Civil Partnerships and Common law marriages: new regulation in the Italian judicial system

Civil Partnerships and Common law marriages: new regulation in the Italian judicial system

Renzo Calvigioni

The Law n.76, May 20th 2016, about «Regulation of the Civil Partnerships among people of

the same sex and regulation of the Common law marriages» entered into force on June 5th 2016, represented a particularly innovative regulation in the Italian judicial system, not to say a true revolution. The Law is composed by a unique article of 69 clauses, of what the first 35 deal with the Civil Partnerships and the remaining the Common Law Marriages: the first one examines exclusively the Partnerships among people of the same sex, the second one are about indiscriminately homosexual and heterosexual couples, in the way to guarantee some fundamental and inalienable rights.

Even if different from marriage, the regulation about the Civil Partnerships establishes a new

social condition, according to the definition of the law, devoted to homosexual couples, that can choose to proceed, in front of the civil status officer, to the establishment of the Partnership, and the recognition and the registration to all intents and purposes , the change in the civil status from bachelor or bachelorette to “civilly united”. This is, therefore, a really status change to which follows rights and duties similar to that ones resulting from the marriage for the heterosexual couples. The constitution of the Civil Partnership is preceded by a request of the parts and by a procedure of the civil status officer that check if they have the requirements requested (legal age and sex identity) and don’t subsist impediments foreseen by the Civil Code: it can happen in any Municipality chosen by each of the parties, in the presence of the two witnesses, without requesting other particular formalities.

At the moment of the establishment of the Civil Partnership, the parties can choose the separation of properties instead of the community of properties that correspond to the ordinary law, but can also choose to assume a joint surname, chosen between the ones of the parties themselves. It is foreseen the hypothesis that one of the parties can’t go to the civil status office due to a serious impediment or in case of imminent danger to life: in those situations the civil status officer will reach , with registers , in the place where is the prevented part or at risk of life. In the way to proceed to the establishment of the Civil Partnership, always in the presence of two witnesses. The foreign citizen that would like to establish a Civil Partnership will have to present the permission of the competent Authority of his country: some difficulties for the foreign citizens coming from countries where the partnerships among

people of the same sex are not legitimate, but the civil status officer will be able to evaluate and deepen such particular issues , to decide the procedure.

The marriages between people of the same sex celebrated abroad before the enter into force of the Law n.. 76/2016, will be transcribed into the civil status registers and will produce the same effects of the civil Partnerships. It is foreseen a facilitated procedure of divorce , because it isn’t requested a period of separation between the parties: it will be enough that one of the parties expresses a declaration in front of the civil status officer, showing his will to release the Partnership, in the way to permit , after a period of at least three months after this

declaration, to the parties to proceed to the dissolution of the union with a judicial review or, in the presence of the assumptions, with a negotiation assisted by lawyers or with an agreement in front of the civil status officer. For what concerns the Civil Partnerships it is foreseen a new civil status register added to those already existing.

The registration of the Common Law Marriages takes place, on the contrary, by the registrar

and regarding “two adult people permanently united by emotional bonds and mutual moral and material assistance, not bounded by kinship, relationship or adoption, by marriage or civil Partnership”: in other words two homosexual or heterosexual people bounded by affection and mutual assistance who live together in the same house, and are of single status and apply for the registration of their situation. The effects are not comparable to those of the marriage and of the Civil Partnership, even if there are some very relevant rights, that follows the registration of the common law marriages.

The Registrar, after having received the consensual and joined request of the involved people must solicit inspections, through the municipal police to check the cohabitation in a stable way. To discipline the patrimonial aspects, they can subscribe a cohabitation agreement in front of a notary or a lawyer, that after will be sent to the registrar who will write the data of such agreement in the interested identity and family record. The Common Law marriage will be dissolved if there are no more sentimental and couple bounds, even basing on a simple declaration of only one of the cohabitant, or if there is no more cohabitation, or for death, marriage or civil partnership of one of the interested.

We are dealing, therefore, about a new discipline, that recognizes and protect on one hand the

homosexual couples, whose partnership implies a change in the status similar to that one that follows the marriage, on the other hand the couples, without any sex distinction, bounded by sentimental bonds and of mutual assistance, who live together: the civil status officer and the registrar , each one for their competences , are called to perform a very prominent role in the implementation of the new rules, and to be the authors of a change that could continue during the following years.