Cohabitation in fact: recognition and rights

Law No. 76 of 2016 ( “Cirinnà Law “), enacted after repeated public pressure and a long and difficult passage through Parliament, recognizes and regulates the civil institutions of the union between persons of the same sex and cohabitation in fact.

In this seat we analyze precisely the latter institution (provisions of Art. 1, from paragraphs 36 to 67, of the Law Cirinnà), identifying the essential requirements and focusing on the main rights granted to cohabiting, similar to those provided sostenzialmente for spouses.

The requirements of coexistence in fact

Paragraph 36 of the Law Cirinnà considered ” cohabiting in fact” two persons of age together permanently as a torque emotional ties and mutual moral and material assistance, not bound by blood, affinity or adoption by marriage or civil union .

Under the law, therefore, for the recognition of a legally recognized cohabitation it is not relevant the simple coexistence of two foreign entities (for example, two college students roommates), but requires the existence of a stable emotional bond torque (without distinction sex), characterized by an effective mutual assistance and, above all, the absence of a family relationship / adoption and a previous official bond (marriage or civil union).

Rights of cohabiting

The Law Cirinnà provides for de facto couples a series of rights and duties substantially similar to those of the spouses, also allowing cohabiting to draw up a contract that governs the balance ratio of the common life.

Among the main rights provided in favor of the partners include:

• The opportunity to visit your partner in prison (paragraph 38).
• Mutual legal visit , the assistance and access to personal information , in case of illness or hospitalization of the partners, according to the rules of organization of hospitals or public assistance (paragraph 39).
• The faculty, due to each partner, to designate the other as its representative with full powers or limited (paragraph 40), in case of:
  1. disease resulting in inability ‘of sound mind, for decisions on health;
  2. death , with regard to organ donation, the mode ‘of the body treatment and funeral celebrations.

This designation must be carried out compulsorily in written form and autograph or, in case of impossibility ‘of writing it, in the presence of a witness .

• If the joint owner of the dwelling, the surviving partner’s death may continue to live in the same for two years or for a period of cohabitation if more than two years and in any event no later than five years (paragraph 42).

If he / she has minor children or disabled, have the right to continue living in the house of residence for a minimum period of three years .

This right, however, is less in case the surviving partner ceases to permanently dwell in the house of residence, or in the case of marriage, civil union or de facto cohabitation with another person.

• In cases of death of the tenant or his withdrawal from the lease of the house common residence, his / her partner has the right to succeed him in the contract (paragraph 44).
• The partner may in fact be appointed guardian, trustee or administrator of support, if the partner is declared interdict, incapacitated or administration support recipient (coma 48)
• The same right to compensation payable to the surviving spouse, in case of death of the partner actually arising in tort by one third (paragraph 49).
• The partner of the right to participate in the management and the family of the partner profits of the enterprise, as well as the assets acquired with the latter and the company increases in proportion to the work performed. The right of participation is not up when among cohabiting exists a company report or employee (Art. 230-ter of the Civil Code).
• The domestic partner law – set by the court in case of termination of cohabitation in fact – to receive other foods, if the verses in need and is not able to provide for themselves (paragraph 65).

In this case, the economic allowance amount is determined in proportion to the duration of coexistence and not more than what is necessary to ensure a decent existence of the beneficiary, taking account of his social position.

The cohabitation agreement

Paragraph 50 of Cirinnà Law also envisages the faculty, for in fact living together, to regulate the amounts relating to common life by signing a cohabitation agreement .The establishment of this private agreement (of which we speak in more detail in the article ” the cohabitation agreement “) – as well as modification and resolution – must take place, under penalty of nullity, by public deed or private deed authenticated by a notary or by a lawyer, to attest to their compliance with mandatory rules and public order.For the purposes of the enforceability against third parties, the notary or lawyer who received the document has to send a copy, within the next 10 days , the City of cohabiting residence for entry in the register provided on the basis of the so-called provisions. “Sorting master”.

The assessment of coexistence

Paragraph 37 provides that the determination of stable cohabitation is seen from the registry declaration of incorporation or change of a new cohabitation, the couple is forced to submit to the municipality in which is located the common residence, pursuant to arts. 4:13, paragraph 1, letter b) of Presidential Decree no. 223 of 1989.

Cohabitation is only with the presentation of this statement?

The practice of the major provincial capitals (Milan, Turin, Naples, Venice, Genoa) would go in this direction: in fact, they require living with the filing of the registration request from an appropriate population register, without which living together is not legally recognized.

According to the Court of Milan (order of 05/31/2016), however, the declaration would constitute only one of the de facto coexistence testing tool, not of the same constitution, since the Cirinnà paragraph 37 of the Law provides that such a declaration has the purpose of ascertain the “stable coexistence,” not to recognize the latter.

As a result, the rights provided by Law Cirinnà towards the cohabitants would apply to them at the time of the constitution of the new relationship, regardless of a statement (which still must be submitted as soon as possible).

IN SUMMARY

The Law No. 76 of 2016 ( ” Act Cirinnà “) recognizes and regulates the institute of coexistence in fact between “two people older united stably as a torque affective bonds and mutual moral and material assistance, not bound by kinship, affinity or adoption by marriage or civil union ” .

Among the main rights that the Law No. 76/2016 provides in favor of the partners include:

• The opportunity to visit your partner in prison (art. 38).
• Mutual legal visit , the assistance and access to personal information , in case of illness or hospitalization of the partners (art. 39).
• The right to appoint the other (written and autograph) as his representative with full or limited powers, in case of illness (for decisions on health) or death (for mode ‘body treatment and celebrations funeral);
• etc.

Household members in fact have the power to regulate the amounts relating to common life by signing a cohabitation agreement, drawn up by public deed or private deed authenticated by a notary or a lawyer.

For the purposes of ‘ assessment of stable cohabitation, the couple is obliged to present a registry certificate of incorporation or change in a new coexistence at the registry municipality where your home is located.

According to the practice implemented by the main Italian cities, such a declaration is a necessary element for the establishment of de facto cohabitation; while the Court of Milan, in a recent order, considered such a declaration a simple evidentiary tool stability of cohabitation, not essential to the recognition of the same.

The law firm Lawyer Marco Coscia offers private citizens who intend to establish a coexistence in fact, an accurate advice and comprehensive assistance for the drafting of the cohabitation agreement and / or the same authentication.

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