De facto couples in Italy

De facto cohabitation is based on precise requirements: it is a relationship between two adults stably united by affective ties and by mutual moral and material assistance, who are not bound by ties of kinship, adoption, marriage or civil union. To demonstrate stable cohabitation, an anagraphic declaration before the civil status officer is necessary, in line with the provisions of the Anagraphic Regulation of d.P.R. n. 223/1989.

The anagraphic declaration, the cardinal element for the recognition of de facto couples, raises further questions. The Anagraphic Regulation provides that this declaration is necessary for the registration of a new cohabitation, but legge n. 76/2016 does not fully clarify the legal value of such act. Although the failure to register may entail sanctions, the Regulation allows the anagrafe to proceed of its own motion, creating potential problems for those who, while cohabiting, do not intend to formalise the relationship.

It should be highlighted, with regard to the legal value of the anagraphic declaration, that this, concerning annotations entered in public registers, namely declarations made to the Administration, has full evidentiary effectiveness only in relation to the existence of the annotations and declarations themselves, but not also with regard to the correspondence of the same to factual reality, and may therefore contribute to the formation of a judge’s conviction as simple presumptions, surmountable with contrary evidence.

The path to formalise cohabitation is articulated in specific steps.

The first step is to submit a declaration to the anagraphic office of the municipality of residence, attesting the affective bond and the cohabitation. This declaration must be signed by both partners.

A lawyer for de facto couples can guide the cohabitants through these bureaucratic steps, ensuring the correct presentation of the necessary documentation. In particular, legal intervention is necessary when the de facto cohabitation is established with a foreigner without a residence permit, who might receive a refusal from the Municipality, not having — and not being able to request — anagraphic residence. The law firm verifies the presence of all the requirements and prepares the required documentation, avoiding possible errors that might invalidate the registration. In addition, we file appeals to the ordinary judge against Municipalities that deny the residence permit to the foreign de facto cohabitant, who is thus prevented from living the relationship with the Italian citizen.

De facto cohabitants enjoy specific rights that we shall describe below. As a premise, it must be said that the law, while recognising such rights, provides for a different legal regime than civil unions. Already from the point of view of establishment, while the latter require a solemn public deed with the participation of witnesses, de facto cohabitations require only an anagraphic declaration. This disparity raises doubts about the consistency of the regulatory system, given that the rights and duties arising from cohabitations do not always find an analogous correspondence to those guaranteed by marriage or civil unions.

Reviewing the principal rights of de facto cohabitants we can highlight:

• that de facto cohabitants have the same rights due to the spouse in the cases provided by penitentiary law; reference is therefore made, for example, to interviews with detainees in prison;
• that in case of illness or hospitalisation, de facto cohabitants have the mutual right of visit, of assistance as well as of access to personal information, according to the rules of organisation of public, private or contracted hospital or assistance facilities, provided for spouses and family members;
• that each de facto cohabitant can designate the other as their representative with full or limited powers: a) in case of illness that entails incapacity to understand and to act, for decisions on health matters; b) in case of death, with regard to organ donation, the methods of treatment of the body and funeral celebrations;
• that the de facto cohabitant who stably provides their work within the other cohabitant’s enterprise is entitled to participation in the profits of the family enterprise and in the assets purchased with them, as well as in the increases of the company, also with regard to goodwill, commensurate with the work performed: a right that does not apply where between the cohabitants there is a relationship of partnership or of subordinate work.

Over time, case law has contributed to strengthening the protection of cohabiting couples, recognising rights to compensation for patrimonial and moral damage, the possibility of taking over lease contracts, and even access to certain forms of social security protection, such as the right to a survivor’s pension in specific cases. However, gaps persist, and not all the guarantees provided for spouses or partners of civil unions extend to cohabitants.

An emblematic example is the absence of an obligation of fidelity between cohabitants, an obligation instead provided for spouses pursuant to the Codice Civile. This aspect highlights a choice of the legislator to avoid full equation between cohabitation and marriage, leaving greater autonomy to the cohabitants, but at the same time reducing the protections in case of breakdown of the relationship.

A comparison between the definitions of de facto cohabitation and anagraphic family highlights significant differences. The anagraphic family, as defined by the Regulation, requires cohabitation in the same municipality and provides for ties that may include marriage, kinship, affinity or adoption, while de facto cohabitation is based exclusively on affective ties and does not necessarily imply cohabitation in a given municipality.

It can be said that current legislative provisions, while on the one hand recognising de facto couples, on the other continue to treat them as a distinct and less structured legal entity than marriage and civil unions. This distinction can be read as an attempt to leave greater flexibility to cohabiting couples, but it opens the way to potential claims of equal treatment.

It is plausible that, in the future, these issues will reach the attention of the Corte Costituzionale, in relation to the possible violation of articles 2 and 3 of the Constitution, which guarantee respect for fundamental rights and the principle of equality.

Paragraph 59 of the Legge Cirinnà governs the cases in which the cohabitation contract is dissolved, listing four specific situations: agreement between the parties, unilateral withdrawal, marriage or civil union of one of the cohabitants and death of one of the contracting parties. Each of these cases reflects a principle of flexibility and adaptability of the contract to the changed personal or relational conditions of the parties. However, the practical application of these provisions can generate problems, especially with regard to unilateral withdrawal.

Agreement between cohabitants for the dissolution of the contract represents the most linear and consensual way to terminate the agreement. In these cases, both parties collaborate to formalise the decision, using the same methods provided for the conclusion, such as the public deed or authenticated private writing. The same form is also required for cases of unilateral withdrawal, which attributes to each cohabitant the freedom to interrupt the contract without the consent of the other. However, withdrawal can have significant repercussions, in particular when it concerns housing aspects. If the family home is in the exclusive availability of the cohabitant who exercises the withdrawal, the law imposes that the latter grant the other cohabitant a minimum term of 90 days to leave the dwelling. This provision offers a minimum protection to the vulnerable cohabitant, but might prove insufficient in situations of greater economic or family difficulty.

The dissolution of the contract is also provided in the case in which one of the cohabitants enters into marriage or civil union, either with the cohabiting partner or with a third person. In such hypothesis, the contractor who formalises the new relationship must notify the event to the other cohabitant and to the professional who authenticated the contract. This procedure ensures that the dissolution is documented clearly, preventing any ambiguity on mutual rights and duties. Similarly, the death of one of the cohabitants entails the automatic dissolution of the contract. The heirs or the surviving cohabitant are required to notify the death certificate to the professional who received the contract, so that they can make the necessary annotations and the communication to the anagrafe.

When the contract provides for the regime of community of assets, its dissolution implies the dissolution of the community, with the application of the rules of the codice civile on the matter. This ensures orderly management of patrimonial issues, but the role of the notary remains firm for any transfers of real estate rights. This aspect introduces an additional level of formality and control, useful to avoid disputes, but it also entails costs and obligations that may burden the parties.

The possibility of unilateral withdrawal is an essential component of the cohabitation contract, since it reflects the right to personal freedom of the cohabitants. However, this faculty might create imbalances, especially when one of the cohabitants is economically weaker or is in a situation of greater dependence. The lack of an obligation of compensation for the cohabitant who suffers the withdrawal, save for any contractual clauses, highlights a limit in the protection offered by the legislation.

The rules provided for the dissolution of the contract seek to balance flexibility with legal certainty. The formalisation of the acts, including the need for notifications and registrations, ensures the traceability of decisions and the protection of the rights of the parties. However, their effectiveness depends on the careful observance of the formalities provided, the failure of which could generate problems of validity or professional liability. The current regulation, while offering a solid regulatory basis, leaves open questions on the protection of the most vulnerable cohabitant, in particular in cases of unilateral withdrawal or loss of the family dwelling.

The dissolution process requires particular attention to formal and substantive aspects. Legal assistance for de facto couples becomes crucial to manage correctly this delicate phase. The effects of the dissolution are produced from the moment in which the appointed professional attests its receipt.

A lawyer for de facto couples protects the interests of their assisted client during this phase, ensuring that rights acquired during the cohabitation are respected. Particular attention is paid to the division of common assets and to the management of any economic pendencies.

Dissolution can also occur by mutual agreement, a situation that in any event requires formalisation through public deed or authenticated private writing. In this case, the law firm facilitates the achievement of a balanced agreement between the parties.

With the approval of Legge n. 219/2012, every legal distinction between children born within and outside marriage was eliminated, unifying the concept of “child” and ensuring equal rights to all. This change introduced the principle of parental responsibility, which imposes on both parents, regardless of their marital status, to take care of their children in relation to their capacities and economic availability.

Children born to a de facto couple enjoy the same rights and protections provided for children born within marriage. Therefore, children have the right to be maintained, educated and morally assisted until reaching economic independence. This obligation belongs to both parents even in case of cessation of the cohabitation. To establish the methods of custody and maintenance, unmarried couples must follow a specific procedure, addressed to the ordinary Tribunal of the place of habitual residence of the minor.

Custody of children tends to be shared between the parents, save for cases in which the family situation makes exclusive management necessary, as provided by law. This type of custody is chosen only in the presence of serious reasons, such as the failure of one of the parents to fulfil their obligations or situations that may compromise the well-being of the minor.

Another crucial aspect is the economic maintenance of children. This includes both ordinary expenses, covered by a monthly allowance, and extraordinary ones, such as school activities or specialist medical expenses, which must be agreed and divided between the parents. The calculation of the maintenance allowance is based on the needs of the child and the economic capacities of the parents, also considering the income and personal expenses of each parent.

The management of de facto cohabitation has been formalised by the Legge Cirinnà (Legge n. 76/2016), which has attributed to these unions a series of rights and duties. This includes the possibility of entering into cohabitation contracts to regulate patrimonial relations and to ensure mutual protections in case of separation or death of one of the cohabitants. However, with regard to children, the provisions are independent of the relationship between the parents and focus on their superior interest.

Children born to de facto couples benefit from legal protection equivalent to that of children of married parents. This approach reflects the evolution of society and the recognition of the need to ensure rights and stability to minors, regardless of the legal status of the parents.

A lawyer for de facto couples can provide specialised support in the management of these aspects, helping the parents to establish clear agreements that ensure the well-being of the children. The law firm assists in the drafting of documents that regulate the relations between parents and children, considering both the economic and the affective and educational aspects.

Particular attention is dedicated to the definition of the methods of maintenance of children. The parents must contribute in proportion to their economic capacities, ensuring to the children an adequate standard of living. Legal assistance for de facto couples includes the assessment of available resources and the definition of balanced agreements for the economic support of minors.

In case of cessation of the registered cohabitation, it becomes fundamental to establish clear rules for the custody and maintenance of children. The law firm supports the parents in the definition of agreements that primarily protect the interest of the minors, ensuring the right to maintain meaningful relations with both parents.

The presence of children requires particular sensitivity in the management of family dynamics, and professional legal support can make the difference in building a serene and stable environment for their growth.