Once the homosexual marriage was approved, it is understood that the de facto couple is an option for those couples who do not want to marry at all.
And is that the domestic partnership and marriage are not comparable unions. This has been stipulated by both the Supreme Court and the Constitutional Court.
For this reason, whoever opts for the domestic partnership will be avoiding the consequences derived from the marriage, as well as its own rules, although the Autonomous Communities, in charge of regulating these laws, have extended the rights or benefits of marriage to duly registered domestic partners.
Thus, the most significant differences lie in hereditary, fiscal, and liquidation issues of the common heritage. However, it is also necessary to take into account what each Autonomous Community says in its legislation in this regard, since it varies from one to the other.
REQUIREMENTS FOR MARRIAGE
Marriage is the stable and permanent union of two people of the same or different sex. Once the previous file has been processed, in accordance with the Civil Registry legislation and the marital capacity is accredited (article 56 CC), the parties will express their consent before the competent authority (article 57 CC) and two witnesses, extending the registration or the corresponding act that is necessarily registered in the corresponding Civil Registry.
They may not marry under penalty of nullity:
—People linked with a previous undissolved marriage bond.
—Consanguinity collaterals up to the third degree.
—Convicted as the author or accomplice of the willful death of the previous spouse, except exemption, granted by the Ministry of Justice.
REQUIREMENTS FOR REGISTRATION AS A DOMESTIC PARTNER
Domestic partners, for their part, are not regulated by a legal system of general application throughout the State, although many Autonomous Communities have issued rules for their regulation. Madrid, for example, did approve the Law of Fact Unions, regulating the situation of those who choose this form of coexistence as a couple and publishing in the Regulation of the Registry of Fact Unions of the Community of Madrid the procedure for registration in the Registry.
In this respect, the great difference is, therefore, that just as marriage has a state norm, each couple will, in fact, see the norm modified according to the Autonomous Community in which they reside.
To register as a de facto couple, both must meet these requirements:
-Be of age
—The couple has lived together for a year or two. It is accredited through coexistence statements signed by witnesses.
—Not being married
—That one of the members is registered in that Autonomous Community, which is accredited by means of a registration certificate.
—That two witnesses are present in addition to the couple in the registration process.
They may not form unmarried couples:
—Those who are bound by the marriage bond not legally separated.
—People who form a stable union with another person.
– Relatives in a direct line by blood or adoption.
—Collateral relatives by consanguinity or adoption within the third degree.
—The constitution of a stable unmarried couple cannot be agreed on a temporary basis or subject to conditions.
If a domestic partnership or marriage breaks up with children, the steps to take are basically the same. The only difference is that in the case of marriage these measures will be processed in the separation or divorce procedure, while in the case of a domestic partner, the process is a verbal procedure that can be mutually agreed, with the parents signing a regulatory or contentious agreement.
In the event of a couple’s breakup, some Autonomous Communities regulate a compensatory pension for the member who has been disadvantaged, but others do not collect it. However, the members must expressly agree and collect it in a public deed since, in the absence of an agreement, it will be presumed, unless proven otherwise, that the members of the union contribute equitably to the maintenance of its burdens in proportion to its resources, the disadvantaged member must go to court.
And the fundamental difference lies in the fact that, in the event of a marriage, the disadvantaged spouse may request a compensatory pension in the separation or divorce procedure itself. While the cohabitant will not be able to do it in the verbal procedure of parental-child measures but will have to go to a different procedure: ordinary declaratory trial in a claim for economic compensation for the breakup of a domestic partnership, which is much more expensive and complicated.
There are also notable differences here. And it is that when contracting marriage, the spouses have legally defined their economic regime: that of property, separation of assets, or the partition of profits.
For de facto unions there is no economic regime since the autonomy of the will prevails.
So that the economic relations between the members of these unions are subject to the principle of the autonomy of the will, being able to celebrate among themselves the pacts that they consider opportune to order their economic relations, being able to choose between any of the possible bosses.
This is another aspect in which there are differences between the two options. Thus, in the event of a marriage, the spouse who is still alive will be entitled to the pension, regardless of the time they have been married, and regardless of the survivor’s income. Not so in the case of the common-law couple, who in order to collect the widow’s pension must prove:
1.- They have been an uninterrupted couple for two years prior to death. In other words, they have been registered for two years, which they will be able to prove by means of a certification issued by the corresponding registry of deeds.
2.- An uninterrupted coexistence in the five years prior to death must also be proved. It can be accredited by means of a registration certificate in the same residence.
3.- The survivor’s income cannot exceed a certain limit that will be established by each Autonomous Community.
SUCCESSIONS AND DONATIONS
This is the most different point for both unions. Thus, the common-law couple does not have the right to inherit from their partner, so having a will becomes mandatory, and the inheritance rights of the forced heirs will always have to be respected.
In case of marriage, the widowed spouse is entitled to the usufruct of the third improvement.
At the time of making the declaration of the rent, the couple, in fact, will not be able to do it jointly. They can only do it individually. While the spouses can choose to do it jointly or independently.
PAID WORK PERMITS
The cohabitants, like the spouses, can enjoy the work permit for serious illness or death of the other cohabitant. Likewise, both spouses and domestic partners enjoy the same paternity or maternity leave.
In addition, if they are civil servants they will also have the right to 15 days of marriage when they become a domestic partner, but this is not clear if they work in private companies, since that point will depend on the Collective Agreement.
The cohabitant will also be able to enjoy health care as long as they demonstrate continued coexistence for a year by registering in the registry.
In the event of the death of the member who is the holder of the contract, the Law of Urban Leases contemplates the right of real subrogation of the couple, provided that two years of coexistence are accredited by means of the inscription in the registry.
Formally, it is possible for a domestic partner to adopt. However, in practice, it is so difficult that it is practically impossible.
The marriage dissolves:
—For the death of the spouse
—Three months after the celebration of the marriage, it can be dissolved, at the request of only one of them, by divorce, and it is not necessary to allege any cause. In fact, any claim or question in this regard at trial is declared impertinent.
The couple in fact dissolves:
– By mutual agreement, notifying and registering in the registry.
—By unilateral decision of one of the members of the union, notified to the other by any of the forms admitted in Law. The cancellation of the registration can be made at the request of one of the members and the Registry Manager will communicate the cancellation to the other party.
“Due to the death of one of the members.”
“By de facto separation of more than six months.”
“By marriage of one of the members.”