In this article on our notary website, I am going to deal in depth with the subject of de facto couple, specifically the situation of the unmarried couples in Catalonia. We also have a section where you can consult how to formalize a de facto couple in Barcelona.
Brief history
Currently unmarried couples are regulated in the Catalan Civil Code. A circle has been closed where the main reason for the 1998 reform - to legalize homosexual coexistence - no longer exists. Now with homosexual marriage, it no longer makes any sense to regulate homosexual couples. If homosexuals want to get married they can, and if they don't want to get married, why regulate a cohabitation in fact?
Heterosexual couples
This same argument is applicable to heterosexual couples, but the prevailing vision in the Ministry of Justice prevents seeing things as they are. The regulation on couples has been imposed on the basis of the existence of a cohabitation of more than two years, having a common child or accrediting the cohabitation by means of a public deed. From progressivism we have gone to carcundia.
In other words, if a couple wants to live their love outside the law, because they feel like it: it will be no. We are going to marry them, through the back door, and undercover. Today in an adult society, and mature this does not make sense. Imposing a legal regime on two people of legal age, without their consent, is simply old fashioned.
The vision of the courts
This intrusion into privacy has already been seen by the Constitutional Court and the Supreme Court, which understands that legal effects cannot be imposed on a common-law couple who do not have papers.
The jurisprudence of the Constitutional Court and the Supreme Court in Spain have firmly established the right to privacy as a fundamental right. This applies to everyone, whether they are married or in a common-law relationship.
According to the Constitutional Court, the right to personal and family privacy is guaranteed in the Article 18 of the Spanish Constitution. This guarantee implies that no one can interfere in the private life of another person without their express consent, and this right is only limited under very specific circumstances and always respecting the principle of proportionality.
The Supreme Court has followed this line of thought in its judgments. For example, it has maintained that the recording and disclosure of private conversations without consent is a violation of the right to privacy, even if the person recording is involved in the conversation.
This also applies to common-law couples. Members of a domestic partnership have the same rights to privacy as members of a married couple. The fact of being in a relationship does not give one person the right to violate the privacy of another.
It is important to note that a possible intrusion into privacy has legal consequences, including possible criminal, civil or administrative sanctions.
A fraudulent use
The new secular morality imposed in Catalonia for many years is more annoying and persecutory than the usual morality: this new morality condemns you to jail, or a fine. At least the usual morality stigmatized you with sin and hell, but there was always room for forgiveness after repentance even at the last moment. It is absurd to marry those who do not want to get married through the back door, because they do not want anyone to interfere in their affairs, or they simply do not believe in marriage.
However, a more abject use of the couple has appeared in recent years: the couple of convenience. It is about pretending an intimate relationship, going to the notary to sign a couple's document and then to the police to ask for papers.
It is the drift of an outdated progressivism. Instead of betting on a strong and socially valued marriage, we are betting on much more perishable de facto sexual unions. We are in the world of paradoxes.
Similarities between Domestic Partnerships and Marriage
Parental Responsibilities: Whether in marriage or in a common-law relationship, the obligations with respect to the children are identical. In the event of a rupture, the agreements on custody, food, visitation, etc., remain the same, only the judicial procedure varying.
Paid Work Permits: Members of a domestic partnership and spouses enjoy equality in terms of work leave, such as paternity/maternity leave, serious illness or death of the partner, and leave after marriage or registration of the domestic partnership. In private companies, these vary according to the collective agreement of each sector.
Other Shared Rights: Cohabitants also share rights similar to spouses in health care, rent and access to aid, scholarships and subsidies.
Health care in common-law couples
In Spain, healthcare for unmarried couples depends on the specific regulations of each Autonomous Community, but in general, cohabitants in a domestic partnership have access to the same healthcare as spouses in a married couple.
La General Social Security Law, in its article 221, contemplates the extension of the right to health care to «la person who lives with the owner and is in charge«, as long as a series of requirements are met, such as not exceeding certain income limits and not having the right to self-employment healthcare. In order to prove cohabitation and economic dependence, it is common to require the registration of the de facto couple in the corresponding registry.
Therefore, if these requirements are met, the member of the common-law couple who does not have their own right to health care can benefit from the health coverage of the other member, in the same way that a spouse would in a marriage.
Grants, scholarships and subsidies
In Spain, unmarried couples can access a series of grants, scholarships and subsidies, similar to those available for married couples. However, the requirements and conditions vary depending on the specific regulations of each Autonomous Community and the body that grants the aid.
For example, for certain aid, such as those for the purchase of a home, rent or social emergency aid, common-law couples are considered a cohabitation unit, just like married couples, especially if they have children in common.
Regarding scholarships and study grants, in general, the members of a common-law couple are considered as part of a family unit, depending on the specific regulations of the aid. To do this, it is necessary to prove cohabitation by registering in the register of common-law couples or by other means of proof.
In the field of Social Security, members of a common-law couple are entitled to certain benefits and aid if they meet certain requirements. For example, the death and survival benefit is granted to members of a common-law couple if they meet certain cohabitation and economic dependency requirements.
differences between both
Economic system: In a marriage, a matrimonial economic regime is legally established. However, in unmarried couples, there is no such regime, although the members make their own agreements to regulate their economy.
Income tax: The members of a common-law couple cannot file the income statement jointly, while in marriage it is possible. However, one of the partners with children could form a family unit and file the return jointly, excluding the other member who must file it individually.
Widow's pension: In the marriage, the surviving spouse is entitled to a widow's pension, given certain conditions. On the other hand, the requirements for the surviving partner of a domestic partnership are more specific and depend on the survivor's income and the existence of children in common.
Hereditary Rights: The Civil Code does not recognize inheritance rights for the survivor of a domestic partnership. However, some Autonomous Communities, such as Catalonia, have regulated these rights in their regulations, equating them to those of marriage.
It is advisable that a will be granted in favor of the other member of the de facto union. In addition to consulting with a family lawyer to understand the rights applicable in the Autonomous Community of residence.
De facto couples in Catalonia and inheritances
In Catalonia, the situation of de facto couples compared to the inheritances It differs depending on whether it exists or not will at the time of the death of one of the members. Here I explain how it works in both cases:
- With Will: If the deceased has left a will, the wishes expressed in this document will prevail, as long as they comply with the inheritance laws of Catalonia. In Catalonia, common-law couples have legal recognition and, therefore, a person can leave assets to his or her partner in the will. However, unlike the spouse, the de facto couple does not have the right to the legitimate inheritance, which is the part of the inheritance that cannot be freely disposed of and that is reserved for children and descendants, parents or ascendants, and in his default, the spouse. Therefore, if the common-law partner is named in the will, he will be able to inherit what has been assigned to him in this document.
- Without Will: In the event that there is no will, the rules of intestate succession (without a will) apply. This is where the situation for common-law couples becomes complicated since, in Catalonia, the common-law partner does not have the right to automatically inherit in the absence of a will as a spouse would. The assets of the deceased will be distributed among his closest relatives in the following order: descendants, ascendants, spouse and, failing that, siblings and nephews. The common-law couple is not included in this list of legal succession.
It is important to note that common-law couples may benefit from certain protections by making other legal arrangements, such as creating a will, joint property agreements, or life insurance, to ensure that the surviving partner is financially protected upon death. .
In addition, de facto couples registered in Catalonia could have certain rights in relation to the habitual residence they shared, but this does not automatically extend to other assets unless this has been established in a will.
It is fundamental that unmarried couples Make proper estate plans and consider all your legal options to ensure your rights and those of your partner. The specific situation may vary depending on individual circumstances and current laws, so it is always advisable to consult with a lawyer specialized in inheritance law in Catalonia for personalized advice.
Common-law Couple FAQ
The couple, in a de facto union, must have been living together for one to two years. The period depends on the Autonomous Community in which they register.
They have the same rights and obligations as married couples in everything related to custody, visits, alimony and other agreements. As for the compensatory pension, it depends on the autonomous community in which you reside and its regulations in this regard.
In marriage, the spouses have legally determined their matrimonial economic regime: community property, separation of assets or partition. However, in the domestic partnership there is no matrimonial economic regime of those regulated in the Civil Code.
Registration in the registry as a de facto couple does not cause legal effects on its members as marriage does.
It has the accreditation of the main public registration entity in the country. It guarantees the exercise of rights that are a consequence of the de facto union. Avoid fraud due to double registration of a de facto union.
By registering as a common-law couple, couples gain legal rights similar to those of marriage in areas such as inheritance, pensions and healthcare. This is crucial to ensure mutual protection and well-being.
Some of the advantages are the right to have work permits, more facilities to adopt, the right to a compensatory pension, tax reductions, health care and widow's pension.
Being a de facto couple does not give you the right to inherit. The right is given in the will, if your partner dies without a will, you do not inherit anything. The Civil Code does not regulate the members of de facto couples as one of the forced heirs when the other dies, unlike what it does with married people.
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Consultation more information about domestic partners in our Notary in Barcelona.
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