De facto cohabitation is a form of recognized union, regulated legislatively in many countries and capable of providing protection and rights to unmarried partners. With the increase in international migration and unions between individuals of different nationalities, international de facto cohabitation has become an increasingly common reality. However, this type of cohabitation involves complex legal challenges, linked to regulatory differences between countries and implications in the areas of inheritance, taxation, and family law.

  1. Definition and Recognition of De Facto Cohabitation in Various Countries

In Italy, de facto cohabitation is governed by Law No. 76/2016, known as the “Cirinnà Law.” This law distinguishes cohabitation from civil unions, regulating the rights and duties of cohabitants without formal marriage or civil union registration. In other countries, the definition and recognition of de facto cohabitation can vary widely. In some states, such as France and Belgium, there are similar forms like concubinage and “legal cohabitation,” which provide some legal protection to cohabitants. Other countries, such as Germany, require formal registration of cohabitation to grant rights, while some, like Switzerland, do not provide protections for unmarried cohabitants.

  1. Legal Implications for International Couples

International couples in de facto cohabitation often face numerous difficulties due to differences in recognition and protection across legal systems. Among the main legal issues:

  • Mutual Recognition: One state may not recognize de facto cohabitation registered in another country, which can lead to jurisdictional conflicts, especially regarding inheritance, where succession rights may vary based on the state where the couple resides or where the cohabitant’s assets are located.
  • Residence and Immigration Rights: Many countries grant residence rights only to spouses, while de facto cohabitation is not always considered sufficient to ensure the right to family reunification. The European Union has made significant progress, particularly with Directive 2004/38/EC, which under certain conditions grants the right of residence to cohabitants of EU citizens. However, outside of Europe, cohabitants may not enjoy this right.
  • Inheritance Rights: Inheritance rights vary significantly. In Italy, cohabitants do not have mandatory inheritance rights and can benefit from the inheritance only through specific testamentary provisions. In other countries, such as France, cohabitation may provide minimal inheritance rights, while in Germany, cohabitants have no inheritance rights without a will.
  1. Tax and Social Security Aspects

The tax residence of international de facto cohabitants is often a source of dispute. Regulatory differences between countries can lead to issues of double taxation or, conversely, regulatory gaps that risk depriving cohabitants of certain tax benefits. In Italy, for example, cohabitants can share certain benefits, such as the transfer of a first home, but do not have access to survivor pensions, a right reserved for married couples. In other countries, cohabitants may be subject to separate taxation or benefit from certain allowances.

  1. Implications for Children’s Rights

If a cohabiting couple has children, additional legal complexities arise. Parental responsibility and visitation rights may vary depending on the children’s residence and the recognition of cohabitation. In many countries, cohabitation does not automatically grant guardianship rights to the non-biological parent, and in cases of international separation, the applicable regulations may vary depending on the children’s residence or citizenship.

  1. Termination of De Facto Cohabitation and Legal Consequences

The end of an international de facto cohabitation may lead to disputes over property division and maintenance obligations, especially if the partners come from different countries. In Italy, the Cirinnà Law grants the right to maintenance to the cohabitant in need, but this right may not be recognized in other countries. Furthermore, international couples face the issue of applicable law: in the event of a conflict, which state will have jurisdiction?

  1. Solutions and Legal Tools

To avoid legal conflicts, international cohabiting couples can adopt some preventive solutions:

  • Cohabitation Agreements: These agreements, allowed in several legal systems, enable cohabitants to establish mutual rights and obligations in case of separation or death, as well as property management for the couple. In Italy, such agreements are regulated by the Cirinnà Law.
  • International Wills: To address potential inheritance issues, cohabitants may draw up wills that comply with international standards, paying special attention to the 1973 Hague Convention on International Wills.
  • Tax and Residential Planning: Establishing a clear tax regime, with the assistance of legal and tax consultants, is essential to avoid tax conflicts and issues with local regulations.
  1. Reform Prospects and Conclusions

The increasing globalization and spread of international cohabiting couples call for greater legislative harmonization among countries. The European Union is making strides in recognizing civil unions and de facto cohabitation, but significant gaps remain in many other areas of private international law. Adopting an international convention that establishes minimum rights for de facto cohabitants could be an effective solution to protect international couples, promote mutual recognition of rights, and ensure equal treatment for cohabitants of different nationalities.