Marriage, Civil Union, Cohabitation

Marriage, Civil Union, Cohabitation


by Lorenzo Bertino, Bocconi Department of Legal Studies
Translated by Alex Foti

Family law has always been based on the institution of marriage. Also according to the model implemented by art. 29 of the Italian Constitution, the family is centered around marriage. Thus there has always been a biunivocal legal relation between family and marriage.

Given the inherited normative framework, a significant change has occurred. The culture underpinning the 1942 Civil Code has weakened considerably due to the spread of new behavioral models typical of a secularized and globalized society. In this new order, the principle of the family as a solid and supportive community and the vision of human nature based on the duality of the sexes and genders has been overcome. In the process of emancipation from traditional family ethics, the family as molecule of the community based on stable, relational, altruistic and project-oriented forms is being challenged. The lesser and lesser negative consideration of relationships outside marriage is also found at the terminological level in law: first they were treated as concubinage, then as more uxorio cohabitations, and finally as de facto families.

The domestic legislation, lagging behind most European countries, has sought to adapt to intervening social changes by strongly innovating positive law. In particular, the idea of ​​the family based on the duality of man and woman has been overcome by the introduction of civil unions between persons of the same sex. Also the principle of the stability of the family relationship has been overcome, by inserting rules in the legal fabric that govern either heterosexual or homosexual de facto couples. The Law of 20 May 2016, no. 76 thus recognized civil unions between persons of the same sex, as well as de facto cohabitations. And, at the terminological level, we have gone from the de facto family to the civil union.

Following this regulatory intervention, marriage as the foundation of the family, as per art. 29 of the Constitution, is in crisis. It is therefore certain that today, for positive law, conjugal circumstances other than marriage have acquired legal significance. However, it seems undeniable that in terms of constitutional references these social formations carry a different import. If only the family founded on marriage finds a place in the art. 29 of the Constitution, the constitutional reference for cohabitations and de facto unions can only be that of art. 2 of the Constitution, which protects social formations.

Despite the fact that the idea of ​​family underlying these social formations is profoundly different from marriage and although the constitutional coverage of the cases analyzed is equally different, the legislature has regulated civil unions with constant referrals to the discipline of the family (and marriage). The discipline of de facto cohabitations is partially different, since ample space is granted to contractual autonomy, thus infringing that unquestioned dividing line that has always existed between the field of capital and what we could call the world of life.

If, therefore, the model of cohabitation places itself totally outside the family founded on marriage, since it always maintains - despite legislative recognition - the idea of ​​living together outside stable (legal) constraints, one might think that they are the family and civil union models can be superimposed, where the latter derives from the former, in terms of (only) positive law, as mentioned above. An idea that would seem to be strengthened by an analysis of the recent reform of filiation, where the existing plurality of the statuses – legitimate child, natural child with legal recognition, unrecognized or unrecognizable natural child - is replaced by a single legal model. The status of a child is now independent of the fact that he or she was born inside or outside marriage, civil union, or cohabitation.

A careful analysis of the three legal models that goes beyond the legislative technique of referring to the legal discipline of family and marriage law can only lead to affirm that the three legal models (family based on marriage, civil unions, cohabitations) are not three types of family, but three different models of personal relationships.

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