With the entry into force of the Cirinnà Law ( Law No. 76/2016) the concepts of civil unions between persons of the same sex and of de facto couples (both heterosexual and homosexual) were defined by law, and therefore protected without legal constraints: the first are equivalent to a family and enjoy the same rights from the civil point of view. Couples are not legally recognized as a family; in the face of some benefits, they have different limits, especially in the field of inheritance. All this also has effects on mortgage regulations.
Cirinnà Law for civil unions: the practical aspects
With the Cirinnà Law that officially recognizes civil unions in our country , experts have questioned what could be the direct consequences of this legislation on the granting of loans for the purchase of a house.
The most common opinion is that with the formalization and regulation of civil unions, when applying for and granting the loan the same identical conditions must be applied , both in terms of communion of assets and in separation, provided for in the report matrimonial. On the other hand, at the formal level, the legal recognition of a de facto couple follows the same administrative procedure of civil marriage. The decree on civil unions, in fact, provides that recognition must take place before a public official, in the presence of two witnesses, with the only difference that the obligation of loyalty is not provided for in the civil ceremonial ritual.
Unless otherwise specified, therefore, one automatically enters the regime of the communion of goods and, therefore, one can not apply a different regulation in matters of mortgages with respect to a married couple with civil marriage.
Therefore, with the introduction of the Cirinnà Law and the recognition of civil unions, legally recognized couples enter into a de facto matrimonial regime that entails the same burdens and advantages already regulated previously and for the purposes of the loan there are no substantial differences in procedures and disbursement and, therefore, there is only the recognition of a condition of official cohabitation that on a financial level equates unmarried couples with married couples.
Mortgages and civil unions: the details
Analyzing in detail the Italian regulation on mortgages and trying to go into the specific case of a de facto couple officially recognized by civil unions, immediately emerges the aspect of the tax deduction .
In particular, a joint mortgage can be stipulated and, in that case, if the communion of assets is in force, each element of the couple can proceed to the deduction of the interest payable as required by the law, which provides for a deduction of 19% with a ceiling maximum fixed at 4 thousand euros but, if one of the two owners of the loan is borne by the partner, the latter has the possibility to deduct up to 100% of the portion of the interest expense. This is a not-so-important step forward for unmarried couples in Italy who, even when they have to start a mortgage, are considered in all respects like a family.
The same argument, of course, is made in the case in which a legal separation occurs with a mortgage in place: as in the case of married couples, if a de facto couple is dissolved the regulation is subject to Title III of Book I of the Bonds of the Civil Code, that is the part related to the passage of food. In that case, the part not economically weaker, considered therefore more able to provide for the economic sustenance of the other, can be obliged by the judge to continue to pay in full the installment of the loan, obviously providing the deduction of that sum from the check maintenance. This even if the house is assigned to the retained part of the couple, just as in the marriage separation procedure.
Going to analyze the most delicate case, namely the death of one of the members of a de facto couple linked by a civil union, the other component should happen to the deceased as an heir , thus acquiring the right to the property of the property, if not otherwise specified in the will but, at the same time, in the case of the presence of a loan still on, the same heir inherits the obligation of extinction . This obligation lapses only if the heir formally renounces the inheritance and, therefore, also the ownership of the property.
Mortgages and couples that are not legally recognized
Among the de facto legally recognized couples with civil unions and those that live together in a de facto situation without any legal recognition, there are some differences in the matter of mortgage and real estate.
In this case, everything concerning the property regime can be regulated by a marriage contract which specifies the patrimonial regime (communion, separation) that one intends to maintain, and the way in which one intends to regulate each type of slope in case of the dissolution of the relationship or of the death of one of the two companions
Specifically, in fact, even if non-jointly de facto unmarried couples have been equally recognized within the Cirinnà Law and can regulate their property relations through a “cohabitation agreement”, in the event of death there are considerable differences .
In fact, when one of the two cohabitants fails, the other has the right to remain in the home for at least another two years or for a period equal to cohabitation if more than two years and in any case not later than 5 years : in this case , a discourse related to the inheritance can not be in force because the cohabitant is not recognized as an heir and the house passes automatically to the natural or acquired heirs of the deceased, according to the law.
In the case of a lease contract , however, if the holder of the contract dies, the cohabitant has the right to take over the same contract.