It’s been discussed for years, and the debate continues today, inflaming various political parties in Italy and Europe. Meanwhile, in the past few months, civil unions have become a reality in our country. Now, same-sex couples who wish can enter into a civil union before an official and enjoy the same rights and obligations, albeit in different forms, as married couples.
Civil unions, while a positive step forward for the protection of cohabiting same-sex couples, are currently not comparable to marriage. This institution shares many similarities with marriage, but also several structural and conceptual differences.
But what do we mean when we talk about civil unions? How are they celebrated, and what rights and duties do couples who decide to enter into a civil union acquire with this choice? Let’s take a closer look at this new institution, recently introduced in our jurisdiction and approved by Parliament a few months ago.
On May 11, 2016, Parliament passed a law based on a bill signed by Senator Monica Cirinnà, entitled “Regulation of civil unions between persons of the same sex and regulation of cohabitation.” The law allows same-sex couples to enter into civil unions and enjoy certain rights that previously only existed for heterosexual married couples.
The debate surrounding this law, which came to light after considerable controversy and bitter political clashes, touches on a variety of topics, ranging from the defense of marriage in its religious sense, where two people of different sexes come together, to the possibility of opening the way to adoptions, a possibility not yet contemplated, even for same-sex couples.
But how do civil unions work? And who can benefit from them?
The union takes place in the presence of a state official and two witnesses, and only adults can participate. The union will then be registered in the appropriate civil registry office, along with the union documents, personal details, and property regime. Persons entering into a civil union may choose a common surname.
Civil unions are ineligible for persons who are already married or have already entered into another civil union, relatives, and persons suffering from mental illness, persons convicted of the murder or attempted murder of a previous spouse, and persons whose consent has been coerced for any reason.
Civil unions and marriage: similarities and differences
The question many are still asking, even months after the law was passed, is: can civil unions be considered equivalent to marriage? The answer is no: civil unions, despite having similar rights and obligations, cannot be considered equivalent to marriage in their entirety.
In marriage, the use of the man’s surname as the common surname is mandatory, and a period of time ranging from six months to a year is required to end the union. In civil unions, it is possible to choose the surname to use in common, but six months are sufficient to dissolve the civil union. Furthermore, the marriage can be dissolved and annulled if the union is not consummated, and it is possible to publish banns before the union.
The most significant distinctions, however, concern the duty of fidelity and the adoption of a spouse’s child, known as “stepchild adoption.” Both terms were present in the original text, but were removed after the Senate vote to allow a parliamentary majority to pass the law. As for adoptions, the issue remains highly debated.
The original text introduced the possibility of adopting a partner’s biological child, a possibility open to heterosexual couples who are married, or cohabiting but married at the time of the official application, for at least three years. The decree law specifies, however, that regarding adoptions, “what is permitted and provided for by the current adoption regulations remains unchanged.” This means that judges retain the right to rule on adoptions for same-sex couples.
Regarding the obligation of fidelity, however, this principle was not even enshrined in the original text, unlike what happens in marriage between heterosexuals, where fidelity is a bond and an obligation. It is specified, however, that the parties entering into a civil union have an obligation to provide moral and material support.
Divorce in civil unions
Just like marriage, civil unions can be divorced quickly, just like a married heterosexual couple who decides to separate. It only takes three months to do so, and simply by expressing your wish before a state official, the union will be officially dissolved three months after the declaration.
Inheritance and reversibility in civil unions
In the case of succession, inheritance, and reversion, the Civil Code applies, which regulates the family property regime and the community of property regime, a property regime similar to that of marriage. Rights and rules regarding reversion are managed in the same way.
In case of sex change
The official act establishing sex assignment entails the dissolution of the union, just as the union is dissolved in the event of a gender change within a married couple: in this case the marriage is dissolved and converted into a civil union.
Civil unions and surrogacy
The civil unions law has long been debated, resisted, and criticized because, according to its detractors, once passed, it could pave the way for surrogacy in Italy, also known as “rented wombs.” Is this true? The answer is no. Surrogacy remains a prohibited practice in Italy but permitted in some foreign countries.
The law on civil unions also for heterosexuals
The second part of the civil unions law focuses on cohabitation between two people, whether homosexual or heterosexual, who are not married. Anyone can enter into a cohabitation contract before a notary, which provides for material and moral assistance. All that is required is to be of age and not be bound by ties of kinship, adoption, marriage, or civil union.
This agreement serves to regulate, in written form, the couple’s shared life, their financial relationships, and the modalities governing the life of a de facto couple. The property regime can be modified at any time, and this type of agreement is not subject to time limits. De facto couples will have the same rights as a married couple in the event of hospitalization, illness, the provisions of the penitentiary system, death, and organ donation.
Separation from a cohabitation agreement is possible, and separation results in the termination of the joint ownership of property, whether by unilateral separation or by agreement of the parties. The notary is responsible for preparing all documents governing real estate, and if the family home belongs to the person who decides to withdraw from the agreement, the withdrawal period must be no less than ninety days, within which the other partner must vacate the home.
In the event of separation between de facto cohabitants, and depending on the case, the judge may order one of the two partners to pay alimony to the other, due if the other partner is in a situation where they are unable to provide for themselves. Alimony is calculated based on the length and duration of cohabitation, and this obligation is given priority to siblings.
In case of death of the spouse
What happens in the event of death? How are the rights to the home regulated? In the event of the death of the owner of the home in which the couple lives, the spouse has the right to live in the home for two years or for a period equal to the number of years of cohabitation, but not exceeding five years. If the surviving spouse is responsible for a minor child, he or she has the right to remain in the home for a period of no less than three years. The surviving spouse no longer has the right to live in the family home if they enter into another civil union, marriage, or cohabitation.
This is what happens with owner-occupied housing. What about public housing? In this case, if the family unit is considered a preferential factor in the rankings, even cohabiting partners can benefit from this condition.
Cohabitants’ rights and the family business
In the case of self-employment, and if one spouse works for the other’s company, the profits and all related to the company’s increases must be divided equally, unless the spouse works for the cohabitant as an employee and therefore performs subordinate work.
