What is "Factual Marriage"?
Well, it is nothing, because "factual marriage" does not exist. In Spain, according to article 49 of the Civil Code, there is only one marriage, the civil marriage, although it admits two different forms, the one celebrated in civil form, and the one celebrated in religious form). Any other "institution" is not marriage, but something else. In the context in which we are speaking, what many people refer to when they speak of "common-law marriage" is the figure of the "domestic partnership", or "stable or permanent common-law union". However, this is not remotely similar to marriage, which does not mean that de facto unions do not generate legal or juridical effects. To begin with, apart from foral rights, the regulation of marriage is uniform for the whole of Spain, whereas in the case of de facto unions, their regulation and effects depend on the autonomous regions and, to a certain extent, on the local councils, so that to speak of uniformity with regard to de facto unions is more than unfortunate. I am not saying that marriage is superior or inferior to de facto unions, what I am saying is that they are different things, and therefore have different effects, even though they may coincide on some points, just as an aeroplane and a train are similar in that they are both means of transport.
The reason I am writing this is because my experience tells me that at least 50%, or more, of people who live together as a common-law couple, believe that they have the same rights as two married people, and this is simply not the case, and when they find out is when, as with married couples, they enter into a crisis and want a "divorce", and they want a divorce, they get into a crisis and they want to "divorce" or "separate" and then they realise that they cannot do it because they are not married, and that certain things that are "automatic" in the case of divorce for married couples, are much more difficult in the case of unmarried couples, (e.g., divorce is not "automatic" in the case of unmarried couples, but much more difficult in the case of married couples). , The presumption of cohabitation, the right to a compensatory pension, null inheritance rights between the partners unless the Autonomous Community where they live has regulated something different...), and this is because while the Civil Code has a complete regulation for marriage, it does not have one for de facto unions, so that everything that has not been previously agreed, enters a kind of "via crucis" in the face of any claim, and all this even if they have been registered in the register of the Autonomous Community or the Town Hall of their home. Moreover, it does not matter if you have lived together all your life, because the time you have lived together does not give you any more rights.
So, do not take this issue lightly, and ask your lawyer whether in your particular case it is sufficient to register a de facto permanent partnership, or whether, on the contrary, it would be advisable to think about marriage. It is true that many people argue that they don't need papers to love each other, but if they register as a common-law couple, aren't they signing papers anyway? In any case, if that is how they feel, there is nothing to object to, but there should be no surprises if, because of the lack of papers, they discover at the worst possible moment that they also lack certain rights.
Don't forget that if you have any questions, you can contact me at dtierno@icacordoba.es
David Tierno García
Attorney at Law
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