Forms of unmarried couples in the EU States

Author:Amelia Diaconescu - Iulia Fetita
Position:Senior Lecturer, PhD, Spiru Haret University, Romania, Faculty of Juridical, Economical and Administrative Sciences, Craiova - Senior Lecturer, PhD, Spiru Haret University, Romania, Faculty of Juridical, Economical and Administrative Sciences, Craiova
Pages:93-100
SUMMARY

In principle, there is no concept that clearly defines a couple that is not married. The terms used to describe these situations, at a legal level in the EU states are numerous and leave place for interpretation regarding their meaning: co-habitation, concubinage, free union, unmarried couple, de facto couple, and registered partnership. The majority of the EU member states have not yet inserted a general definition of the “unmarried couple” in their national legislation, this concept being rather defined by the jurisprudence which either stipulated that there is a concubinage when two persons live together in a stable and continuous way (it’s the case of France), to when this union is characterized by a “residential, economic and sexual residence”, where the main difference between union and marriage is exclusively the couple’s will regarding this relationship (it’s the case of Austria, Belgium and Greece). From a comparative study of the member states’ internal law, we may notice that there are two categories of unions: the unmarried couple, with no formality involved, “the de facto couple”, “concubinage”, “co-habitation”, “free union” and the unmarried couple, tied by a contract or a registered partnership issued by a public authority (contract-partnership and institution-partnership)

 
CONTENT
Forms of unmarried couples in the EU states 93
FORMS OF UNMARRIED COUPLES IN THE EU STATES
Amelia DIACONESCU,
Senior Lecturer, PhD
Spiru Haret University, Romania,
Faculty of Juridical, Economical and Administrative Sciences, Craiova
amy_bbe@yahoo.com
Iulia FETITA,
Senior Lecturer, PhD
Spiru Haret University, Romania,
Faculty of Juridical, Economical and Administrative Sciences, Craiova
fetita.iulia@yahoo.com
Abstract
In principle, there is no concept that clearly defines a couple that is not married. The terms used
to describe these situations, at a legal level in the EU states are numerous and leave place for
interpretation regarding their meaning: co-habitation, concubinage, free union, unmarried couple, de
facto couple, and registered partnership. The majority of the EU member states have not yet inserted
a general definition of the “unmarried couple” in their national legislation, this concept being rather
defined by the jurisprudence which either stipulated that there is a concubinage when two persons
live together in a stable and continuous way (it’s the case of France), to when this union is
characterized by a “residential, economic and sexual residence”, where the main difference between
union and marriage is exclusively the couple’s will regarding this relationship (it’s the case of
Austria, Belgium and Greece). From a comparative study of the member states’ internal law, we may
notice that there are two categories of unions: the unmarried couple, with no formality involved, “the
de facto couple”, “concubinage”, “co-habitation”, “free union” and the unmarried couple, tied by a
contract or a registered partnership issued by a public authority (contract-partnership and
institution-partnership)
Keywords: concubinage, free union, non-marital relationships, patrimonial relationships
For a long time, it has been considered that people who do not take part in the
family organization based on married are outside the law1.
In the Roman law, concubinage – concubinatus – was based on the social
inequality of the two concubines, reason why they were lacking the connubium,
meaning the right to conclude a legitimate marriage, based on the ius civile. In this
situation there were, for instance, the unions between patricians and plebeians,
until Lex Canuleia, the ones between the liberti and ingenui and later the liberti and
1 P.Voirin, G.Goubeaux, Droit civil, Tom I, 27é ed., LGDJ, Paris, 1999, pag.130
Law Review vol. VII, special issue, December 2017, p. 93-100
94 AMELIA DIACONESCU, IULIA FETITA
senators, or between soldiers and their concubines, as long as they were enrolled in
the military or between the citizens and persons who had a job considered to be
dishonorable (actors, fighters in the arena, etc.) For the Romans, the concubinage
was a union between a man and a woman, with certain effects regulated by the
law, which copied in a certain measure marriage2. Concubinage had a spike in the
Empire period, as a special institution, which differed from the civil de facto
marriage (justae nuptiae) and the marriage according to the gentile law
(matrimonium juris gentium), regulated by then. Concubinage was not punished by
the Roman law, as it happened for other unions between a man and a woman
(fornication, incest)3Nec adulterium per concubinatum ab ipso comititur nam quia
concubinatus per leges nomen assumpsit extra legis poenam est: ut et Marcellus lib.7
Digestorum serisit”–Concubinage is not a sin, because concubinage takes its name
from the laws and it is outside their punishments – wrote Marcellus in the 7th Book
of his Digests. We know that there were numerous obstacles to marriage in the
Roman law, dictated by political reasons, Concubinage was not subject to any of
them, but the obstacles dictated by ethics prevented such union from taking place.
Thus, concubinage, the same as marriage, was rightfully concluded only between a
puber and a nubile, namely a man of 14 years and a woman of 12. The legal expert
Ulpian showed that: Cujus umque aetatis concubinam habere posse palam est, nisi minor
annis duodecim sit4. It is obvious that anyone may have a concubine of any age, the
only condition was to be older than 12.
Respecting the principle of monogamy, a married man could not have a
concubine at the same time and the one that was not married could not have two
concubines at the same tine: “Concubina igitur ab uxore solo delectu separatur5- The
concubine does not differ from a wife other than through intention.
Depending on the social status of the woman, there was a presumption that
she was either a wife or a concubine: the ingenuous woman from a good and
hones family was considered to be a wife and needed a written proof that would
certify she was only a concubine and the liberta was presumed to be a concubine.
In 887 a.C. under the influence of the Christian church, the concubinage is
forbidden through a Constitution of the emperor Leon the Philosopher “Ut
concubinam habere non liceat Nobody is to be allowed to have a concubine
anymore. Despite all these, there were always couples who lived together without
being in a civil or religious marriage. At the time when the first Civil Codes were
written, these situations were intentionally ignored.
Before the 1970s, free unions were mostly not included in the statistics outside
the local communities, so that there is few statistical data regarding the co-
2 Ge.Danielopolu, Explanation of Justinian's Institutions, Imprimeria de stat, Bucharest, 1911,
pp. 219 et seq.
3 Ge.Danielopolu, op.cit., pag.220
4 Ulpian, De concubinis, L.1, 4 D
5 Paul, Sententiae, Book II, t.20, 1.
Forms of unmarried couples in the EU states 95
habitation manner. For instance, in the Great Britain, there are proofs in the
registries that the stable unions would often obtain the status of legal
marriages6.Co-habitation, after the termination of a marriage or between
marriages, is not a recent one and it is normal if we think that in the periods when
the divorce was not easily achievable, people chose to co-habitate.
After 1970, both in Europe and the US, the preference for concubinage became
so frequent that it significantly shook the social attitudes that would condems this
way of habitation7. The increase in the number of unmarried couples and the
number of children that resulted from free unions determined, on one hand, a
certain acceptance when speaking about this issue and on the other hand, the law
maker started to approach, step by step, in its regulations the concubines’ co-
habitation relationship8. The de facto union was a choice of the life style, as many
couples wanted to avoid marriage without knowing the rights and obligations that
resulted from this.
Law does not recognize the de facto union, considering the concubines to be
two unmarried persons, without any connection between them. There are many
important differences between the rights and obligations of a married couple and a
couple found in a de facto union.
REGISTERED RELATIONSHIPS
Although a trend emerged pushing for a regulation and granting rights in the
co-habitation situation – from Norway to Catalonia – the countries from the
Western Europe are significantly different in the approach to the issue. The
Scandinavian laws regarding the registered partnerships are restricted to same sex
persons, the heterosexual co-habitation being treated in a different way9. On the
contrary, laws from France and The Netherlands cover a range of relationships, but
they substantially vary when it comes to content. In other countries, an inclusive
legislative response came slower. In Germany, there was a strong opposition, in
the recent past, regarding an improvement in the status of extra-conjugal
relationships. In England, the Legislative Commission deliberated since 1994 on
the property right in the case of co-habitation.10. The closeness between the free
union and marriage was performed in the interpretation of art. 8 from the
European Convention of Human Rights, which states that any person has the right
to have their family life respected. If initially the jurisprudence of the Court had in
6 K.Kiernan, Cohabitation and raising of children outside marriage in Western Europe, in law,
strategy and family, vol.15, no.1, 2001, p.12
7 I.Mitrofan, C.Ciuperca, Injuries in Psychology and Family Psychosocialism, Press Mihaela SRL,
Bucharest, 1998, p.56
8 G.Lupsan, op.cit., p.115
9 D.Bradley, Family Law and Political Culture, London, Sweet and Maxwell, 1996, pag.95-105,
151-160, 213-222
10 Law Comission, Annual Report, 1994, London, MSO, 1995, pag.44
96 AMELIA DIACONESCU, IULIA FETITA
mind only the relationships between spouses when talking about ‘family” and the
relationships between the latter and their underage children, step by step the
notion of “family life” extended on the family relationships existing in fact, namely
the family relationships between concubines.
In the US and the common-law countries, free union is not recognized as
marriage by none of the states, but in some of these states, there are work-arounds
offered by the application of the equity principle that might give similar rights and
obligations to the ones resulting from the conclusion or termination of marriage.
PERSONAL RELATIONSHIPS OF THE UNMARRIED COUPLE
Around 1970, the legislations of the West European countries intervened in
two ways. Firstly, they introduced dispositions regarding co-habitation in the laws
referring to social security and fiscality. This took place in most of the member
states of the EU, under different shapes. Secondly, certain legislations adopted
general norms on co-habitation, either by defining the co-habitation concept and
providing general rules in the matter, or by introducing a new juridical concept
that would regulate these “family” relationships: “registered partnerships”. At the
same time, co-habitation outside of marriage is mentioned in the constitutional
framework of the majority of the West European states.
In Greece, the right to the free development of the personality, consecrated in
art.5 par. 1 of the Constitution leads to the recognition of the parties’ freedom to co-
habitate without marriage, but no particular juridical protection was provided.
In Austria, the Supreme Court gave all the unmarried persons a personal
constitutional right, to live in a relationship outside marriage: this right is limitated
to the different sex couples only.
In Spain, the Constitutional Courts decided that the unions of unmarried
persons cannot be excluded from social, economic and juridical protection granted
to the family, by art. 39 of the Constitutions, but the juridical protection is different
for the married couples compared to the unmarried ones.
In Portugal, the law maker introduced several modifications to the Civil Code,
in order to be adopted by Constitution.
There are also countries whose legislations are not favorable to the un married
couples. In Ireland, the constitutional concept of “family” is limited to the family
based on marriage. The co-habitation contracts are, by consequence, considered to
be against the constitution and non-applicable, because they would violate the
public order.
In Germany, the constitutionality “Lebenspartnerschaftsgesetz” (act that
allows to set up a registered partnership for the same sex couples) was contested;
in 2002, it was ruled to be constitutional.
As long as the legislation and the legal decision on the topic were not based on
constitutional arguments, the fundamental principles regarding the freedom to
choose, the equal treatment and public order played an important role in
Forms of unmarried couples in the EU states 97
developing this domain of the law. The principle of equal treatment played a
double role. On one hand, it is admitted in the majority of states, which do not
want discrimination between the married and unmarried couples. In other
countries it is explicitly admitted that the unmarried couples should be free to co-
habitate, without being subject to the legal obligations of marriage, if they want so.
On the other hand, the equal treatment translated in certain legislation the
principle of non-discrimination between the homosexual and heterosexual
relationships. It was this desire to particularly reduce this discrimination that led to
the introduction, in the legislation from different states, of the registered
partnerships. At the same time, certain states do not accept the idea of an equal
treatment between the homosexual and heterosexual couples. In these states, the
equal treatment ways between the married and unmarried couples are reserved
explicitly to the heterosexual couples. Many legislations introduced the non-
discrimination between children who were born within or outside the marriage,
which led to the extension of the marriage rules for unmarried couples with
children, such as the topic of occupying the family home after the relationship
ends.
The moral condemnation of co-habitation only plays a role in the Irish law.
The constitutional protection of family is limited to the married couples and the
distinction between the homosexual and heterosexual couples originates from the
same regulations, especially that it is a relationship that has nothing to do with
parents and children’s education.
Different types of non-marital relationships
The phenomenon of non-marital relationships may be classified depending of
its different shapes. In its most pure shape, a non-married couple is a couple that
lives together by their own will and this relationship is not officialized. The
officialization intervenes when a non-married couple organizes their relationship
by signing an agreement. In this regards, a recent development in different
European legislations shapes up: an un-married couple is given the opportunity to
“register” their relationship. Thus, we may establish a distinction: on one hand, the
legislative systems where partners establish a co-habitation contract which may
then be registered by the government authorities and on the other hand, the
juridical systems where partners may set up a registered partnership. The most
important distinction between the “registered contract” and the “registered
partnership” is that the registration of a co-habitation contract is not an obstacle in
the way of a possible subsequent marriage with another person and has no effect
on the marriage status.
Today, the traditional concept on marriage is being discussed by the specialists
and the civil society. Without talking about polygamy, known in the juridical
systems from outside Europe, the traditional concept on marriage – juridical
relationship between a man and a woman – was contested, from the moment when
98 AMELIA DIACONESCU, IULIA FETITA
a state allowed the marriage between two persons of the same sex. Even if we
cannot talk, in the exact sense of the work, about an “unmarried couple”, the
unionbetween same sex persons was categorized as “marriage” in three European
states, this phenomenon posing the issue of knowing if such marriage will be
recognized with the same juridical status in the other states. If the marriage status
will not be recognized, which is the position of the couple who form a “married
couple” in certain states of origin and which is considered to be a concubines
couple in the other states?
The unmarried couple
Generally speaking, there are no clear concepts that would define unmarried
couple. Living like this does not bring up specific legal consequences. In certain
legislations there are dispositions regarding the legal status of the unmarried
couple, in very diverse domains (administrative, social, criminal or civil law). In a
few EU member states, the situation of the unmarried persons living together, but
who have not taken any measure to formalize their relationship brings up legal
consequences.
In France, jurisprudence developed a co-habitation concept which led, in 1999,
to the introduction of a « concubinage » definition in the French Civil Code (art
515-8). There is concubinage when two persons (irrespective of their gender) live
together in a stable and continuous manner.
Sweden introduced two laws regarding co-habitation in 1987 : the first one
referred to the properly on the common residence and the home goods belonging
to the heterosexual co-habitants and the second one targets the homosexual co-
habitation and it extended the applicability of certain laws to the homosexual
couples too.
Portugal created in 1999 a unitary legal system for the de facto union: Law no.
135/1999 referring to the position of the persons living together for more than 2
years. This law contains especially norms from the social, fiscal administrative
domains, but it also contains equally certain dispositions on the protection of the
couple’s home in case of death or termination of the co-habitation. Basedon this
law, an increased social protection was granted through a subsequent norm – Law
no. 7/2001 – applicable to heterosexuals or homosexuals that live in a couple.
Even if most of the member states of the EU have not inserted a general
definition of the “unmarried couple” in their legislation, a concept is shaping up.
The Austrian law does not contain a special definition for the phenomenon,
but the jurisprudence offered a notion to the unmarried couple: « aresidential
economic and sexual residence ». The Austrian Law highlights the fact that the
main difference between marriage and co-habitation is represented by the
exclusively voluntarycharacter of the unmarried couple’s relationship. The will of
the parties is to live together with no commitment, in a legally undefined manner.
Forms of unmarried couples in the EU states 99
This notion of the totally voluntary relationship is found in the law of other EU
member states.
In Greece, the non-marital co-habitation is considered to be supported by a
constitutional disposition allowing each person to freely develop their personality.
In Belgium, the de facto union or concubinage is the situation when two people
live together without any obligation. In the Great Britain and Germany, there is
still no concept that defines the unmarried couples. A German report described the
cohabitation law (which refers to a registered partnership) as a “patchwork” of
rules: a few statutory dispositions, some dispositions that are applied by analogy
to the co-habitans and rules established for the judge.
Marriage between same sex persons
NETHERLANDS: In April 2011, the Netherlands becomes the first country
that allows homosexual people to get married – in a civil ceremony – and adopt
children.
BELGIUM: Marriage between same sex people is legalized in 2003, with some
restrictions. The same sex couples received the permission to adopt children in
2006.
SPANIN: The socialist government legalized the marriage between same sex
people in July 2005. The gay couples were allowed to adopt children, irrespective
of their marital status.
NORWAY: All couples received equal rights in January 2009, allowing them to
get married, adopt children and use assisted reproduction technologies.
SWEDEN: Same sex couples were allowed to get married – in civil or Lutheran
ceremonies – in May 2009. Adoption is legal for everyone starting with 2003.
PORTUGAL:Marriage between same sex persons is legal from June 2010, but
the adoption is not.
ICELAND: Same sex persons marriages were legalized in June 2010, and the
adoptions by the gay couples in 2006.
DENMARK: Starting with 2012, same sex people were allowed to get married
in Lutheran ceremonies. Denmark was the first country in the world to legalize
civil unions of the same sex couples, in 1989
FRANCE: Marriage between same sex persons and adoptions by homosexual
people were legalize din May 2013.
ENGLANDand WALES: A law that authorizes marriage between same sex
people was adopted in July 2013, followed by SCOTLAND in February 2014.
Northern Iceland is strongly divided on this topic.
LUXEMBOURG: Marriage between same sex people was legalized in January
2015 and the Prime MinisterXavier Bettel married his partner in May 2015.
IRLEAND: Equality regarding marriage was authorized by referendum in
May 2015 and became a law in October.
100 AMELIA DIACONESCU, IULIA FETITA
FINLANDA Voted for equality regarding marriage in 2014 and the law is
about to be enforced in 2017.
SLOVENIA: Electors rejected the marriages between same sex persons by
referendum on the 20th of December 2015, rejecting a Parliament decision from
March to legalize them. Slovenians said “no” in a previous referendum in 2012 as
well.
REFERENCES:
1. P.Voirin, G.Goubeaux, Droit civil, Tom I, 27é ed., LGDJ, Paris, 1999
2. Ge. Danielopolu, Explicatiunea institutiilor lui Justinian, Imprimeria statului,
Bucuresti, 1911
3. M. Jakota, Drept privat roman, Editura Fundatiei “Chemarea”, Iasi, 1997
4. K. Kiernan, Coabitarea si cresterea copiilor in afara casatoriei in Europa
occidentala, in Lege, strategie si familie, vol.15, nr.1, 2001
5. I. Mitrofan, C. Ciuperca, Incursiuni in psihologia si psihosexualitatea familiei,
Editura Press Mihaela SRL, Bucuresti, 1998
6. D. Bradley, Family Law and Political Culture, London, Sweet and Maxwell,
1996
7. Law Comission, Annual Report, 1994, London, HMSO, 1995