Cohabitation agreement for an Italian-Brazilian couple: protection of assets and residence permit
Hypothetical case study developed on the basis of our experience with families on international matters, intended to illustrate the type of operations that the Firm is able to structure and manage for clients with a similar profile; the scenario does not refer to a specific case actually handled.
An Italian entrepreneur and his Brazilian partner have been cohabiting for three years in Milan. He is the owner of a business with significant turnover, two properties and an investment portfolio. She is in Italy with a residence permit for work reasons about to expire, without any protection of assets or inheritance in the event of a break-up or the death of the partner. A situation that concerns thousands of mixed couples in Italy: the foreign cohabitant, unlike the spouse, has no inheritance rights, does not automatically have the right to the common home, and risks losing the residence permit if the relationship ends before the renewal. What was needed was an intervention that addressed three fronts simultaneously: the regularisation of the residence permit through the registration of the de facto cohabitation, the protection of assets through a structured cohabitation agreement, and the inheritance protection through targeted testamentary provisions. Three different legal instruments, to be coordinated in a single coherent strategy.
The case
A forty-five-year-old Milanese entrepreneur, owner of a company in the design furniture sector with an annual turnover exceeding two million euros, and his thirty-eight-year-old Brazilian partner, a professional in the communications sector with a fixed-term contract at a Milanese agency. The couple had been cohabiting for three years in an apartment owned by the man in the centre of Milan.
The Italian partner’s assets included: the majority stake in the company, two properties (the residence apartment and a commercial property leased to third parties), a portfolio of securities investments and a life insurance policy. The Brazilian partner had no significant assets in Italy, her residence permit for work reasons was about to expire within six months and the employment contract offered no certainty of renewal.
The couple had approached the Firm with an apparently simple request: “we want to regularise our situation”. In reality, the initial analysis had brought to light three serious and interconnected vulnerabilities that neither of them had fully understood.
The challenge
The situation presented three orders of complexity that required cross-cutting competences between family law, immigration law and asset planning, a combination rarely available in a single interlocutor.
Migratory vulnerability
- The Brazilian partner’s residence permit for work reasons was linked to a fixed-term contract about to expire: without a renewal of the employment contract or an alternative residence title, she would have had to leave Italy by the expiry of the permit
- Legge 76/2016 (Legge Cirinnà) allows registered de facto cohabitants to request a residence title for family reasons pursuant to D. Lgs. n. 30/2007, but the procedure requires the prior registration of the de facto cohabitation with the municipal registry and the demonstration of a stable and lasting cohabitation
- The timing was critical: the registry registration, the request for the new permit and its issue had to be completed before the expiry of the existing permit, to avoid a period of irregularity
Asset vulnerability
- Unlike marriage, de facto cohabitation does not automatically generate any matrimonial property regime: each asset remains the exclusive property of whoever acquired it, regardless of the contribution of the other partner to the common life
- In the event of the cessation of the cohabitation, the Brazilian partner would have had no right over the apartment in which she lived (of the partner’s exclusive property), nor over any other asset, nor the right to a maintenance allowance, despite three years of life together and the contribution to the domestic management
- The man’s business assets (company stake, commercial property) needed a structuring that would protect both the Italian partner from excessive claims in the event of a break-up, and the Brazilian partner from an exit from the cohabitation without any economic recognition
Inheritance vulnerability
- The de facto cohabitant, unlike the spouse, is not a legitimate heir: in the event of the death of the Italian partner, the Brazilian partner would not have inherited anything. The entire estate would have gone to the relatives of the deceased according to the rules of legitimate succession
- Legge Cirinnà recognises the surviving cohabitant only the right to continue living in the common home for a limited period (two years, or equal to the duration of the cohabitation if shorter, up to a maximum of five years), but does not attribute any right over the ownership of the property nor over other assets
- To guarantee inheritance protection to the Brazilian partner it was necessary to prepare a will, but this had to be structured in compliance with the shares of legitimate portion due to any legitimate heirs (in the case in point, the man’s parents, still alive), to avoid challenges
The solution
The Firm structured a coordinated intervention on three parallel fronts, with a temporal sequence calibrated to resolve first the migratory vulnerability (the most urgent), then the asset one and finally the inheritance one.
1. Registration of the de facto cohabitation and residence permit
- Collection of the documentation proving the stable and lasting cohabitation: lease contract or common residence, joint declarations, banking and tax documentation attesting to the life in common
- Drafting of a cohabitation agreement and consequent request for its registration with the registry of the Municipality of Milan, pursuant to art. 1, paragraphs 36-37 of Legge 76/2016, with entry in the registry records
- Preparation of the application for a residence permit for family reasons as a de facto cohabitant of an Italian citizen, with supporting documentation: certificate of registry cohabitation, demonstration of the stability of the bond, income documentation of the Italian partner
- Coordination of the timing with the expiry of the residence permit for work, guaranteeing the continuity of the regularity of the stay during the transitional phase
2. Cohabitation agreement
- Thorough analysis of the asset situation of both partners: mapping of the present assets (properties, company stakes, investments, policies) and of the debts, with a distinction between personal assets and assets acquired during the cohabitation
- Drafting of the cohabitation agreement pursuant to art. 1, paragraphs 50-63 of Legge Cirinnà, with the following provisions:
- Property regime of the cohabitation: choice of a regime of separation of assets with a clause of participation in the asset increases accrued during the cohabitation, calibrated to protect the man’s pre-existing assets while at the same time recognising the partner’s contribution to the common life
- Right of habitation: recognition of the Brazilian partner’s right to continue living in the common apartment for a defined period even in the event of the cessation of the cohabitation, with methods and timing specified in the agreement
- Contribution to common expenses: regulation of the division of the expenses of managing daily life, proportionate to the respective incomes
- Obligations of mutual assistance: provision of an economic contribution in favour of the economically weaker partner in the event of the cessation of the cohabitation, proportionate to the duration of the relationship and the standard of living maintained
- Property clause: specific regulation for the project of joint purchase of the new property, with provision of the ownership shares, the financing methods and the criteria for division in the event of the cessation of the cohabitation
- Protection of the business assets: express exclusion of the company stake from the perimeter of the asset participation, with a clause that distinguishes between the company assets (protected) and the fruits of the business activity (subject to participation in the agreed measure)
- Coordination with the lawyer for the stipulation of the agreement and the transcription in the registry records, as provided for by law
3. Inheritance planning
- Analysis of the man’s inheritance situation in the absence of a will: with living parents and in the absence of children and spouse, the entire estate would have gone to the parents, completely excluding the cohabitant
- Preparation of a will with provisions in favour of the Brazilian partner, structured in compliance with the parents’ share of legitimate portion: attribution to the cohabitant of the available share, with specific indication of the assets to be allocated to each beneficiary to avoid situations of inheritance co-ownership
- Recommendation for a periodic review of the testamentary provisions as circumstances change (birth of children, death of parents, significant asset variations)
The result
The intervention unfolded over a period of about three months, from the initial consultation to the completion of all the formalities.
- De facto cohabitation registered with the registry of the Municipality of Milan without critical issues, with the issue of the cohabitation certificate
- Residence permit for family reasons obtained before the expiry of the permit for work, guaranteeing the continuity of the regularity of the stay and freeing the partner’s presence in Italy from the employment relationship
- Cohabitation agreement stipulated and transcribed, with a structure that protects the man’s business assets without leaving the partner without rights: calibrated participation regime, guaranteed right of habitation, contribution in the event of cessation provided for
- Will prepared in compliance with the shares of legitimate portion, with attribution of the available share and other rights to the cohabitant
- Joint property purchase project started with a clear regulation of the shares and methods of division, preventing the conflicts that co-ownership could have generated
The couple obtained a complete legal structure that did not exist before: the Brazilian partner has a stable residence title, defined asset rights and inheritance protection; the Italian entrepreneur has the certainty that the business assets are protected and that every aspect of the relationship is regulated in a clear and balanced way. A situation that was previously entirely left to good fortune is now regulated by coordinated legal instruments.
What clients tell us in similar cases
“When you cohabit without being married you think everything is fine as long as it is fine. We had no idea that in the event of any unforeseen circumstance, she would have had no right: neither over the house, nor over the inheritance, nor over the residence permit after the expiry of the employment contract. We thought that three years of life together counted for something from a legal point of view. It’s not so. The Firm opened our eyes and built complete protection in a short time, starting from the urgency of the residence permit and arriving all the way to the will. Today we know exactly what happens in any scenario, and this gives us a peace of mind we didn’t have before.”
Duration and team
The intervention was completed in about three months from the initial consultation, with the following involvement:
- Lawyer specialised in family law, for the drafting of the cohabitation agreement, the advice on the discipline of Legge Cirinnà and the coordination of the entire intervention
- Lawyer specialised in immigration law, for the registration of the de facto cohabitation, the migratory strategy and the request for the residence permit for family reasons
- Advice on asset and inheritance planning, for the analysis of the inheritance situation, the drafting of the will in compliance with the shares of legitimate portion and the structuring of the protection of the business assets
- Legal coordination, for the stipulation of the cohabitation agreement and the transcription in the registry and civil status records
The direction of the case was entrusted to a single point of reference, responsible for the coordination between the different competences and for the constant updating of the clients on timing and progress.
Do you have a similar case?
If you cohabit with a foreign partner or with an Italian partner without being married and want to protect your situation, it is essential to rely on a professional who knows how to:
- assess the migratory situation of the foreign partner and activate the path for a stable residence permit through the registration of the de facto cohabitation
- draft a cohabitation agreement that protects both partners, protecting the pre-existing assets and recognising the contribution to the common life
- structure the inheritance protection of the cohabitant, who unlike the spouse has no automatic inheritance right
- coordinate the aspects of family law, immigration and asset planning in a single coherent strategy
- manage the private international law profiles when the couple has ties with several legal systems
Our Firm is specialised in family law with specific competence on cohabitation agreements for mixed couples and on the protection of de facto cohabitants. We approach every case with an integrated approach that covers all the legal aspects of cohabitation: migratory, asset and inheritance.
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