Definition of Cohabitant
A “cohabitant” is defined as a person who is continually and habitually living with another person in the cohabitation home as a couple, and who enters into a public deed of cohabitation with the other person, provided that he is not already legally bound to another person.
The definition introduces the concept of a cohabitation home thus emulating the matrimonial home and does away with the concept of de facto cohabitation and the cohabitation register which featured in the previous Act.
Definition of Cohabitation Home
The Cohabitation Home is defined as that within which the cohabitants live together, belonging to either one of the cohabitants or to both of them, in whichever portion, and whether or not they possess it by title of lease or any other title, whether jointly or separately.
Establishment of a Cohabitation
The Act states that persons who have the intention of cohabiting or who are already cohabiting and want to be governed by the provisions of the Act must enter into a public deed. The cohabitation shall have effect from the date of publication of the deed with regard to the cohabitants and from when it is enrolled in the Public Registry with regard to third parties.
Nullity of Public deed
The Act largely reproduces the instances mentioned in the previous Act which render a public deed of cohabitation null and void, such as in cases where, one of the cohabitants or both, are bound by a previous public deed of cohabitation together or with third parties or are bound by a registered or unilaterally declared cohabitation together or with third parties.
Formalities of the public deed
The new Act puts an obligation on the parties to provide the Notary with a free status certificate thus ensuring that the parties are free to enter into a public deed establishing their cohabitation.
Community of Assets between Cohabitants
Another innovative aspect of this Act is the possibility for the parties to establish the community of assets. However, if they fail to make a declaration to this effect in the public deed, it shall be presumed that the parties intended to exclude this.
Basic Rights and Duties
The Act refers to various rights and duties. Reference to maintenance is limited to children unlike in the previous Act while the right of habitation in the cohabitation home if one of the cohabitants dies during cohabitation, is limited to 12 months when held in full ownership or emphyteusis by the deceased cohabitant, either separately or jointly with the surviving cohabitant.
The law moreover provides that a person who immediately prior to the termination of the relationship as a couple, or the other party is deceased was continually and habitually living with another person as a couple and who has been living with the same person for a period of not less than 2 years and whose relationship is not regulated under any law, may within 12 months file an application before the Court requesting the right of habitation in the common home, for a period that shall be determined by the Court, limitedly to be given time for the purposes of finding an alternative residence or where the other person is deceased, the right of habitation in the common home; for a period that shall be determined by the Court and the right to be compensated for any patrimonial loss which that person may have suffered.