The concept of “family” has undergone important changes over the years. If before, be a family, from a legal point of view, was essentially meant a stable union of two persons of the opposite sex aimed at filiation, in recent years (in particular, in the last twenty years) this concept has undergone important transformations dictated by the ethical and cultural dynamism that characterizes modern society.
Not every cohabitation, that is, not every condition of two subjects who share common experiences without having been married, can generate a de facto family on the juridical level. Indeed, the element of “living together as a family” is needed: the single episodic event is not enough, but there must be a real communion of intent between cohabitants (characterized by stability); a coexistence “as if” one were husband and wife.
De facto family requirements
In order to be able to speak of a de facto family, it is necessary, in more detail, the existence of four important requisites: qualified cohabitation, recognition of the couple as a family in society, the stability of the emotional relationship that binds the cohabitants and the lack of a marriage certificate.
Relevance in the legal system of the de facto family.
With regard to children, following the issuance of legislative decree number 154/2013, our legal system no longer makes any distinction between legitimate children and natural children, with the consequence that their position in the legal system is in no way conditioned by being part of a de facto family. For the de facto couple, however, things change, since (as we will see better later) our legal system does not equate the internal and external relationships of the same to those of two subjects united in marriage. The legal relevance of the only qualified coexistence between two people, consequently, is given by special laws, such as, for example, those that allow access to medically assisted procreation or those that legitimize the cohabitant to request the appointment of the administrator. supportive for his partner. Other cases in which cohabitation assumes legal significance are represented by the cohabitant’s right to refrain from testifying in a criminal trial against his partner and the possibility of taking over the deceased partner’s lease, but the above are just few examples of possible de facto family impact over the legal system.
Relationships within the de facto family
Relationships within the de facto family do not undergo any difference with respect to those existing in “traditional” families, in particular between parents and children.
For the partners, however, there are no reciprocal rights and duties that our legal system places on the spouses. In particular, any disbursements of money made in favour of the de facto partner is considered, by our legal system as equivalent to a natural (and not legal) obligation arising from moral or social duties and not by the law.
The dissolution of the de facto family
If the couple is part of a de facto family decides to terminate their cohabitation due to disagreement, neither obligations nor reciprocal rights remain between the former partners. Everyone’s assets go back exclusively to those who bought them and the same goes for the house.
The cohabitation contracts
However, with law number 76/2016 cohabitation may be some way regulated by the so-called cohabitation contracts. In particular, these are agreements through which the de facto couple is given the possibility to regulate cohabitation, property relationships and some specific aspects of personal relationships, as well as the economic aspects of the possible cessation of cohabitation. In order to enter into a cohabitation contract, it is necessary that the parties are bound by an emotional bond and live together like husband and wife.
Death of a member of a de facto family.
When a member of the couple belonging to a de facto family dies, the same does not have inheritance rights recognized automatically by our legal system (as, however, happens for the spouse) and will be able to benefit from part of the deceased’s inheritance only by will and excluding the reserved quota rights of close relatives (children, for example).
In case you need assistance in ruling your de facto family VGS Family Lawyers are experts in drafting and negotiating cohabitation contracts as well as in the protection of interests of member of de facto family, not expressly protected or regulated by Italian Law.
For further information or assistance contact info@vgslawyers.com