Luis Prados Ramos



The treatment of unmarried couples, in the Community of Madrid, cannot do without the treatment that they have at the national level, and this must be based on two considerations:

a) the first is that there is no general regulation of unmarried couples at the national level;

b) and the second, is that although there are different regional regulations, their content is very different, since there are autonomous communities (for example Aragon, Catalonia, the Balearic Islands, Galicia, Navarra and the Basque Country) that, having powers over civil law, can carry out an extensive treatment of unmarried couples, while other communities (Andalusia, Asturias, the Canary Islands, Extremadura, Madrid and Valencia), can only carry out a partial treatment, limited to administrative matters.

In any case, doubts, both in communities with their own rights and in those without, regarding the adjustment to the constitution of their respective regulations, has generated the paradox, that very similar or identical laws have been declared unconstitutional in some autonomous communities and in others not. For a more in-depth treatment of this matter, I refer to the blog of my colleague Francisco Mariño, which you can consult by clicking here.

The existence of different regulations has added problems, such as:

a) that there is not a single concept of common-law couple, and although all laws, although all start from consent and/or cohabitation, the term thereof may be different for each one of them;

b) that there is no rule of conflict, which establishes which is the applicable rule, in the event that different laws may be involved;

c) and that the effect of recognition of a common-law couple in an Autonomous Community other than the one pursuant to whose legislation it was established is not regulated either.

 In the day-to-day of a notary's office, the question regarding whether the change of residence obliges to process a new registration of the couple in the place of the new residence is very frequent.

The regulation of de facto couples in the Community of Madrid is constituted by Law 11/2001 of December 19 of de facto unions of the Community of Madrid, and by Decree 134/2002 of July 18, which approves the regulations of the Registry of Commonwealth Unions.

Domestic partnership concept.

In the case of the Community of Madrid, and in accordance with article 1 of Law 11/2001, a common-law couple is understood as a couple formed by persons who live as a couple, freely, publicly and notoriously, in a stable relationship, for at least an uninterrupted period of twelve months, existing a relationship of affectivity, provided that voluntarily decide to submit to it by registering the union in the Registry of Domestic Partnerships of the Community of Madrid.

Therefore, there are two complementary requirements, coexistence in the manner indicated and the registration, which can be considered constitutive, in the Registry of Domestic Partnerships, for which it is necessary that at least one of the members is registered and has his residence in the Community of Madrid.

I believe that the concept of couple is one of the main defects of the law, being in my opinion preferable the system of other legislations, such as the Catalan, the Navarrese or the Extremadura, which allows linking the birth of the de facto couple to the will to constitute the couple in a public document, thus providing the cohabitants with notarial advice, clearly essential, taking into account the important legal effects that this decision will cause them, and that it is cheaper than the registration fees in the registry of Domestic Partnerships.

capacity requirements.

In any case, people who wish to become a common-law couple must meet capacity requirements, which do not coincide with those provided for in the regulations of other autonomous communities, and thus in its article 2 of Law 11/2001 tells us that cannot constitute a de facto union in accordance with the regulations of this Law:

  1. a) Non-emancipated minors and persons affected by a mental deficiency or anomaly that does not allow them to validly give their consent to the union.
  2. b) Persons linked by the bond of marriage not judicially separated.
  3. c) People who form a stable union with another person.
  4. d) Relatives in a straight line by consanguinity or adoption.
  5. e) Collateral relatives by consanguinity or adoption within the third degree.

And the constitution of a stable unmarried couple may not be agreed on a temporary basis or be subject to a condition.

Effects of the constitution of the common-law couple.

Since the Community of Madrid does not have legislative powers in matters of civil law, it only recognizes two effects for unmarried couples, both of an administrative nature, such as:

a) that, in relation to the personnel at the service of the Administration of the Community of Madrid, the cohabitants will maintain the same benefits recognized to couples who have contracted marriage (Article 8).

b) and that the rights and obligations established in the Madrid Public Law regulations for the members of couples who have contracted marriage, will be applicable to the members of the de facto union, especially in budgetary matters, subsidies and own taxes (Article 9).

In addition to these effects, it should be noted that, once the domestic partnership situation is accredited, through the Register of the Community of Madrid, those others that different laws recognize domestic partnerships can be derived, such as, without intention of completeness:

The right to receive compensation in the event of death and for material and moral damages derived, for example, from a traffic accident

The right to health care that is recognized both for the spouse, in the case of marriages, and for the partner with whom the holder of the right lives, although in these cases it will be necessary to prove a minimum period of cohabitation of one year with the right holder.

Being considered a domestic partner of a Spanish citizen or resident in Spain, holder of a long-term residence permit, entitles, along with other requirements, to obtain a residence permit in Spain.

 Causes and effects of the extinction of the domestic partnership.

De facto unions are extinguished, in accordance with article 6 of Law 11/2001 for the following reasons:

  1. By mutual agreement.
  2.  By unilateral decision of one of the members of the union notified to the other by any of the forms admitted by law.
  3. By death or declaration of death of one of the members of the de facto union.
  4. Due to de facto separation of more than six months.
  5. By marriage of one of the members.

We will differentiate the effects of the extinction of the domestic partnership depending on the cause of it.

Termination by death or declaration of death

Thus, in the case of the death or declaration of death of any of the cohabitants, since the Community of Madrid does not have legislative powers in matters of civil law, we must resort to the general rules of succession, which will depend on the civil neighborhood and residence of the deceased (article 9.8 CC and European Inheritance Regulation).

In the event that common civil law is applicable (that is, the Civil Code) and that it will be most likely in couples who have lived together in the Community of Madrid, it should be noted that the common-law couple is not equal to the spouse, and therefore will not enjoy any rights, except for what can be recognized by will, with due respect to the legitimate ones.

In this way, if the deceased cohabitant has children, the most that could be attributed to him is one third of free disposition, and in case of death without a will, the cohabitant would lack any rights.

On the contrary, if another regulation were applicable, there could be a total equalization between the spouse and the common-law partner for succession purposes.

In order to qualify for a widow's pension, the General Social Security Law considers a de facto partner to be a couple, with an emotional relationship analogous to that of a spouse, by those who, not being prevented from marrying, do not have a marital relationship with 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 judgment of the Supreme Court 3821/2015 of June 30 allows unmarried couples to collect the widow's pension even if they have not been registered for two years or did not have a public document of incorporation, despite what Article 174.3 LGSS says.

Termination for reasons other than death.

The main problem that common-law couples face is the consequences of their extinction when it derives from a breakup. The different regional laws on unmarried couples, and whenever they may have legislative competence in civil matters, have tried to recognize some type of economic compensation, especially when one of the members of the couple has worked for the home or for the work of another , and the break supposes a worsening of their economic situation.

This is not the case of the Community of Madrid, as we have said previously. For this reason we have made references to the judgment of the Supreme Court of September 12, 2005, which has indicated that "(...) the de facto union is an institution that has nothing to do with marriage and therefore should avoid the application by legal analogy of rules specific to marriage, such as articles 97, 98, and 98 of the Spanish Civil Code.”

For this reason, the consequences of the extinction must be foreseen by means of an agreement between the cohabitants, although any type of agreement is not possible, and thus, for example, it would not be possible to agree on a joint venture, due to the importance that the same in front of third parties (RDGRN of February 7, 2013).

In my opinion, the possible agreements could be either the recognition of some type of participation in the profits or the waiver of any type of compensation.

In the absence of an agreement, economic compensation between the cohabitants could only be enforced through the doctrine of unjust enrichment, through ordinary procedural channels, and provided that the necessary requirements are met: a) increase in the patrimony of the enriched; b) correlative impoverishment of acts; c) lack of cause that justifies the enrichment; d) and the absence of a legal precept that excludes its application.

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