Thousands of de facto couples in Catalonia who have lived together for two years or have children together, but who have not formalized their relationship before a notary or at the town hall, could lose their rights and be left unprotected if the Constitutional Court overturns part of the Catalan law. A dispute that is currently in court and that affects a couple who had not formalized their five years of cohabitation could trigger a ruling of unconstitutionality. Those affected, who number in the thousands given that the majority of de facto couples do not formalize their relationship, would be left out in the cold and would no longer have the right to pension, compensation or widowhood.
The vice president of the Catalan Society of Family Lawyers (SCAF), Ramon Quintano, explains that two years of living together or a child together do not show the unequivocal desire to be a couple, but rather demonstrate that "they simply live together." For this reason, he warns that if the unconstitutionality of these two cases is declared, a “vast majority” of de facto couples will be left “out in the cold” and “helpless.” The lawyer recommends that if you want rights and duties, it is optimal to get married or formalize the couple before a notary or at the town hall. And he warns that 90% of common-law couples in Catalonia do not meet this requirement and that in the extreme case of the death of one of the partners they could be left without a pension or unprotected.
Lawyers have long cried to heaven with the first two and controversial assumptions of the Catalan law on de facto couples, the first one that was made in 1998, says Quintano. These assumptions (A and B) consider a de facto couple as valid after two years of cohabitation or with children in common. With the Catalan Civil Code, these couples have rights similar to those of marriages that could disappear. A first warning that part of the norm was faltering was in 2013, when the Constitutional Court declared unconstitutional the law that governed Navarra that considered valid a stable union with one year of cohabitation or having a child in common, considering that it was contrary to article 10.1. He understood that the legislator imposed legal consequences on couples “who had not demonstrated the unequivocal will to become couples,” explains the lawyer.
When this declaration of unconstitutionality was made in Navarra, family lawyers already warned that Catalan law was “at risk,” says the vice president of the SCAF. And this is what seems to be happening now in a lawsuit that could overthrow a good part of the Catalan law that dates back to 1998 and that contemplates unions as stable couples in three cases: living together for more than two years, having children in common or having formalized the relationship before a notary or at the town hall.
The case that could blow up the law is that of a couple who lived together for five years, but did not have children or formalize their relationship. One of the members of the couple died without leaving a will and the deceased's mother claimed the assets. The couple requested an annulment and a court agreed, but the mother raised a question of unconstitutionality.
Javier Pérez's partner, Montse, died in 2019 at the age of 47 a few weeks after being diagnosed with cancer. They both had two daughters together, but, as they were not married nor had they formalized the 18 years of a stable relationship, Javier was left without a widow's pension. This 55-year-old bricklayer who lives in Corbera de Llobregat says that it was his partner who most insisted on making the union legal, but that due to the whirlwind of daily life they did not do so. “It was a mess,” he admits. With the hard time of the loss of his life partner and two daughters to support, Javier had to litigate to obtain a widow's pension. But he didn't make it.
Marta Loza, the lawyer who handled the case, assures that Javier's case is “bleeding” because with the diagnosis of his partner's illness, the last thing her client thought about was getting married. Loza, however, says that in addition to not having a couple's registration, the deceased did not contribute 50% of the income, something that until 2021 was also a requirement in the case of common-law couples to deny widowhood. Three years ago they eliminated it because they considered it discriminatory, explains the lawyer.
Montse, who worked in a nursing home, had contributed since she was 18 years old. “I have seen myself black with one's salary to support my daughters,” explains this construction worker. “She paid my freelancers,” recalls Javier. But neither that, nor proving the payment of the rent and other common expenses, nor the neighbors' witnesses who came to the trial to prove that Montse and Javier were a couple, nor the two daughters helped the judge grant her widowhood. A pension that would have been very good for him given that he is self-employed.
Javier regrets the little information that exists about the rights of couples who have not formalized their relationship and who, as in his case, have had children together. And he explains that his story helped another classmate rush to get married so that the same thing wouldn't happen to him. Marta Loza, who is a labor lawyer, explains that de facto couples are always advised to register as such at the town hall or before a notary if they want to have rights. Luckily, Javier and Montse's daughters are orphans and are “good students,” but Javier explains the economic disaster caused by not being widowed and forced to work on holidays. “I'm up to my neck.”
“If you don't want to have rights and duties, nothing happens, but otherwise the best thing to do is go to the notary,” recommends Ramon Quintano. Once the de facto couple is formalized with papers, the rights and obligations are the same as in a marriage, such as compensatory pension and inheritance rights and duties, he explains. The lawyers ask the Catalan legislator to get to work "if he wants to continue protecting, because we have a problem."
