What is the contract of cohabitation in Italy?
Cohabitants (homosexual or heterosexual) who want to regulate their financial relationships, relating to their life together, can do so through a written agreement which is called the “contract of cohabitation”.
The regulatory framework for this form of contract is found in Law no. 76 of 20/05/2016 which in regulating the property relationships between cohabitants (legal institution that complements marriage and civil union), in its second part, from paragraphs 50 to 64, focuses its attention on cohabitation contracts, taking care of its form and contents.
The prerequisite for stipulating the contract is the stable bond existing between the adult parties, regardless of whether they have the same or different sex, stably united by emotional ties and mutual assistance, moral and material, not bound by relationships of kinship, affinity, adoption, marriage or civil union.
To ascertain this link, reference is made to the personal data declaration of the establishment of a new family or new cohabitation.
The declaration of cohabitation can be presented in the municipality of residence together with the declaration of residence or subsequently, for couples who will form through cohabitation. For couples already resident and permanently cohabiting, the declaration can be submitted at any time.
What can regulate a cohabitation contract in Italy?
The cohabitation contract may contain:
- indication of the address of residence;
- the ways of contributing to common life, in relation to the substances and ability of each individual to work professionally or at home;
- the property regime of community of property;
- designation of the other as representative, with full or limited powers, in the case of incapacity of understanding and will, for decisions regarding health and in the event of death;
- indication of the cohabitant as future guardian, curator or support administrator, where the conditions exist.
The cohabitation contract cannot be subject to any term or condition.
Cohabitation contract in Italy: What are the legal rights of unmarried couples?
Cohabitants have equal rights, in the same way as spouses, in the cases provided for by law, or in relation to:
- Illness, hospitalization or death;
- Housing. The cohabitant of the owner of the house who passes away can continue to live in the house for two years or for a period equal to the cohabitation period, provided that it does not exceed 5 years. These conditions cease to apply if the cohabitant gets married or stops living permanently in the house of common residence;
- ERP housing assignment;
- Work, as participation in the profits of the family business and in the goods purchased with them, as well as in increases commensurate with the work performed, is due to the cohabitant who works permanently in the other cohabitant's business;
- Appointment as guardian, or curator or support administrator, for the cohabitant who is declared interdicted or disabled.
The following cases constitute the termination of the cohabitation contract:
- agreement of the parties;
- unilateral withdrawl;
- marriage or civil union between cohabitants or with a third person;
- death of one of the contracting parties.
In the event that the cohabitation contract provides for the patrimonial regime of community of property, its termination involves the dissolution of the community itself.
Cohabitation contract with a non-EU citizen
The non-EU citizen who has stipulated a cohabitation contract with an Italian citizen falls into the category of “facilitated family members of an EU citizen” (ex art. 3 paragraph 2 letter b of Legislative Decree 30/2017), in order to facilitate the entry and the residence in Italy of the partner with whom an EU citizen has a stable and duly certified relationship.
Pursuant to art. 10 paragraph 3 letter d of Legislative Decree 30/2007, the non-EU foreigner may come to Italy for a reason that is among those contemplated for the issuing of a valid residence permit. Otherwise, he would not be allowed to register in the registry office, a prerequisite for proving stable cohabitation and therefore requesting a residence permit as a family member of an EU citizen.
In other words, de facto cohabitation can only be done by people who are already legally resident; ergo, the foreigner must already meet the requirements to obtain a residence permit that allows him to register in Italy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.