Civil Unions and Cohabitations Under the New Italian Law

This year, with Law no. 76/2016, the Italian Parliament introduced same-sex civil unions. The measure puts an end to a delay by Italian legislators which was no longer justifiable, especially in reference to the vast majority of Western countries, which passed laws protecting the rights of unmarried and/or same-gender couples several years ago.

The Italian law, however, does not introduce the institution of marriage between persons of the same sex, as opposed what happened in other European and North American countries. For example, English law, for more than a decade, contemplates civil partnerships (not accessible by heterosexual couples), and with the Marriage (Same Sex Couples) Act passed in 2013, also allows marriage for same-gender couples.

In Italy, on the contrary, marriage remains solely a legal union between man and woman, while same-sex couples can enter into civil partnerships. The two institutions remain distinct, and have some differences, which relate mainly to the act which gives rise to the bond and regulates family names. Subject to these differences, however, the system of personal and property relations between the two parties is largely corresponding to that of married couples. Also couples joined by a civil partnership have mutual obligation of moral and material assistance, as well as the obligation of cohabitation (while the law is silent on the duty of fidelity, present in the marriage contract). Moreover, what for couples united in marriage is the obligation to contribute to the family's needs, for people united in civil partnerships becomes anobligation to contribute to the "common needs."

The issue of parent-child relations remains sensitive, and in particular the legal discipline of the relation between a child and the partner of the biological parent, who often plays the role of "social parent". The opposition in Parliament against finding a solution to the problem has been such that the law does not introduce new rules in this regard, thus leaving a wide area subject to interpretation by the Courts.

In addition to civil unions, there was, albeit only partially, a regulation of cohabitations, namely unmarried couples living together free of any legal bond. It's a phenomenon that has grown in recent years, both as result of the frequent choice not to marry, and as byproduct of the accentuated "instability" of marriages, whose crises often lead to "second" or "third" family households, based on simple cohabitation rather than on an additional marriage bond. Under the new law, live-in partners can decide whether or not to legally register their cohabitation by agreement (in the so-called "cohabitation contract").
If the provisions of Law 76/2016 about civil unions can benefit from an overall positive judgment from a technical point of view (if only because the law does little more than recalling the applicable discipline of marriage), the articles devoted to cohabitations appear to be less precise and leave room for some concern. Indeed, the new regulation of cohabitation is in fact at times fragmented and uneven, raising a number of theoretical and practical questions, which makes all the more uncertain the already complex and constantly evolving legal terrain of family relationships.