EVERSHEDS BITĀNS

1. EVERSHEDS BITĀNS REGISTERED PARTNERSHIPS AND MARRIAGE: THE INSTITUTION OF COHABITATION OUTSIDE MARRIAGE AND ITS POSSIBLE DEVELOPMENT IN LATVIA Lecturers: Agris Bitāns, Sworn Advocate Viktorija Jarkina, Sworn Advocate

2. Introduction to the legal regulation of partnerships As opposed to the legal institution of marriage, the legal regulation of partnerships can be seen as a relatively recent phenomenon within law, which also determines the lack of uniformity across legal regimes, and various legal systems display substantial differences.

3. Introduction to the legal regulation of partnerships In recent years, a much more liberal attitude can be observed towards cohabiting couples. In every country there are partners who have chosen permanent cohabitation outside marriage, even though there are no legal or actual obstacles for them to marry.

4. Introduction to the legal regulation of partnerships • Various terms are used to describe a partnership between a man and a woman: • “partnership” (Luxembourg); • “unregistered partnership” (Hungary); • “partnership of a man and a woman” (Peru, Brazil); • “opposite-sex partnerships” (Spain); • “unregistered unions of opposite-sex partners”; • “non-marital relationships” (Belgium) and others.

5. In order to describe a situation where a woman and a man live as de facto spouses but have not registered their marriage formally, the following terms are used:

6. Introduction to the legal regulation of partnerships • In practice, two types of partnerships can be distinguished: • registered partnerships; • unregistered partnerships. Differences: • to acquire the status of an unregistered partnership outside of marriage, no separate formalities must be arranged • the status is acquired based on factual circumstances

7. Introduction to the legal regulation of partnerships • Three types of state regulation may be tentatively discerned: • states which provide for the legal regulation of unregistered partnerships outside marriage; • states which provide for the legal regulation of registered partnerships outside marriage; • states which provide for the legal regulation of both unregistered and registered partnerships outside marriage.

8. A summary of regulation in some EU countries

9. Different approaches exist to defining partnerships and recognising them in practice: • concubinage (France) - a de facto union which takes the form of a stable and long-term relationship between same- or opposite-sex persons who live as a couple; • cohabitation (Sweden) - a long-term relationship of two cohabitants in a joint household; • concubinage (Hungary) - unless otherwise prescribed by the law, cohabitation of two persons in a joint household without entering into marriage, with an existent emotional bond and economic participation; • cohabitation (Slovenia) - permanent cohabitation of a man and a woman not married to each other.

10. Characteristic criteria of partnerships outside marriage In the majority of states, in order to recognise unregistered partnerships, it is necessary to establish the following: that the relationship has lasted a certain period; that the partners are of opposite sexes; that neither partner is married; that the partners have reached the minimum age required for entering into marriage; that the partners have a child together; that no other obstacles exist preventing the partners from eventually marrying.

11. Duration of partnerships outside marriage One of the most widespread criteria which needs to be fulfilled in order to recognise an unregistered partnership is a certain period of duration of the partnership. Most states have set a specific minimum duration requirement. The length of this period usually ranges between one and five years. In judicial practice it has been emphasised that partnerships must also be uninterrupted and stable; thus, verifying a union outside marriage is subject to an evaluation by those who apply legal standards.

12. The existence of a child The time required to acknowledge the duration of a partnership outside marriage may be reduced if the persons in question have a child together. The presence of a child requires that additional responsibility be assumed not only by the parents, but also by the state, in providing additional protective measures for the child.

13. The existence of a child A partner in a partnership outside marriage may have a child from a previous relationship; thus it is possible to distinguish the following models of partnerships outside marriage with respect to children: the parents of the child are a couple in a partnership outside marriage; the child was born while its parents were in a partnership outside marriage, yet this partnership outside marriage has broken down, and the child lives with one of the parents, who lives in a new partnership outside marriage; the child was born while the parents were married, yet the marriage has been dissolved, and the child lives with one of the parents, who lives in a new partnership outside marriage.

14. The existence of a child It must be noted that, in a number of states, the existence of an unregistered partnership is not a sufficient basis for automatically establishing the paternity of a child. In cases where partners have a child together, it would be advisable to establish a shorter duration requirement for recognising a union outside marriage so that, should it break down, the child’s parents’ property may be distributed fairly, thus also allowing for the rights of the children to be protected, bearing in mind that the child would have to continue living with one of the parents.

15. The exclusivity of partnerships outside marriage There exists a consensus among practitioners that partnerships outside marriage should be subject to an exclusivity requirement in order to allow for the legal consequences which are applicable to the partnership to set in. That is, only persons who are not married or who belong to no other partnership outside marriage may be subject to a regulation of partnerships outside marriage. It must be considered whether a partnership can be recognised if one or both partners are married to third parties.

16. Minimum age requirement for partnerships outside marriage In most states, in order to extend the regulation of partnerships outside marriage, a person must have reached a specific age. In the case of Latvia, it would also be necessary to stipulate that a partnership outside marriage is only possible for persons who have already reached the age of 18, except where a person has been recognised as having reached majority at the age of 16 by a ruling of the family court.

17. The importance of gender in partnerships outside marriage A number of states apply the regulation of partnerships outside marriage not only to opposite-sex couples but also same-sex couples, or apply the regulation of partnerships outside marriage to any combination of genders. In Latvia, partnerships outside marriage could only be recognised with respect to partnerships of a man and a woman. Other requirements may be set for recognising partnerships, such as a prohibition to enter a partnership outside marriage if a person is incompetent or a close blood relation is present, and others.

18. The importance of gender in partnerships outside marriage • In some states, the legal regulation provides for a number of factors which may be considered in determining whether a partnership outside marriage exists in a particular case. Such requirements include: • a shared residence; • the existence of sexual relations; • a degree of financial dependency or interdependence; • the presence of any arrangement with respect to financial assistance; • care and support for children; • participation in the household. None of these criteria is mandatory, yet the court may consider them when determining whether a partnership outside marriage exists between the partners.

19. Scope of application of the legal regulation of partnerships One of the pending problem issues in the area of partnerships is the scope of application of partnerships. Undoubtedly, one of the essential issues to be resolved when adopting a regulation of unions outside marriage would be establishing a proprietary regime between the partners. This issue is particularly important in the event of partnerships outside marriage breaking down.

20. Property relations of partners In partnerships outside marriage, the property relations of the partners are most frequently regulated with respect to the time of their termination. There are countries which afford such partners broad rights that are comparable to those of spouses. In some cases the law prescribes that the partners’property, accrued during the partnership, be divided equally in accordance with its value, provided that a partner request such division of property no later than within one year following the break-down of the partnership outside marriage (Sweden, New Zealand).

21. Property relations of partners There are some countries that do not apply the legal regulation as prescribed for marriage, extending only separate property rights instead. For example, partners are not equal owners of the property accrued within a partnership outside marriage, but rather according to the contribution made by each respective partner. When determining the contribution of each partner, managing the household can be expressed in proprietary terms, and only in cases where the material contribution of each partner cannot be assessed separately, the property is to be divided equally (Hungary).

22. Property relations of partners In states which have not developed and adopted a specific legal regulation with respect to the proprietary aspects of unregistered partners following the breakdown of the partnership outside marriage, the partners may become vulnerable or they may become subject to general contract rules, regulations concerning unjust enrichment, etc. This approach exists in Germany, where no separate legal regulation for partnerships outside marriage has been passed, or in the Netherlands, where merely a couple of rules have been adopted regarding unions outside marriage, but none of them provides for rules to govern the division of the partners’ property after the break-up of the relationship.

23. Maintenance obligation of partners Another aspect to be noted is the legal regulation of the obligation to provide the maintenance of the other partner following the break-up of a partnership outside marriage. In some states, the right to maintenance is granted to a partner who lacks sufficient means to maintain him- or herself, who is unable to extract them from the property he or she owns and who is unable to work or find gainful employment. A claim to this effect may also be filed after the termination of the partnership outside marriage, but no later than within six months (Hungary). The legal systems of several states provide for no such obligation to maintain a partner following the termination of a partnership (the Netherlands, Hungary, Norway).

24. Partners’ financial rights Given that the legal regulation of partnerships outside marriage is fragmentary and states have adopted and enforce varying rules with respect to them, a unified legal basis has not taken shape in this area either. Yet although partnerships outside marriage are still not given the same standing as marriage, there is a definite movement in this direction.

25. Partners’ financial rights • Some examples: • In Norway, partners with joint children or who have been previously married are given virtually the same status as spouses on matters of social protection. Partners also have the same legal status as spouses in terms of taxation. In contrast to ordinary heirs, partners are relieved of the inheritance tax. • In Portugal, unmarried couples are deemed equal to spouses in terms of income tax obligations and the respective exemptions. • In Hungary, unmarried partners have the right to a special benefit in the event of the partner’s death, provided that the partners have children together and that they have lived together for at least one year, or, if they have no children, they have lived together for ten years or more.

26. Family law relations between partners The overall trend in connection with partnerships outside marriage illustrates that such relationships do not produce broadly recognised family law relations, for example, with regard to a person’s right to change his or her family name, the obligation to care for the partner and to observe mutual fidelity. However, there are exceptions: for example, Hungarian law stipulates that a partnership outside marriage creates a right and an obligation for the partners to care for each other.

27. Legal obligations towards children Although the obligation to maintain a legal relationship and care and other obligations with respect to parents and children are the same for partners outside marriage as they are for spouses, some states present certain exceptions, since the mutual relationship between the child and its mother’s partner may be more complicated than within a marriage. With respect to the adoption of children it must be noted that in many states it is a privilege afforded only to married couples. In some cases, it is permitted within partnerships outside marriage as well, however, a number of significant restrictions exist at the same time.

28. Inheritance rights The legislation of some states provides that unmarried partners inherit according to the sameprocedure as married spouses, whereas in other states there are no such rules. In states where the law does not permitintestacy for partners, the only way for them to inherit each other’s estate is on the basis of a respective will. Moreover, with respect to testate succession, a number of restrictions have been prescribed in order to protect the legal interests of a child or any other forced heir.

29. Conclusions • Differences between unregistered and registered partnerships can be observed in terms of the application of a certain procedure. • The objective of both marriage and partnerships outside marriage is to create family relationships and to produce offspring, therefore it would be incorrect to separate these concepts according to the objective for which the relationship has been formed. • In states where partnerships are not legally regulated, individuals often choose them in order to avoid obligations that are legally imposed by marriage, as well as to avoid the formalities associated with establishing and terminating relationships through state authorities.

30. Conclusions • After reviewing legal regulations in a number of states, the following basic differences were detected between partnerships and marriage: • partnerships are not granted the same breadth of legal protection as marriage; • partnerships do not give a partner the right to change his or her family name; • there are states which do not recognise partnerships, which may cause problems when establishing a legal relationship to a partner whose legitimate rights are recognised at the national level but not in the particular state; • a partnership does not give a right to acquire citizenship or a residence permit; • partners are usually not automatically considered the parents of a child, and the paternity assumption is usually not in effect.

31. Partnerships in Latvia The term “partnership” is not regulated by the Latvian legislation. Colloquially, partnerships are usually referred to, incorrectly, by the widely known term of “civil marriage”. It is right to acknowledge that partnerships are nothing new for Latvia and they exist side by side with marital relationships as a peculiar alternative to marriage.

32. Partnerships in Latvia The issue of partnerships is relevant in Latvia precisely because of the wide occurrence of such unions between a woman and a man that are not registered as marriage. The topicality of partnerships in Latvia is indirectly highlighted by statistics on children born outside of marriage. For example: In 2007, 10,000 children, or 43% of the total, were born extramaritally, whereas in 1980, 4,434 children, or 12% of the total, were illegitimate.

33. Partnerships in Latvia • According to information at the disposal of the Civil Registry Department, the number of children born in 2007 reached 23,200, of those: • 1733 children had no record of a father, • the paternity of 8762 has been established on the basis of a joint petition of the parents, • the paternity of 288 was established on the basis of a court ruling. It is possible to conclude that, in 2007, almost 50% of all children born in that year were born outside marriage.

34. Partnerships in Latvia It is also important to establish the opinion of Latvian residents on the possibility of cohabiting with an opposite-sex partner without registering a marriage. Of all respondents surveyed, 72% consider it acceptable for partners to cohabit without registering a marriage. Partnerships in Latvia form a significant share of unions existing outside marriage; the number of children born in such unions is increasing. Residents of Latvia consider acceptable and in accordance with their wishes a relationship regime without entering into marriage, which confirms the support of the Latvian society for partnerships and the currency of the issue.

35. Central problems for Latvia • the choice of terminology to be applied to partnerships; • the definition of the concept of partnership or establishing the characteristic criteria for partnerships; • the scope of application of the legal regulation of partnerships.

36. Choice of terminology to be applied to partnerships In recognition of the traditional Latvian usage and the terminology used in the Civil Law, it is proposed that a factual cohabitation without registering the marriage between a man and a woman be described by the term “union outside marriage” („ārpus laulības savienība”). In opting to use this term, the legislature would by definition indicate to the enforcing authorities several aspects outlined further:

37. Choice of terminology to be applied to partnerships • the words “outside marriage” would point to the fact that unregistered partnerships are possible only in the event that neither partner is married or that the partners are not married to each other and, secondly, it would point to the fact that unregistered partnerships may exist only between a man and a woman, as the word “marriage” may only be applied with respect to a union of a man and a woman. • the explanation given in Latvian dictionaries for the word “union” (“savienība”) –unity (with respect to people, a group of people) – would indicate to the enforcing authority of the law the need to establish the desire of the partners to be united.

38. Definitions of the concept of partnership or establishing the characteristic criteria of partnerships A union outside marriage may be characterised as a long-term, stable relationship of two persons of opposite sexes who live together and where a joint household exists, for the purpose of forming a socially significant bond between the partners and their relatives without entering into marriage. For the sake of clarity, in addition to a definition of a union outside marriage, conditions should beprescribed required for recognising a union outside marriage.

39. Definitions of the concept of partnership or establishing the characteristic criteria of partnerships • In most states, in order to recognise an unregistered partnership, it is necessary to establish the following: • that the relationship has lasted a certain period of time; • that the partners are of opposite sexes; • that neither partner is married; • that the partners have reached the minimum age required for entering into marriage; • that the partners have a child together; • that no other obstacles exist preventing the partners from eventually marrying.

40. Definitions of the concept of partnership or establishing the characteristic criteria of partnerships • In developing a regulation of partnerships in Latvia, the most important characteristic elements of unions outside marriage are as follows: • the duration of the relationship; • the permanence of the relationship; • a joint household; • the existence of a socially significant bond between the partners. Establishing the above elements only has primary significance in unregistered partnerships.

41. Scope of application of the legal regulation of partnerships A union outside marriage should not be equated completely to marriage, otherwise the institution of marriage loses its meaning and purpose. In protecting the meaning of the institution of marriage, it would be advisable to regulate the issues of property rights, inheritance rights and family rights as they relate to partnerships. One of the most substantial issues to be resolved when adopting a regulation of unions outside marriage would be establishing a proprietary regime between partners.

42. Scope of application of the legal regulation of partnerships To ensure the certainty of the regulation of legal relationships, it is advisable to give preference to a model of a registered union outside marriage, thus simplifying the procedure of recognising partnerships. However, a regulation with respect to unregistered unions outside marriage should also be provided regarding children’s rights, leaving the regulation of inheritance rights, property rights and other legal relations to general civil regulations.

43. Scope of application of the legal regulation of partnerships Any property belonging to a partner before the partnership was established should not be subjected to the division of property between partners in the event of the union outside marriage being terminated. One of the essential issues is the proportional distribution of joint property in the event of the break-up of a partnership. In order to apply the rules relating to the distribution regime of the property of spouses to the division of partners’ property, it is necessary to establish the existence of a partnership.

44. Scope of application of the legal regulation of partnerships One of the essential issues to be resolved when adopting a regulation of unions outside marriage would be establishing a proprietary regime between partners. This question is particularly important in cases when unions outside marriage break down. With respect to joint property accrued during the union outside marriage, it must be assumed that the property acquired jointly during the union outside marriage belongs to the partners in equal shares.

45. Scope of application of the legal regulation of partnerships The same principle should be extended to cases where a union outside marriage ceases to exist (including cases where it is declared null and void), stipulating that the property acquired jointly be distributed between former partners in equal shares. If the legal proprietary relations of partners cease upon the death of one partner, then, once the surviving partner’s share has been deducted, the share of the deceased partner passes to his or her heirs.

46. Scope of application of the legal regulation of partnerships Pursuant to inheritance regulations, a partner would be entitled to inherit the other partner’s estate, if the latter were to draw up a respective will. There should be no obstacles to deem the partner a forced heir. On matters of family law, the regulation of the personal relationship between spouses could be applied, equating partners to spouses on the matter of establishing the origin of a child and the provision of the rights of a child, as well as establishing rules similar to those applied to marriage for the event when a partnership is “entered into” or breaks down.

47. Scope of application of the legal regulation of partnerships Partners are liable with their entire property for obligations jointly entered into while in a union outside marriage and each with his or her own separate property if joint property should prove insufficient. The property of one partner is not liable for the other partner’s liabilities. A partner is liable with his or her separate property for the other partner’s debts in favour of the family and the joint household, but only if the property regarded as joint and the other partner’s separate property should prove insufficient.

48. Scope of application of the legal regulation of partnerships For purposes of protecting the interests of a child, it is necessary to apply the provisions of the Civil Law regarding the mutual rights and obligations of parents and children to children born in a union outside marriage. With respect to inheritance rights, legal inheritance could be applied to partners and children born in a union outside marriage by providing that a partner is invited to inherit by law, and the legal right of inheritance is founded upon a family relation that arises by virtue of being born in a union outside marriage, thus expanding the circle of forced heirs referred to in the Civil Law.

49. Scope of application of the legal regulation of partnerships It must be noted in addition that, in establishing a regulation of partnerships, it is necessary to amend Article 110 of the Constitution of the Republic of Latvia, stipulating that the State shall protect the union between a man and a woman, the family, the rights of parents and children, excluding the word “marriage”, thus protecting also the rights of those Latvian residents who, for reasons of their own, have chosen not to enter into marriage.

50. EVERSHEDS BITĀNS Thank you for your attention! Offices of Sworn Advocates ”Eversheds Bitāns” Agris Bitāns, Sworn Advocate Viktorija Jarkina, Sworn Advocate