By means of Order JUS/44/2017 of March 28 (DOGC no. 7341 of 03/31/2017) the Regulation on the Registry of stable couples in Catalonia has been approved, the commonly called unmarried couples, which is a consequence of the provision contained in the Tenth Additional Provision of Law 25/2010 of July 19 (which approves Book II of the Civil Code of Catalonia) introduced by Decree 3/2015 of October 6, which says:
Tenth Registry of stable couples
1. The Registry of stable couples is created, for the purposes of publicity, attached to the competent department in matters of civil law, through the management center that has been assigned its competence.
2. The public deeds of constitution of stable couples, their modifications and, where appropriate, their extinction, as well as the acts of notoriety related to the cases regulated by article 234-1, a) and b, are registered in the Register of stable couples. ).
However, the immediate cause of this registry of unmarried couples can be found in Constitutional Court ruling 40/2014, by which section 4 of article 174 of the General Social Security Law was declared unconstitutional, which stated:
“In the autonomous communities with their own Civil Law, when the coexistence requirement referred to in the previous paragraph is met, the consideration of common-law couple and their accreditation will be carried out in accordance with what is established by their specific legislation.“
The consequence of this annulment was that despite meeting the requirements of the legislation of Catalonia, to be considered as a domestic partner, it could be the case that the requirements established in the social security legislation to access a pension of widowhood, since the accreditation of the situation of common-law couple was only allowed, through certification of the registration in one of the specific registries existing in the autonomous communities or town halls of the place of residence or through a public document stating the constitution of said couple.
Currently, the requirements for unmarried couples to be able to access a widow's pension are included in article 221 of the Royal Legislative Decree 8/2015, of October 30, which approves the Consolidated Text of the General Social Security Law, which says:
Article 221.- Widow's pension of common-law couples.
1.- Once the registration and contribution requirements established in article 219 have been met, anyone who was together with the deceased at the time of his death, forming a de facto couple, and accrediting that his income during the previous calendar year did not reach 50 percent of the sum of their own and those of the deceased in the same period. Said percentage will be 25 percent in the case of non-existence of common children with the right to an orphan's pension.
However, the right to a widow's pension will also be recognized when the survivor's income is less than 1.5 times the amount of the minimum interprofessional salary in force at the time of the causative event, a requirement that must be present both at the time of the causative event of the benefit, as well as during the period of its perception. The indicated limit will be increased by 0.5 times the amount of the current interprofessional minimum wage, for each common child entitled to the orphan's pension who lives with the survivor.
The income from work and capital as well as those of a patrimonial nature will be considered as income, in the terms in which they are computed for the recognition of the supplements for minimum pensions established in article 59.
2. For the purposes of the provisions of this article, the constituted couple will be considered, with an analogous affective relationship to the conjugal one, by whom, not being prevented from contracting marriage, are not married to another person and prove, by means of the corresponding certificate of registration, a stable and notorious coexistence immediately after the death of the deceased and with an uninterrupted duration of not less than five years.
The existence of a de facto couple will be accredited by certification of the registration in one of the specific registries existing in the autonomous communities or town halls of the place of residence or by means of a public document stating the constitution of said couple. Both the aforementioned registration and the formalization of the corresponding public document must have occurred at least two years in advance of the date of death of the deceased.
Common-law couples separated by law or fact
I have left marked in bold before the phrase "not being prevented from contracting marriage, do not have a matrimonial bond with another person. because in the legislation of Catalonia (article 234-2 CCCat), those separated in fact or in law, despite the fact that they can be constituted as de facto couples, having a current marriage bond, could not access the widow's pension.
Registration is not mandatory.
The first thing that we must highlight is that the registration of de facto couples in this registry created is not mandatory. Of course, it will be an essential requirement, as long as the couple has not been constituted in a public deed before a Notary, to access a widow's pension, as long as the rest of the aforementioned requirements of article 221 LGSS are met.
How is a de facto couple constituted?
Domestic partnerships are constituted in accordance with the requirements established in articles 234-1 and 234-2 of the Civil Code of Catalonia, which are the following:
1.- Cohabitation similar to a marriage, for more than two uninterrupted years.
2.- Yes, although the cohabitation does not last two years, during it, they have a common child
3.- Yes, they live together or decide to live together, and they declare it in a public deed, even if the coexistence does not last two years, nor do they have a common child.
How does a de facto couple register? Article 8 Order JUS/44/2017 of March 28
Well, by accrediting the requirements established in the previous section. That is to say:
a.- If the existence of the couple derives from mere cohabitation, this cohabitation must be accredited through the registration certificates.
b.- If the existence of the couple derives from cohabitation and the existence of a common child, the cohabitation must be accredited, on the one hand, through the registration certificates and also, the birth of the child through the family book or birth certificate.
In both cases, the identity documents of the members of the couple must be accompanied, a birth certificate for the purpose of proving the legal separation, divorce or emancipation, as well as a responsible declaration, made by the two cohabitants in a stable relationship in whose virtue states that the requirements to constitute a stable couple are met and none of the causes that prevent it are present, in accordance with the provisions of article 234-2 of the Civil Code of Catalonia.
In a similar way to what we have indicated with the regulation of the widow's pension, with this regulation, those persons who are separated merely in fact from their previous marriage will not be able to access the register of domestic partners.
c.- Finally, if the existence of the couple derives from having been constituted in a public deed, or its accreditation derives from an act of notoriety, it will be the Notary, who at the request of both members of the couple, sends a copy of it electronically to the Notarial College, which in turn will communicate it to the Registry of common-law couples.
In the order itself it is foreseen, I imagine when the state of the art allows it, that it be communicated directly by the Notary to the Registry, without going through the Notarial Association
What happens with the inscriptions of the Municipal Registries?
Well, nothing, because by itself it does not constitute proof of cohabitation for registration purposes, and its contribution is only allowed, for the purposes of "mere proof"
The registration of the extinction of the couple and its modifications
In the registry of de facto couples, not only the constitution of the couple is registered, but also the possible modifications, as well as its extinction.
The most frequent modification will be changes of address or some error or modification of the data published by the registry, such as a change of surnames
The extinction must accompany the supporting documentation of the cause that produced it. If there is a cessation of cohabitation, it will be necessary for both members to acknowledge it, but the other cases, as a general rule, only require the request of one, and the death certificate must be presented, if the extinction derives from the death or declaration of death of one of the cohabitants; the marriage certificate, if this is the cause or the notification certificate in the event that the couple is extinguished by the mere will of one of the cohabitants.
If we must take into account that the registration of the extinction, does not prejudge its consequences, since in the absence of an agreement the following must be debated and established judicially: 1.- How guardianship and custody will be exercised over common children; 2.- Who will be entitled to use the family home; 3.- If there is a right to economic compensation for having worked for the house substantially more than the other or has worked for the other without pay or with insufficient pay; 4.- And finally, if there is a right of any of the cohabitants to claim a food benefit from the other
Where is the record?
At the headquarters of the competent department in matters of civil law (Pau Claris street number 81 in Barcelona), in the records that appear in annex 2 of the Regulation (in the case of Lleida at Sant Martí street number 1) and before the other registries that are enabled for this purpose by means of a resolution
In-person or telematic registration
The procedures can be face-to-face or online in the manner provided in article 10 Order JUS/44/2017 of March 28
How long does the registration procedure take?
The order provides for a maximum term of two months, for the constitutions, counting from the date of entry of the applications.
Once this period has elapsed without the express resolution having been issued and notified, the requests for registration of the existence or extinction of the stable couple and for modification are considered estimated and the registration or modification of the data is carried out within a period of fifteen days. .
How much does registration cost
In principle it is free
Does the registration of domestic partnerships replace the deed??
In some cases, yes, because when the couple derives from cohabitation and/or from having offspring, the registration certifies their existence. But if a two-year coexistence cannot be proven, or there are no descendants, the only way to prove the couple will be through public deed.
In any case, the writing will always be faster than the registration (1 day compared to two months), it allows agreeing on aspects, such as the cohabitation regime or the consequences of extinction, which are not viable to be recorded in the registration, and for a very reasonable price it allows you to have a broader vision of all the aspects that involve a common-law couple, and that for more information you can consult in this entrance from the blog.
In Lleida on April 17, 2017.