The Italian Supreme Court, with its recent judgment no. 7214 of 21 March 2013, has ruled that the distinction between cohabitation and marital relationship does not mean that the former relationship – which has taken on the characteristics of a family and in which the common home is owned by only one of the partners – is based on a legally irrelevant title such as hospitality, but is based, on the contrary, on the legally relevant title of living together and establishing a family which is socially recognizable as such.
The case: The plaintiff lived with the defendant in a property owned by him. He then decided to give to his partner ownership of the property in question, with a regular contract of sale. This coexistence lasted for a certain period of time. Once the co-habilitation finished, the woman induced her former companion to leave the property. The woman complained, in fact. of an attempted theft and / or burglary and the plaintiff. probably frightened by the possibility of being indicted for the above-mentioned crimes, gave the keys of the property to his former companion and walked away.
Subsequently the plaintiff decided, however, to take action against the former partner with an action of reinstatement, claiming that he had been violently evicted.
The question: There were two opposing arguments. The plaintiff, on the one hand, asserted that the cohabitation had given rise to a situation of co-possession and that, therefore, the defendant’s conduct should be qualified as violent eviction tout court.
The defendant, on the other hand, denied the existence of any right, claim or cause of her ex-partner on the property in question and alleged that the latter’s position was comparable to that of a mere guest who, as such, could be evicted at any time.
The Decision: The Supreme Court, seized of the matter, confirmed in essence the decision of the trial judge (which, in principle, had accepted the plaintiff’s requests). It, however, characterized the relationship of the cohabiting partner not as co-possession, but rather as qualified detention.
The Constitutional Court (Judgments Nos. 237/1986 and 138/2010) had ruled, in relation thereto, that a consolidated co-habitation does not appear constitutionally irrelevant when regard to the constitutional recognition of social formations (article 2 of the Constitution).
The recognition of the partners of a cohabitation as being members of a social formation led to: a) The exclusion of the right of the cohabiting partner to request the returning of any assets conferred during the cohabitation (cfr. Italian Supreme Court judgment no. 13330/2009); b) The recognition of the right of the partner to be awarded pecuniary and non-pecuniary damages a spouse or partner’s death caused by a third party (Supreme Court judgment No. 23725/2008); c) The relevance of the co-habitation of the separated or divorced spouse for the purposes of alimony (Supreme Court judgment No. 3923/2012);
The distinction between marriage and cohabitation (which, according to the Court, exists), cannot, however, mean that that, a cohabitation (which, however, has taken on – on account of the duration, stability, uniqueness and contribution thereto by the partners – the characteristics of a family) is based on a legally irrelevant title such as hospitality, as opposed to being based on a decision to live together and establish a family, which, as such, is legally recognizable.
The Court concluded that principles of good faith meant that the owner of the family home must, once the relationship has ended, allow, in the event that he or she intends recovering the family home in its entirety, give the other partner sufficient notice in order to find other accommodation.
