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

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)3“Nec 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 separatur” 5- 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