High Court: Woman fails to obtain declaration of cohabitation with deceased man despite being in an extramarital relationship for six years

High Court: Woman fails to obtain declaration of cohabitation with deceased man despite being in an extramarital relationship for six years

The High Court has refused an application by a woman for a declaration that she was a qualified cohabitant of a deceased man who was married to another woman.

The woman claimed to have been in a committed, exclusive relationship with the man for several years and therefore sought orders for property adjustment, pension adjustment and provision from the man’s estate.

Delivering judgment in the case, Mr Justice Max Barrett determined that the applicant fell short of establishing that she was a qualifying cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 because she could not establish that the deceased had separated from his wife for four of the previous five years.

It was held that the man spent considerable time in his wife’s home despite the extramarital affair.


The deceased (Mr X) was married to Mrs Y and had an extramarital relationship with Ms Z. Mrs Y was aware of the relationship with Ms Z which began in 2012. Mr X and Mrs Y slept in separate beds at home and generally did not have a monogamous marriage. However, Mrs Y claimed that she was never estranged from Mr X and that he always resided in the family home from 1997 to the date of his death. She asserted that they continued to cohabit as husband and wife, noting that their relationship was not celibate despite the relationship with Ms Z.

Further, Mrs Y stated that Mr X built an office to the side of the house and that he conducted his business from this space. It was said that Mr X always considered his house with Mrs Y to be his home, although it was accepted that Mr X stayed overnight from time to time with Ms Z. It was also accepted that Mr X meant a lot to Ms Z. It was firmly denied that they cohabited for six years.

In contrast, Ms Z maintained that she began dating Mr X in 2012 and entered a committed, exclusive and intimate relationship. It was claimed that by the end of 2012, they were living together at Ms Z’s address. It was asserted that Ms Z went on regular holidays with the deceased, while Mrs Y never did so. It was also claimed that the marriage was hostile and that Mr X and Ms Z held themselves out as a couple.

Ms Z also pointed to certain matters such as joint Christmas cards and being described as Mr X’s partner in his obituary. The applicant rejected Mrs Y’s assertion that her house was too small for Mr X, stating that he was happy to spend his time with her. It was also said that the deceased worked nights and left for work at about one or two in the morning, arriving back at 6am in the marital home to work for a short period before returning to have breakfast with Mrs Y at 9am.

In general, there was a complete factual dispute on the affidavits and in oral evidence relation to the deceased’s living arrangements.

High Court

Mr Justice Barrett began by outlining the relevant legislation applicable to the application. Under section 172 of the 2010 Act, a qualified cohabitant was an adult in a cohabiting relationship with another adult and who was living with that person for a period of either a) two or more years where they were the parents of dependent children or b) five years or more in any other case.

It was noted that section 172(6) provided a “carve out” for the definition of a qualified cohabitant. The section stated that a person would not be a qualified cohabitant if a) one or both of the adults was at any time married to someone else and b) at the time the relationship ended, each married adult had not lived apart from their spouse for at least four of the previous five years.

As such, the court held that the critical question was whether, at the time of Mr X’s death, he had lived apart from Mrs Y for at least four years of the previous five years. Considering the evidence in the case, the court was not satisfied that Mr X had lived apart from Mrs Y for the requisite period.

In reaching this conclusion, the court noted that the deceased’s marital home was with Mrs Y and that, even before the relationship with Ms Z, Mr X tended not to sleep with Mrs Y due to his unusual sleeping habits and frequent intoxication. Additionally, Mr X continued to sleep in his marital home during his relationship with Ms Z.

The court also accepted that Mr X and Mrs Y had intimate relations notwithstanding their difficult marriage overall. The court stated that, at its height, the applicant’s case was that Mr X rose in the morning at the marital home, spent some time at the office and returned to her home for breakfast. In the early evening, he would collect her from work and they would eat together.

However, the court observed that it did not appear that Mr X and Ms Z always spent late-evenings together. In this regard, the court accepted the evidence of Mr X’s son that the deceased was “a dedicated drinking man” who would regularly head out in the evenings to drink in local pubs. On the available evidence, the court concluded that Mr X left Ms Z in the early mornings to sleep at the marital home rather than attend work as was claimed.

The court did not place significant weight on the fact that Mr X and Mrs Y may have argued from time to time. Further, the court struggled to believe that Mr X planned to relocate with Ms Z abroad (as asserted by Ms Z) because he did not speak the language and had debts in Ireland which undermined his financial ability to move elsewhere.

While the court stated that both women had “good reason to consider herself to have be ill-used by Mr X in his lifetime”, the court could not conclude that the deceased had lived apart from Mrs Y for the requisite period to establish qualified cohabitation for Ms Z. Further, the court could not see how Mr X and Ms Z were “living together” within the meaning of section 172 of the 2010 Act.

Finally, the court noted that Ms Z did not appear to be financially dependent on Mr X and it did not appear that he made any provision for her in the event of his death.


The court refused to make a declaration that the applicant was a qualified cohabitant of the deceased and all other reliefs were refused.

Z v. Y [2022] IEHC 583

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