proper provision but the legislation does not provide that the latter is confined by the former. There is no reference to a requirement of obligation, moral or otherwise. At paragraph 18 of her judgment, Baker J. states:

“18. It is noteworthy that there is no requirement in the legislation that an applicant seeking relief under the section show that he or she was financially dependent on the deceased.”

25. I must make provision as I consider appropriate having regard to the rights of other interested persons subject to being satisfied that proper provision in the circumstances was not made during the lifetime of the deceased. Such deficiency of provision during the lifetime may have comprised no provision or inadequate provision. I am of the view that “proper provision in the circumstances” must permit of consideration of the circumstances pertaining during the relationship and in the context of the death of the cohabitant. Indeed, this is clear in the dictum of Baker J. when she states (at paragraph 24):

“… the court must look to the provision actually made inter vivos and test that against a provision that the court would consider to be appropriate in the circumstances of a surviving cohabitant.”

26. The evidence supports the conclusion that, in the context of their intimate and committed relationship, AB assumed a substantial role in the provision of accommodation and the discharge of the expenses of the couple. CD clearly contributed but at a lesser level consistent with their professional circumstances. This support was actually made inter vivos and forms the backdrop of what is appropriate in terms of provision in death. I am satisfied that in the circumstances which pertain in this instance, proper provision was not made for CD during the lifetime of the deceased. To determine that a sufficiency, indeed, a generosity of provision during the lifetime of the deceased while the relationship was ongoing, which provision ceased upon the death of the deceased, obviated any consideration of the position pertaining post-death would be to entirely defeat the purpose of section 194 of the 2010 Act.

II. Arising from sub-section (4):

27. It is asserted that the onus is on CD to show that provision should, in all of the circumstances, be made for him. There are a number of obvious points arising from this sub-section:

i. I must have regard to “all of the circumstances of the case”.

ii. the particularised matters in sub-paragraphs (a) to (d) are not exhaustive.

iii. It is clear that, on the facts of this case, (a) and (b) do not arise.

iv. I must have regard to the interests of the beneficiaries (the parents).

28. In this regard, the present circumstances are not unlike those which arose in D.C. v D.R. above, the beneficiaries there were siblings of the deceased while in this case they are the deceased’s parents, in respect of which Baker J. stated at paragraph 123:

“The deceased did not leave a surviving spouse or a civil partner or a former spouse or former civil partner, and accordingly Section 194(4)(c) mandates that I must have regard to the interests of the beneficiaries following her death intestate, The persons entitled to inherit on the death intestate of the deceased are her three brothers who will share equally in her estate. No guidance is given in the legislation as to what factors the court should take into account in displacing the rights of the beneficiaries on a death whether testate or intestate of a deceased, but having regard to the fact that the scheme of the legislation is to make financial provision for a qualified cohabitant following the death of the other, it seems to me that the interests to which I primarily must have regard are the financial interests, and ipso facto the financial demands or needs of those beneficiaries. I have heard nothing in the course of evidence before me that would suggest that the three brothers of the deceased are in any financial difficulty, and indeed they too inherited an amount equivalent to the amount inherited by the deceased from their late mother and each of them is in professional employment. Thus it seems I must engage to some extent in weighing the financial demands or needs of the plaintiff against those of the other persons who would benefit in the estate of the deceased, and while it is the case that provision may be made under s. 194 even when financial dependence is not shown, the degree of financial needs must inform the extent of provision that the court will make if any, and the extent to which the court will displace an interest of a beneficiary.”

29. Here, there is likewise no evidence of financial need on the part of the parents or the adult siblings of AB.

30. I must also have regard to the factors set out in section 173(3) of the 2010 Act.

SECTION 173(3) FACTORS

31. To some degree, section 173(3) factors sit unhappily into the considerations in applications pursuant to section 194 as the listed factors are in the context of inter vivos applications while section 194 provision arises in the context of the death of a cohabitant. Having regard to the referencing of it in section 194(4) of the 2010 Act, the provisions must be adapted to that situation. Section 173(3) provides:

“(3) In determining whether or not it is just and equitable to make an order in all the circumstances, the court shall have regard to—

(a) the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future,

(b) subject to subsection (5), the rights and entitlements of any spouse or former spouse,

(c) the rights and entitlements of any civil partner or former civil partner,

(d) the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant,

(e) the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another,

(f) the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other,

(g) any contributions made by either of them in looking after the home,

(h) the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home,

(i) any physical or mental disability of the qualified cohabitant, and

(j) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.”

(a) CD is in modestly paid employment. He has embarked upon further studies with a view to improving his situation, but I cannot conclude, as EF submits, that he is selfsufficient. He is entirely dependent upon his occupation of and the availability of the apartment in respect of his accommodation needs. The very real challenges which he would experience if this was not available to him have been set out in his evidence and were not contradicted.

(b) – (d) are not applicable.

(e) It is conceded that CD and AB were in a committed relationship. The relationship endured from 2008 to 2013. I do accept that the duration is but little in excess of the statutorily required minimum but, while this may be of considerable importance in certain instances, I do not consider it to be of such significance here in circumstances in which the parties were free to and actively considered marriage and, importantly, they established a home together during the course of their relationship. This was a joint enterprise. The involvement of CD (in terms of providing him with a legal entitlement) would have been greater had it not been for his then immigration status and the financial disparity between the parties. I have correspondence from AB conceding this referencing his “partner” and the need to sort the matter down the line.

(f) This provision seems to be more focussed towards inter vivos provision, but it does have a particular relevance in the present case where the parties had a joint account to which both made contributions in accordance with their financial positions which account funded their joint home and joint living expenses.

Clearly, these are contributions which AB was not in a position to make postdeath.

(g) The evidence in the case is clear that AB and CD established a joint home, and each contributed thereto in accordance with their means. There would appear to have been clear agreement or understanding between them in this regard.

(h) I do not consider this to be of relevance in this instance.

(i) I heard uncontroverted evidence from CD of a disability suffered by him which is permanent and progressive in nature. I do not believe that this is currently an issue causing substantial impairment, but it is of significance and there are clearly expenses related to it (expenses which CD gave evidence are onerous having regard to his means. His evidence is that he delays acquiring necessary or assistive equipment due to his means). This condition was known during the lifetime of AB. There is evidence of some deterioration in this regard.

(j) I do not consider there are any conduct issues, either during the relationship or subsequent to it, which arise and which it would be unjust for me to disregard. It was urged upon me that CD remaining in the apartment and enjoying occupation thereof together with occasional income from lodgers amounted to conduct.

While I do consider the use and enjoyment of the apartment to be a relevant circumstance in this case, I do not believe that this is conduct which “it would be unjust to disregard” as referenced in the statute.

CONCLUSION

32. Having regard to the foregoing, I conclude that appropriate provision in the present circumstances is made by dismissing the appeal and affirming the orders of the Circuit Family Court in their entirety.