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Cohabitation

You have to know that about the extramarital cohabitation

Dr. Britta Beate Schön
Expert in law

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

For many couples, the extramarital cohabitation forms the preliminary stage for a marriage (perhaps) in the future. This article presents the most important legal information for this way of life. The article right to compensation in the case of unmarried cohabitation describes in particular whether and when compensation claims to the partner could exist in the event of a separation without a partnership agreement. The article marriage on trial should provide a particularly easy introduction. To understand the legal context, the other articles should therefore also be used if necessary.
Principle: The extramarital cohabitation ("marriage-like community") is not regulated by law. For legal reasons, it therefore makes sense to agree on legally binding regulations. This applies to living together and to special cases (e.g. separation or death of the partner).

Life forms of partnership in the legal sense

What is meant here by the concept of a marriage-like community is the long-term coexistence of two people of different sexes without a formal marriage or, in simple words: the cohabitation of a man and woman without a marriage certificate (illegitimate cohabitation). There are many reasons why legal marriage is deliberately not entered into. Just one example: loss of maintenance claims to the state or to divorced spouses. See, for example, discontinuation of a widower's or widow's pension.
For same-sex civil partnerships, reference is made to the article on the Civil Partnership Act (LPartG). The term "community" is therefore not to be confused with the term "living community". Legally, a distinction must be made between the following two forms of life outside of legal marriage:

  • Non-marital cohabitation (marriage-like community), which partly develops legal effects of cohabitation similar to marriage through case law and in selected individual laws
  • Registered civil partnership, which according to the Civil Partnership Act (LPartG) has largely been aligned with the legal norms of a legal marriage

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Right of the illegitimate cohabitation

The law of the illegitimate cohabitation ("marriage-like community") is shaped by judges' law. According to the jurisprudence of the Federal Constitutional Court (example: decision of 02.09.2004 - 1 BvR 1962/04), a marriage-like cohabitation is solely the cohabitation of a man and a woman, which is created on a permanent basis, does not allow any other cohabitation of the same type and is internal It is characterized by ties that establish mutual responsibility between the partners, i.e. that go beyond relationships in a purely household and economic community.
It is not enough for two people to have the same registration address. Strict requirements must be placed on the seriousness of such a community. It depends in particular on their durability and continuity as well as other circumstances such as the joint care of relatives. In contrast, the existence of a sexual relationship is not a criterion for a marriage-like community. What is important, however, is the existence of a community of responsibility and responsibility.

Legal effects in a civil partnership

The illegitimate partner is not provided for in the legal succession. Unmarried partners have no social security claims (e.g. entitlement to a survivor's pension in the event of the death of one partner) of the other partner. The surviving partner from a cohabitation similar to marriage is in no way to be equated with the legal status of the surviving spouse.
According to social law, and here in particular to basic security for jobseekers and social assistance, the income and assets of the partner of the needy have to be taken into account for the means test in accordance with the regulations applicable to spouses, even in a marriage-like community.
In some judgments, however, case law has recognized legal effects in a marriage-like community based on family law. Particularly noteworthy here is the BGH judgment of July 9th, 2008 - XII ZR 179/05, which affirms a compensation claim after the end of an illegitimate cohabitation (similar to a compensation claim in the case of marital cohabitation).
In both cases, one partner had invested considerably more in a house that was shared, but either owned by the other alone or half owned by both partners than the other partner. The Federal Court of Justice has thus accepted a claim for compensation in these cases. Of course, this does not mean that purchases and expenses in the context of daily coexistence also have to be compensated if the cohabitation fails.

Simple checklist for legal relationships in the community

With regard to individual high-quality assets (house, car, company) there may be an internal company or another joint participation may be considered. In such cases, there is also a dispute and, if necessary, the other partner is entitled to payment of a compensation amount.
If, at the end of the partnership, it can be clearly ascertained that a partner has brought certain valuable items into the community, these items also belong to him when the partnership is separated. If household items or other valuable items are purchased together, they generally belong to both partners.
Financial contributions from a partner that serve the direct implementation of the community, such as rent or household money, are not gifts and can therefore not be reclaimed at a later date.
Even larger donations to the partner can only be reclaimed in exceptional cases according to the general donation law (see also below).
Unpaid work in the business of the partner also does not usually justify any claim to compensation in the event of the termination of the cohabitation without a special agreement.
In social law, the income and assets of partners in an extramarital cohabitation are taken into account, especially in means tests.
In order to better prevent legal disputes and legal uncertainties, it is advisable for rational partners to draw up a paper that regulates the essential aspects of living together and lists the property brought in. A short text is often enough. It doesn't always have to be a real contract. For a better understanding of the law, however, the article with information on the partnership agreement in the case of an illegitimate cohabitation may also be helpful.

Marriage-like community in insurance law

The policyholder's claim for compensation is usually transferred to the insurance company upon payment by the insurer ("transfer of claims for compensation"). However, in accordance with Section 86 (3) VVG, this does not apply if the policyholder's claim for compensation is directed against a person (who did not act deliberately) with whom he lived in the same household when the damage occurred. Background: The "family privilege" is intended to avoid disputes in the event of harm in the interests of domestic family peace.
By deleting the requirement of family membership in the new Section 86 (3) VVG, the legislature has expressed that the restriction to family members in a domestic community no longer corresponds to today's social conditions. The family privilege therefore also applies in a non-marital partnership (BGH of April 22, 2009 - IV ZR 160/07).
It remains to be seen whether the jurisprudence in social law also extends the family privilege in the case of claims against persons liable for damages: Thus it says in Section 116, Paragraph 6, SGB X: living with the injured party or his bereaved family members is excluded. " The illegitimate partner is not a family member. According to this, either the text of the law has to be changed or the case law would have to interpret the term "family member" very broadly in this case.
Example for Section 116 (6) SGB X: A spouse causes a traffic accident while driving a car, with the accompanying spouse being seriously injured. Because of the aforementioned privilege, the health insurance company cannot claim the costs of medical treatment and care from the "spouse at the wheel".
The partners of an illegitimate cohabitation can also have a wedding in front of the church altar. This means that couples can be married in church even if they have not previously been married in a civil ceremony. According to the amended Personal Status Act, church weddings and state weddings are two completely separate measures. From a legal point of view, nothing changes for partners who are only "married" in the church. In the case of a marriage without a registry office, the partners are legally regarded as a illegitimate union (see wedding without a registry office).

Income tax and artificial insemination

According to the judgment of the BFH of May 10, 2007 - III R 47/05, the costs of artificial insemination for the partners in a civil partnership are to be recognized as extraordinary burdens. In a departure from its previous case law, the Federal Fiscal Court (BFH) approved the expenses of an unmarried woman for artificial insemination with the semen of her life partner for deduction as an extraordinary burden according to § 33 of the Income Tax Act.

Common bank accounts and debts

First of all: Current accounts are so inexpensive to manage today that it does not make sense to just keep one joint account for reasons of cost. Therefore, in everyday life either only separate checking accounts are kept for the two partners or a joint savings or checking account is kept in addition to the separate checking accounts.

In the case of a joint account, a distinction must be made between the "And account" and the "Or account". With the "And-Account" only both parties can dispose and with the "Or" account each partner can dispose alone. For practical reasons alone, "or" accounts are predominantly used.
Granting a power of attorney for a bank account needs to be carefully considered. Because anyone who has a power of attorney for a current account can dispose of an existing credit and also use an overdraft facility that has been granted. However, it is not possible to take out new loans with a power of attorney at a bank account. According to the bank forms, however, existing credit lines can be used for the account (see also powers of attorney for a bank account).
There is also a lot of quarrel with debts taken on during the cohabitation. When taking out a loan, the partners often commit themselves to the bank as joint and several debtors in order to receive a small interest rate advantage because of a slightly better credit rating. Or only one partner takes out the loan and would like to get a portion back if the other partner separates. However, he is often left sitting alone on his debts.

Gifts to the partner

As a rule, there are no legal peculiarities to be observed with the usual occasional gifts. Even larger gifts can only be reclaimed in exceptional cases. The situation is different when particularly large assets are transferred to the partner. If, for example, the person giving the gift is obliged to provide maintenance to other people, the donation can be viewed as legally ineffective - because it is immoral.
In addition, a donation can be revoked due to gross ingratitude (breach of trust). Example: The partner has accepted a valuable gift although he (she) has already turned to another partner at the time of the gift.

High expenses before the marriage if the marriage fails later

Financial disputes in the event of a divorce can go back to the time of the engagement or premarital cohabitation. If substantial payments are made in the premarital period for the realization of the cohabitation and the later marriage without special agreements, these expenses can be deducted from the initial assets if necessary and exceptionally for the calculation of the gain compensation.
These expenses can also include work performed by close family members. Example: High personal contributions ("muscle mortgage") in the construction of a single-family house by the father of a spouse during the premarital period. If partners create a common value such as a house to use together for the duration of the partnership - and which should jointly belong to them - this benefit establishes a right to compensation in the event of a divorce. Source: Labored for the fiancé: Compensation after a failed marriage?

More on this in the legal protection insurance guide

  • You can get good legal protection for less than 300 euros a year.
  • Tariffs recommended by us: Arag Aktiv Komfort, Auxilia Jurprivat, WGV Optimal

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