Pros and cons between cohabitation and marriage

Marriage or domestic partnership? This is, without a doubt, the main question on the minds of many Spaniards when it comes to making their relationship official. Each model has a series of advantages and disadvantages that are worth knowing before making the decision. Here we would like to tell you about them so that you can choose the option that suits you best.

The requirements necessary to contract marriage and to form a domestic partnership

Marriage is considered to be the permanent and stable union of two people of different or the same sex. It is a figure that appears in articles 56 and 57 of the Civil Code and requires the processing of a dossier and registration in the Civil Registry by a competent authority and the presence of witnesses.

The only persons who cannot marry are minors under 18 years of age who are not emancipated, family members with a first and second degree of kinship, those who are linked to other persons by an unresolved marriage bond and those who have been convicted, either as an accomplice or as a perpetrator, for the death of a previous spouse.

For their part, unmarried couples lack a harmonious legal system in the country as a whole. However, some autonomous communities, such as Madrid, have published laws to regulate them. This is the main difference between the two types of partnership.

The requirements to form a domestic partnership are greater than those for marriage. This is mainly due to the fact that, in addition to what is established above, between one and two years of previous cohabitation must be accredited, which must be done through the signature of witnesses.

Dissolution of marriage and unmarried partnerships

As mentioned in the previous section, the jurisdiction is also very clear with regard to the dissolution of marriage. In this sense, this figure can only be dissolved by the death of one of the spouses or, failing that, after three months have elapsed since the celebration of the marriage, by express request of one of them without it being necessary to specify any cause. The simple will to proceed with the divorce is sufficient. However, it must be a judge who makes the termination of the union official by means of a judgement.

On the other hand, the dissolution of an unmarried couple requires different procedures. If it is by mutual agreement, it is sufficient to go to the Civil Registry and notify it. In fact, this can be done by only one of the spouses, with the Registrar being responsible for notifying the other.

Also, if the cohabitation ceases for a period of more than 6 months, if one of the spouses dies or if one of them marries another person, the partnership is also dissolved. The latter is an important point since, in the case of marriage, marrying another person is grounds for immediate nullity and even heavy penalties.

The advantages and disadvantages of marriage and cohabitation in cases of conflict

The formation of marriage and domestic partnership is relatively straightforward and easy to understand. However, when it comes to dissolving either of them, there are a series of aspects to take into account as, on many occasions, they do not occur by mutual agreement nor do they follow exactly the basic channels described above. Let us look at them.

What happens when children are involved?

The measures to be taken when a marriage or partnership breaks down and children are involved are exactly the same. The only difference is that, in the case of marriage, the measures to be adopted must be agreed through divorce or separation proceedings, which can be quite lengthy. On the other hand, in the case of unmarried couples, the regulatory agreement can be established through a simple verbal procedure as long as there is mutual agreement. If there is no mutual agreement, contentious proceedings are required.

What about alimony?

Both in the case of marriage and in the case of cohabitation, there is the figure of the compensatory pension. However, in the case of marriage it is much simpler, quicker and cheaper to obtain as it is requested during the divorce or separation process itself. On the other hand, in the case of unmarried couples, it must be requested through a different procedure to that of the separation itself. This is the figure of the claim for financial compensation for the break-up of a domestic partnership, which must be made by means of an ordinary declaratory judgment.

The financial regime

Persons who enter into a marriage must choose to do so under a regime of separation of property, community of property or division of profits. However, this is not the case for unmarried couples, within which there is no such property regime. This means that it is the will of the spouses to enter into agreements between them that prevails.

Entitlement to a widow's/widower's pension

The advantages of marriage over cohabitation as regards the widow's/widower's pension are very clear. In the event of the death of one of the spouses, the other is entitled to the pension regardless of their income or the length of time they have been married.

On the other hand, when one partner dies, the surviving spouse must prove the following in order to be entitled to a widow's or widower's pension:

1. Registration as a domestic partner two or more years prior to the time of death.
2. Proof of uninterrupted cohabitation for at least 5 years prior to death by presenting a certificate of census registration.
3. Each autonomous community sets an income limit for the surviving spouse. If he/she exceeds this limit, even if he/she can prove everything else, he/she will not be entitled to receive the widow's/widower's pension.

Donations and inheritance

Another aspect in which marriage offers many advantages over cohabitation. In the first case, the surviving spouse automatically acquires the right to inherit his or her partner's property in the event of death, even if he or she does not leave a will.

However, this is not the case for unmarried partners. In order for the surviving spouse to inherit, this must be specified in the will of the deceased. In addition, the will must comply with the legal requirements for forced heirs. Nor is the surviving spouse entitled to the usufruct of the third of improvement, which is available to the surviving partner of a married couple.

Other aspects to bear in mind

In addition to the above, it should be added that unmarried couples cannot file a joint tax return, whereas married couples can.

In terms of paid leave from work, health care and leases, the advantages are exactly the same. On the other hand, it is formally considered that unmarried couples have the same options to adopt as married couples, but in practice it has been shown that this is not the case and that their chances are much more remote, especially when the adoptees come from foreign countries.

In short, marriage is a much more legally secure form of partnership and is better regulated than unmarried partnerships. However, it is also more flexible. We hope that, based on what we have told you here, you will be able to make a well-informed decision. If you have any doubts, please contact the lawyers specialising in unmarried couples at G. Elías y Muñoz Abogados.