High Court: Woman who cared for partner before death should continue to live in their South Dublin home



High Court
High Court

The High Court has ruled that a woman who cared for her partner in the years before his death should have the benefit of his South Dublin property.

Mr Justice Senan Allen heard the application, pursuant to s.194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, for an order for provision for the plaintiff G.R. out of the estate of G.R.’s deceased cohabitant.

Section 194 allows a “qualified cohabitant” to apply to court after the death of his or her cohabitant for provision to be made for her or him out of the net estate of the deceased. Section 172(1) states that a cohabitant is “…one of 2 adults (whether of the same or the 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”.

Background

The deceased died intestate, was unmarried and had no children. The defendant Niamh Regan, solicitor, was appointed administrator on G.R.’s application pursuant to s.27(4) of the Succession Act 1965. Following her appointment as administrator, Ms Regan wrote to the deceased’s siblings notifying them of the proceedings. The deceased’s brother, E.D., replied and introduced himself as the spokesman of the siblings of the deceased.

G.R.’s case was that she was in an intimate and committed relationship with the deceased for 40 years and that they lived together for 32 years until his death on 5 December 2013.

The plaintiff and the deceased met in 1981 and lived together in the UK. In 1987, G.R.’s father was terminally ill and she returned to Dublin to be with him. The deceased came to Dublin at weekends and for holidays. In July 1998 he bought a house in South Dublin where he and the plaintiff lived until his death and where G.R. continued to live since. He had for months and years at a time lived in Scotland and Germany for work. In 2006 he began to suffer from vascular dementia. His health deteriorated rapidly. In 2007 G.R. gave up her job as a cook to care for him and did so for the remainder of his life. His death certificate showed G.R. to have been the informant and it was she who made the arrangements for his funeral and paid the funeral expenses.

E.D., swore a short affidavit in which he deposed that G.R., who he identified as his brother’s carer, was not in an intimate relationship with him from 28 March 2007, until his death on 5 December 2013, “because of his severe mental incapacity”.

Legal proceedings

G.R.’s counsel argued that she was a “qualified cohabitant”, which s.172(5) defines as cohabiting partner who was living with the deceased as a couple for a period, if they had no children together, of five years before the relationship ended. The court was urged to have regard to the duration of the relationship, the extent of the care provided by G.R. to the deceased, and the absence of any evidence of financial hardship on the part of the deceased’s siblings.

It was submitted that the deceased had followed G.R. to Dublin and had bought the house with a view to it being their home. Counsel for Ms Regan argued that the rights of a cohabitant are not equivalent to the rights of a surviving spouse, and the court could have regard to the entitlement of a surviving spouse to a legal right share. Counsel pointed out that there was no averment of a promise by the deceased to the plaintiff that she would have anything.

The court considered the case of M.W. v. D.C. [2017] IECA 255, wherein Ms Justice Finlay-Geoghegan said that ‘living with the other adult’ does not require two persons to live physically at all times in the same shared premises, and that a couple may not be physically living day-by-day in the same residence during the two-year period before the end of the relationship.

Conclusion

Having considered the case of D.C. v. D.R. where Ms Justice Baker held that the conduct of the plaintiff to which the court is entitled to have regard under s.173(3)(j) is not limited to poor conduct or bad behaviour and can overlap considerably with the contribution to welfare identified in section 173(3)(f), Mr Justice Allen held that the loyalty with which the plaintiff embraced the challenge of the deceased’s illness and the dedication with which she cared for him over many years was such that “it would be unjust to disregard it”. The court accepted that there was direct evidence that she had given up her job to care for the deceased.

The judge said that he had “no great difficulty” in coming to the conclusion that some provision ought to be made for G.R. from the estate of her deceased partner, and held that she should have the house in South Dublin where she and the deceased lived together for fifteen years.

Mr Justice Allen remarked that s.196 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 empowers the Circuit Court with a concurrent jurisdiction with the High Court to deal with applications, noting that he did not know why it was thought necessary to bring the application in relation to “this relatively modest estate” in the High Court. The court awarded G.R.’s and Ms Regan’s costs out of the estate, limited to Circuit Court costs.

© Irish Legal News Ltd 2020



Other judgments by Mr Justice Senan Allen