We compare both legal formulas so that you can take all the variables into account before making a decision
After a certain period of stability in a relationship, we have all wondered what the next step should be to formalize the relationship; to get married or to enter into a civil partnership?.
Choosing one legal formula over the other should not be taken lightly, but rather the subject of careful consideration, because contrary to popular belief, they are in no way comparable. Furthermore, the Supreme Court's jurisprudence, in line with that of the Constitutional Court, has taken care to clarify thata de facto union is an institution that has nothing to do with marriage.<, aunque una y otra se sitúen dentro del derecho de familia.
Regarding its legal framework , marriage is regulated by a state law that defines it as "the stable and permanent union of two people of the same or different sex" – Article 44 of the Civil Code. The Supreme Court defines a de facto union as " the free, public, and stable union of two people regardless of their sexual orientation, provided they maintain a relationship of affection analogous to marriage, and is incompatible with any marriage of the cohabiting partners ."
Therefore, although both institutions share some effects, it is important to consider that they also differ in several aspects, especially regarding inheritance, tax, and the division of joint assets. Furthermore, there is no national law regulating unmarried couples; each Autonomous Community has its own legislation, and not all of them grant the same rights (in Catalonia, the applicable law is Law 25/2010 of July 29, from Book Two of the Catalan Civil Code, relating to persons and the family). For this reason, it is advisable that any couple considering taking the next step in their relationship seek legal advice before choosing one path or the other to avoid unpleasant surprises.
Regarding the similarities between the two options, we can list the following:
- Death without a will: of one member of a civil partnership; this will depend on the regulations of each autonomous community. Aragon, Catalonia, Galicia, the Basque Country, Navarre, and the Balearic Islands equate the inheritance rights of the deceased partner to those of a spouse. In Madrid, the situation is different; this must be specified in the will because cohabiting partners do not have the right to inherit from their partner, so it is necessary to make a will respecting the inheritance rights of the forced heirs.
- Widow's pension: there are slight differences in the eligibility requirements. For example, in the case of a civil partnership, it is necessary to have been registered in the Civil Partnership Registry for two years, provide verifiable proof of a five-year cohabitation period prior to the death, and ensure that the survivor's income does not exceed a limit established by Social Security. In the case of a marriage, the spouses will be entitled to the pension regardless of the duration of the marriage and regardless of the survivor's income.
- Children in common: In terms of rights and obligations as parents, there is no legal difference between a civil partnership and marriage. The rights of children are protected in all areas and in all communities.
- Adoption: Article 175 of the Civil Code in its section 4, according to the wording given by the recent Law 26/2015, of July 28, modifying the system of protection of children and adolescents, regulates the capacity for joint or successive adoption by both spouses or by a couple united by an analogous relationship of affection to the conjugal one.
- Paid leave: Cohabiting partners, like spouses, can take leave from work in the event of serious illness or death of the other partner. Similarly, both spouses and registered domestic partners are entitled to the same paternity and maternity leave.
Regarding the differences, the following should be highlighted:
- For tax purposes: members of a civil partnership cannot file joint income tax returns.
- Holidays for joining a civil partnership: the Workers' Statute does not contemplate it for the civil partnership, unless the Collective Agreement to which the worker is attached provides for it.
- Breakup of a de facto partnership and compensatory allowance: for the disadvantaged partner: this is expressly regulated in Aragon, the Balearic Islands, Catalonia, Cantabria, Navarre, and the Basque Country. In the other autonomous communities, and if no agreement has been reached, the matter will be taken to court for a determination of whether or not the right to the allowance applies.
- Economic regime: the default regime for unmarried couples is neither community property nor separate property. However, as in marriage, the partners can agree upon and register a contract specifying their preferred economic regime.
- Donations: In the case of donations, cohabiting partners (common-law partners) do not enjoy the regional tax exemptions that spouses do. However, both spouses and cohabiting partners can access subsidies, public housing, grants and scholarships, and tax exemptions at the regional level.
- Healthcare assistance: the unmarried couple will be able to enjoy healthcare assistance as long as they demonstrate continuous cohabitation for one year by registering in the Registry.
- Dissolution of the Couple: while marriage is dissolved by the death of the spouse or by the passage of three months since its celebration at the request of either party (without it being necessary to allege any cause), de facto unions are dissolved by mutual agreement (notifying it and registering it in the Registry), by unilateral decision of one of the members of the union, notified to the other by any of the forms admitted in Law, by death of one of the members, by de facto separation of more than six months or by marriage of one of the members.
- Leases: In the event of the death of the contract holder, the Urban Leases Law contemplates the right of real subrogation of the de facto couple, provided that two years of cohabitation are proven by registration in the Registry.
Do you have any questions about this topic?
Our team of expert advisors will help you resolve any issues related to our services.
Contact us now
A graduate in Law from the University of Barcelona, she also completed a Master's degree specializing in Labor Law and Social Security at the Barcelona Bar Association. She began her professional career as an intern while studying and later joined the Navarro Law Firm as an employment lawyer, advising companies nationwide on labor law matters and representing them before the Labor Courts, the Labor Inspectorate, in conciliation proceedings, etc. In February 2017, she joined Àmbit Jurídic i Econòmic as a professional partner after extensive experience as an employment lawyer.
Latest posts by Laura Rodríguez Nuñez
(see all)
Related
