A news story released on Wednesday, June 22, by ANSA and reported by Il Messaggero, has caused a stir. According to the news, two men living together in Rome will go to court in a few days to "ratify" their cohabitation, based on a law that dates back to the fascist era.
There are gross inaccuracies in the news report that deserve corrections.
The issue, concerning cohabitation, must be framed starting from the Law no. 1228/54 which regulates the registry, accompanied by the latest implementing regulation approved with Presidential Decree no. 223/89 (which replaced the previous regulation Presidential Decree no. 136 of 31 January 1958) and subsequent amendments.
Article 1 of the law establishes that "a registry of the resident population must be maintained in each municipality," which records three categories: individuals, families, and cohabitations, but does not define these concepts. Definitions are instead contained in Article 4 of the implementing regulation, which states that a registered family is "a group of persons related by marriage, kinship, affinity, adoption, guardianship, or emotional ties, cohabiting and habitually residing in the same municipality," specifying that this also includes a family consisting of a single person; while a cohabitation is "a group of persons normally cohabiting for religious, medical, assistance, military, penal, or similar reasons, habitually residing in the same municipality.".
Legal doctrine holds that the registered family is a res facti (Lucarelli, "On the definition and evolution of the registered family," in Stato civ. it., 1994, p. 675), meaning it exists if three requirements are met: the existence of a bond, even if only emotional, cohabitation, and residence in the same municipality. On the other hand, the legitimate family exists independently of a de facto situation, with the existence of a legally defined bond being necessary and sufficient (Puleo, "Family. II. Private Law," in general, entry in the Treccani Legal Encyclopedia, 1989, XIV, p. 3). Cohabitation is also a res facti, in which the existence of a bond is irrelevant.
The above clarifies that the registered family and cohabitation are relevant only for registry purposes; However, sometimes the legislator makes the existence of a right or the granting of a benefit dependent on the existence of a registered family or cohabitation. To give just a few examples, this is relevant with regard to the regulation of prisoner permits (Article 30, paragraph 1, Law No. 354/75), or in the context of anti-mafia legislation (Article 14, paragraph 2, Law No. 646/82), or even for the cohabitant's right not to testify in court (Article 199 of the Code of Criminal Procedure). It is also relevant in the case of newlyweds who wish to adopt and must demonstrate that they had been cohabiting before the marriage, or for public employees living with disabled persons who wish to obtain a transfer to move closer to their place of residence (Ministerial Decree No. 382/95), etc.
In these specific cases where the de facto situation takes on legal significance, it is essential to be able to prove the existence and, above all, the duration of the registered family and cohabitation. This proof would not be possible in all cases where the necessary notifications to the registry office had not been made (or, for example, where the cohabitation took place abroad). To address these situations of "missing" proof, a notarial deed certifying a fact of legal significance is available, in cases where there is no dispute between the parties.
It is sufficient that a fact, a state, or a personal quality (in practice, all those not included in the list in Article 46 of Presidential Decree 28.12.2000 no. 445, for which self-certification is sufficient) be known by at least two adults who are not involved in the deed and possess full civil rights, for such knowledge, provided in the form of a declaration and recorded by the declaring officer in a report, to confer probative value on the fact, act, or personal quality in question. The sworn statement is issued by the notary or the clerk of the notary's office at the Court, to whom the declaration is made. It is worth emphasizing that the presence of the notary and clerk serves only to certify that the information contained in the deed was declared in their presence by persons whose identities they have verified. The veracity of the declaration, however, is made under one's own responsibility pursuant to Article 26 of Law 15/68.
Summarizing all of the above, it follows that:
1) through notarial deeds no "ratification" is achieved, but more simply a declaration is reported made under one's own responsibility (one assumes the criminal consequences in the event that what is declared turns out to be false) and confirmed by two witnesses, of a fact, a state or a personal quality;
2) A notarial deed is a certification from which no rights or benefits directly arise. These, on the contrary, are directly related to the fact, status, or personal quality declared therein. Therefore, for example, if the law does not provide that a certain fact confers a right or benefit—or, to put it another way: if the fact does not constitute a legally relevant situation—the notarial deed and the declaration it contains will have no consequences.
It is important to underline that The writer is not aware of any law dating back to 1937 or the fascist period, which concerns the regulation of cohabitation "more uxorio"“. Even today, common-law cohabitation or de facto families do not have a positive form of recognition in the Italian legal system and, therefore, related rights and duties.
In this regard, the comparison or assimilation, made by some, of this de facto situation to the regulation, through specific legislation, of civil unions appears absolutely inappropriate and devoid of merit. Indeed, in the first case, the de facto situation has no legal relevance except, and only occasionally, in individual cases where the legislator deems it appropriate to grant benefits to the existence of such a situation; in the second case, on the contrary, the law would provide for provide a complete regulation of rights and duties of the members of the union. Therefore, we would no longer be faced with a factual situation, res facti, but with a legal situation, which has general scope and is absolutely legally relevant.
For the sake of completeness, and only by way of example, some of the rights, of a patrimonial and non-patrimonial nature, that the proposed law on PACS (The Justice Committee of the Chamber of Deputies is continuing its fact-finding investigation into the proposed laws) would assure.
With the PaCS, you can make healthcare decisions on your partner's behalf, obtain a residence permit and citizenship, have the right to be treated as a married person in competitive exams, and can take over a rental agreement when the cohabiting partner who signed the contract alone dies.
All this would never be achieved with a notarial deed.
Lawyer. Antonio Rotelli
Head of the Legal and Legislative Sector at Arcigay