I take your points fully, huskerdu. Yet I also think you are wrong in implying that I'm aiming to do anything that would be unfair on my partner.
In reality, better by far to rail against the unfairness of the civil/tax law in Ireland, with its bias against those long term cohabitants who are unmarried. There are sound reasons in people's minds NOT to marry. First, a couple may feel that marriage will alter significantly the nature of the relationship, one that is based on remaining together into the future simply out of love, and not because of some external covenant made before the state or before God. Second, a partner who had previously been married may feel (as I do) that the vows I made were made seriously, and for that reason not wish to marry again. And there can be other reasons also, some practical, some moral.
The law as it stands appears to force cohabitants into marriage, if a partner wishes to provide for his/her other half without losing 50% or more to the tax man. Cohabitants, whether 'qualified' or not, remain blood strangers, hence 'enjoying' a mere €16,250 of inherited assets not liable to CAT/inheritance tax.
That must affect many thousands - tens of thousands - of long term, committed cohabitants who for one reason or another, don't wish to marry.
To address your specifics:
- I don't know what legal precedents there are. I suppose there must be some but I am not a lawyer.
- The Act implies - more than implies - that a cohabitants' agreement, meeting certain conditions, can make provision to see that the surviving partner is looked after vis-a-vis both property and maintenance. I know what that translates into, in capital terms, in order to provide an income stream that would allow my partner to live fully. My partner (and my children) agree with the 'budget' that's based upon. Frankly, I don't see why my partner shouldn't be awarded that in the court.
- The court would be following the law by making such an order. The law is clear enough there. Though...I agree that one can never second-guess what decision a court will make.-
- The tax I am seeking to save (as a necessity in order to allow me to provide for my partner while also leaving sufficient to my children) is substantial. Even acknowledging the fantastical fees that a solicitor may charge, the fees would have to be enormous to amount to more than the tax that would be due.
- In reality, I am not clear that my partner would need legal representation, if the right preparation has been done. After all, when I divorced, my ex-spouse and I did it with no solicitors involved, at a total cost of some €60 (for Commissioner of Oaths fees). My experience when represented in court by a solicitor is that I would have been better off to have represented myself; the outcome would have been infinitely better, and it would have been free!
- Yes: I am certain that my children will not object, and indeed that they would/will support, and be seen to support in court, my partner.
- I certainly do NOT want to force my partner to go to court. Yet, if it were the only way, then I say to you that that is the fault of the law of the land's fault, not mine.
In the event, we probably WILL marry: reluctantly and with heavy hearts. Not because we don't love one another, but because we do. And because I always took my marriage vows from my previous marriage very seriously.
To be frank, I think I feel the energy for a campaign coming on. The law as it stands for unmarried cohabitants - cohabitants who easily meet the criteria for being 'qualified cohabitants' - is unfair and unbalanced. It makes for a difficult outcome at best. It can force a person to go against their deepest principles. It actually undermines the 'sanctity of marriage', something the law purports to protect (as it must, within our Constitution); it says that a marriage vow, taken for life, can be thrown aside. And finally it seems to ensure that the hapless unmarried 'qualified cohabitant' must go and line the pockets of solicitors, in order to gain what is at best a less than optimum outcome.
Unless you have some obvious alternative route, huskerdu. If you have, I would love to hear it. Numerous people tell me - and my researches seems to confirm it - that trusts are complex and inefficient.
Do tell! I'm not the only person on this forum who would love to hear the alternative!
Greetings.