Actual family and cohabitation: possible protections of unmarried partners

The lawyers of the Cecatiello Law Firm, through years of practice at the Court of Milan, know the difficulties they encounter every day. unmarried couples in our country.

The biggest problems are when the ties end, when one of the partners has health problems or, in the worst cases, fails.

The Resolution on Respect for Human Rights of the European Union dates back to 16 March 2000, which asked Member States to guarantee single-parent families, unmarried couples and same-sex couples equal rights with respect to couples and families. traditional.

The European Parliament asked member states and therefore also Italy to introduce legislation on tax, property and social rights matters.

In Italy, to date, in spite of the numerous legal proposals and the timid attempts made by some local administrations, there is no protection given by the law to cohabitation, no effective measures have yet been taken to guarantee the equal rights advocated by the European Parliament.

But what happens in other European countries?
In England there have been the major actions of the legislature to protect the de facto family.

By way of example, in the matter of inheritance, the deceased's partner has the right to obtain a share of the inheritance; in terms of leases, the surviving cohabitant, if the cohabitation has lasted more than one year, has the right to take over the contract of the property already occupied by the couple. As for personal relationships, it is possible to decide on de facto relationships, through contracts regulating the rights and obligations, stipulated between the parties.

What can be done, in Italy, to protect partners who do not want or can not get married?
Thanks to the experience gained in the last few years through the study and the handling of concrete cases, the problem has been positively solved and the protection of de facto couples has also been guaranteed through the use of the trust.

The trust is an institution of the Anglo-Saxon common law legal system, which serves to regulate a multiplicity of legal relationships of a patrimonial nature such as, among others, the isolation and protection of assets, controlled asset management, protection of the assets of a weak subject and / or minors. Other common applications are in succession, pension, corporate and tax law.

The trust is in effect recognized also in Italy and proved very effective precisely for the protection of cohabitants.

Clearly, a careful evaluation of the individual concrete case, of the financial conditions of the partners, of the life choices and aspirations of the couples is necessary to make the protection that the trust guarantees in the abstract feasible.

Waiting for a law that in Italy also guarantees couples de facto the trust in many cases is an effective protection for the free choice of those who do not want or can not get married.

Divorce without separation

The European Regulation n. 1259/2010 which introduced great changes in the law applicable to divorce and personal separation.

Its application allows, among other things, the spouses both Italian citizens who habitually reside abroad to obtain a divorce directly rather than proceeding to personal separation first.

It is possible for an Italian couple, after three months of marriage, to ask for a divorce in Italy by applying for example the Spanish law.

There is also a possibility for spouses to choose the law applicable to divorce through an agreement.

The agreement designating the applicable law can be concluded and amended at any time, but at the latest when the court is seised. However, if required by the law of the forum, the spouses may designate the applicable law also in the course of the proceedings before the court, in which case the latter shall file such designation in accordance with the law of the forum.

The agreement that determines the applicable law must be written, contain an indication of the date and be signed by both spouses. The form of a public deed is not necessary.

Article. 4 of the regulation provides that the designated law also applies where it is not the law of one of the States that have adhered to the regulation; this means that, if there are connection criteria, US law or, for example, that of another non-EC country can be applied.