Common-law marriage or marriage: what's better when you have children?

BarcelonaWhen children arrive after several years of living together, it's often the time when many couples, if they haven't already, wonder whether they should get married or register as a civil partnership. Becoming parents involves taking into account situations you may not have anticipated and wanting to provide for the new family unit that emerges at that moment.

Some couples are clear about this, even before the arrival of their children, while others weigh up the advantages and disadvantages they may have from then on depending on their marital status. But are there really that many differences between getting married or becoming a civil partnership? In any case, it should be noted that the Spanish Constitution states that all children are equal before the law regardless of their parentage (marital or non-marital). Therefore, when it comes to the responsibilities that parents have towards their children, there is no difference between being married or not.

"It must be taken into account that, at the moment, in Catalonia, and in accordance with the Catalan Civil Code, if while you live with your partner you have a child together, you are considered a stable couple even if you have not constituted yourselves as a stable couple in a notarial deed nor have you registered in the Registry of Stable Couples of the Catalan Society of Family Lawyers. "And I say for now Because the Constitutional Court is pending a ruling on several appeals of unconstitutionality regarding the Catalan regulations governing stable couples, and this could change.

The Constitutional Court must decide whether this regulation should apply when a couple is formed by living together continuously for more than two years or by having a child together during the cohabitation. "If the Constitutional Court declares the regulation unconstitutional, thousands of cohabiting stable couples—all those who have not established a stable couple in a notarial public deed—may lose many rights, such as inheritance rights or widow's pensions."

How stable couples are formed

As Quintano points out, currently in Catalonia, stable couples can be formed in three different ways: by simply living together uninterruptedly for more than two years, by having a child together during the cohabitation, or by formalizing the relationship in a notarial public deed. "And it must be taken into account that the vast majority of stable couples are formed for the first two reasons." It is estimated that only between 10 and 15% of stable couples in Catalonia—according to Idescat, around 300,000—would have been formed in a public deed.

Dolça and Antonio have a son, Toni, who is now fifteen. They married in 2018, when Toni was nine. "Not being married when we had him only meant that we both had to go to the civil registry to register him. It was either this or having to authorize the other person so they could register him without problems." Aside from this situation, they assure that they have not encountered any other circumstances that required them to get married or register as a civil partnership.

Laia and Gerard acknowledge that they have not experienced any special circumstances due to the fact that they did not get married before the birth of their two children. "We chose to get married because, although I looked into whether there were differences between becoming a civil partnership and being married, I only found one regarding the widow's pension; with marriage it was automatic, whereas as a civil partnership you had to live together for five years [unless you had children together] and, even then, they could give you it." This is the same thing that Laia and Lluís did after having two children and after a close friend told them that he was left without a widow's pension when his wife died despite the fact that they were a civil partnership. "There are many circumstances, but I think the vast majority of couples who get married after having children do so to have everything sorted out for them. If you do it because you really want to and believe in it, you do it sooner," Laia reflects.

"If you love someone, get married!"

"I always say the following: if you love someone, get married!" explains Quintano. The legal consequences arising from marriage between spouses are very clear and extensively regulated in the Civil Code of Catalonia: general provisions and effects (articles 231-2 to 231-9 of the Civil Code of Catalonia), economic relations between spouses (articles 231-10 to 231-18 of Chapter C), 231-19 to 231-26 of the Civil Code of Catalonia), donations for reasons of marriage granted outside of the marriage contract (articles 231-27 to 231-29 of the Civil Code of Catalonia), and matrimonial property regimes (articles 232-1 to 232-38 of the Civil Code of Catalonia).

"That is to say, if you get married, you know or can know perfectly well what will happen to you both personally and financially in relation to your other spouse. On the contrary, stable couple relationships, which are those formed by two people who live together in a community of life analogous to patients without marriage, cohabitation." As Quintano points out, the problem is that the vast majority of couples do not go to the notary to establish themselves as stable couples or to explain the agreements with the difficulties that this entails in the event of a breakup.

Differences in income, separation or widowhood

Although legislation has increasingly equalized the rights of spouses and those living in a stable relationship, some minor differences still exist. Quintano points out that spouses have the option of filing joint tax returns, while those living in a stable relationship must do so separately, and only one member can form a family unit with their children and opt for joint taxation.

"In the event of a relationship breakdown, the legal consequences arising from the divorce of a marriage are or may be somewhat different from those arising from the termination of a stable relationship. Primarily in relation to the attribution of the use of the family home if there are no children and the compensatory benefit," Quintano explains.

Regarding the widow's pension, its regulation was modified as a result of the Constitutional Court ruling 40/2014, which made it essential, in order to receive it, that the stable partnership be established by a notary or registered at least two years before the death. "All stable partnerships validly constituted according to Catalan civil law by simply living together uninterruptedly for more than two years or by having, during their cohabitation, a child together, no longer meet the requirements that Social Security demands to enjoy this pension, which has led to terrible consequences," Quintano recalls.