THE EQUALITY OF LAW by Darren Fitzgerald
Question: My girlfriend and I have been together over 30 years and do not plan on being married having been there previously and done that. However, my girlfriend’s family have never been too keen on our relationship. As we are now getting older, how would you advise us on protecting our wishes in the event one of us becomes mentally incapacitated. Answer: Thank you, Barbara. Hi Barbara, thank you for your question. You are not alone in your quandary as many couples both same sex couples and heterosexual couples face the same dilemma. The best way to protect what you and your partner’s wishes are in the event either of you become mentally incapacitated is to have an Enduring Power of Attorney in place appointing each other as your respective Attorney’s. This will give you the comfort of knowing you can look after each other’s wishes without having to contend with the family politics. You should make an appointment to see your solicitor as soon as possible to finalise same. BARBARA
Question: I am thinking of asking my partner of 2 years to move into my home with me. While we are very happy, I am slightly nervous of what will happen should we break up and what rights if any my partner would have in connection with my property. Answer: Hi Jason, your concerns are justified, and it is prudent to have considered all angles before inviting someone to share your home. If you do invite your partner into your home, you will be deemed a cohabiting couple. While co-habiting couples do not enjoy the same rights as married couples, co-habiting couples may be eligible to some rights under the Civil Partnership and Certain Rights and Obligations of Co Habitants Act 2010. The best way to protect both of you in this circumstance is to enter into a Co-Habitants Agreement. This is effectively a signed contract between you and your partner setting out your financial and property interests and what is to happen between you in the event you separate. Each co-habitation case is dealt with by a case-by-case basis, so it is best you both seek your own independent legal advice before entering into a Co-Habitation Agreement. JASON
Question: My boyfriend and I of 7 years have just jointly purchased out first home together in Cork for the sum of €500,000.00. We are conscious of any tax implications that may arise out of such purchase if anything were to happen to either of us and were wondering what we should do to best protect ourselves. Answer: Dear Gray and David, Congratulations on the new purchase. Exciting times ahead, however, it is prudent to be aware of matters such as tax when jointly purchasing a property. By virtue of you not being married, for the purposes of tax, you are deemed “strangers in blood” from the Revenue Commissioners perspective. In the unfortunate event of either of you pre-deceasing the other, the property will be taken in full by the surviving joint owner. Given you are deemed to be “strangers in blood” the maximum tax threshold (as of July 2022) for strangers is €16,250.00. So, given both of you were joint owners up to the death of the other, you will be deemed to have a share of 50% being €250,000.00 leaving an automatic survivorship share of €250,000.00. You could be facing a tax liability of 33% of €233,750.00 which is €77,137.50. This is a lot of money in any context especially at a time compounded with grief. The most practical way to protect yourselves from such a position is to marry as there is no tax threshold between spouses. Of course, there may be other options, so it is best to attend with
Darren is head of the Private Client Department in CDS Law & Tax LLP and looks after clients in matters such as Property, Family and Wills/Probate/Succession. As a proud member of the LGBTQ+ community, Darren has a keen interest in assisting members of his own community in an environment that can be viewed as formal and intimidating. Darren takes great pride in making his clients feel relaxed and comfortable when dealing with their most important affairs on a relatable level.
your solicitor to discuss all options. GRAY AND DAVID
Darren Fitzgerald | Solicitor
p: 021 235 5810 w: cdslaw.ie
e: darren.fitzgerald@cdslaw.ie a: Penrose Wharf, Alfred Street, Cork
CDS Law & Tax LLP is an Irish partnership authorised by the Legal Services Regulatory Authority in Ireland to operate as a limited liability partnership under the Legal Services Regulation Act 2015
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