De facto cohabitation: property protections and the cohabitation agreement

A growing number of couples in Milan, and across Italy, choose to share their lives without entering into marriage or a civil union. The choice has many reasons, personal, professional or simply circumstantial, but it carries a legal consequence that often surfaces only when the relationship comes under strain: cohabitation produces fewer automatic property protections than marriage, and what protections it does produce often require a written agreement to become effective. Understanding the rules is particularly important for international clients, whose home jurisdictions may treat unmarried partners very differently.

The legal framework

Italian law recognised de facto cohabitation as a distinct institution only in 2016, with Law 76/2016, commonly referred to as the Cirinnà Act after its parliamentary sponsor. Paragraphs 36 to 65 of Article 1 of that statute define a convivenza di fatto as a stable emotional bond between two adults of age, joined by mutual moral and material assistance, and not bound by marriage, kinship, affinity, adoption or a civil union. The cohabitation is formally evidenced by an entry in the registry of residents (anagrafe) showing a shared household.

The protections that flow from this status are real but limited. Cohabiting partners enjoy mutual rights of visit and assistance in hospital and prison settings; they may be designated as decision-makers for medical treatment; the surviving partner has a right to continue living in the shared family home for a period that varies with the length of the cohabitation and the presence of children; and the partner who lived in the home owned by the deceased may have certain successor rights to a lease. The Court of Cassation, with judgment no. 12345/2024, has clarified that these protections operate even where the cohabitation has not been formally registered, provided that its substantive existence can be proved.

What the Cirinnà Act does not introduce, however, is any statutory right of succession between cohabiting partners. In the absence of a will, the surviving partner inherits nothing, regardless of the length of the cohabitation. Likewise, no general right to spousal-style maintenance arises automatically: the law provides only for a limited maintenance claim, payable for a period proportionate to the cohabitation, if the partner who claims it is in a state of need and is unable to provide for their own livelihood. As Italian commentators have put it, de facto cohabitation calls for considered financial planning: the cohabitation agreement is the principal protective instrument.

The cohabitation agreement

The contratto di convivenza, introduced by paragraphs 50 to 64 of the Cirinnà Act, is the central legal tool for couples who want to regulate the economic side of their life together. It is a written agreement that must be executed before a notary or an attorney, who certifies the signatures and verifies that the content is consistent with mandatory rules of law and public policy. The agreement is then transmitted to the relevant municipality so that it can be noted in the records.

A well-drafted cohabitation agreement typically addresses three areas. The first is the contribution of each partner to the costs of common life: rent or mortgage on the shared home, utilities, food, recurring expenses, and the way in which non-monetary contributions, such as the work of one partner in the household or in the other’s business, are recognised. The second area is the property regime applicable to assets acquired during the cohabitation: the parties can choose between full separation of estates, the default rule, or a form of community of property modelled on the matrimonial comunione legale. The third area concerns the consequences of the end of the relationship, including the timing of the move-out, the use of jointly purchased furniture and durable goods, and the existence and amount of any maintenance claim.

Cohabitation agreements may be amended at any time by mutual consent, in the same form as the original, and they terminate automatically on the death of one partner, on marriage or civil union of one of them with a third party, or on withdrawal. Withdrawal is a unilateral right and may be exercised at any time, with the only formal requirement being notification to the other partner and registration with the municipality.

Rights and protections

Beyond the cohabitation agreement, partners can and should consider a number of complementary instruments to round out their position. A will is the only way to ensure that the surviving partner inherits anything, and Italian forced-heirship rules mean that the freely disposable portion of the estate must be carefully calculated where the testator has children or surviving parents. A life-insurance policy with the partner as beneficiary, or a designation of the partner as recipient of severance pay and pension benefits, can provide further protection that operates outside the estate.

Cross-border situations deserve specific attention. EU Regulation 1259/2010 (Rome III) and Regulation 650/2012 on succession allow, in certain circumstances, a choice of the law applicable to property relations and to inheritance. For couples where one partner is foreign or holds assets abroad, planning these choices in advance, together with the cohabitation agreement, can avoid surprises and unintended conflicts with the rules of another jurisdiction.

Studio Legale Lo Torto frequently advises Italian and international cohabiting couples on the drafting, review and update of cohabitation agreements, and integrates this work with succession planning and cross-border coordination through its offices in Milan, Rome and Venice.