On July 4, 2024, Italy’s Constitutional Court declared unconstitutional two articles of the Civil Code regulating family businesses to the extent they failed to protect de facto cohabitants to the same extent as other family members. (Decision No. 148 of July 4, 2024 (in Italian).)
Constitutional Question
Italian law defines “de facto cohabitants” as two adults united in a stable relationship by emotional ties and mutual moral and material assistance, who are not bound by kinship, affinity, adoption, marriage, or a civil union. (Law No. 76 of 2016, art. 1, para. 36.)
The Italian Civil Code includes two provisions specifically regulating family businesses. Article 230-bis gives certain protections to family members who work in a business mainly governed by one family member, such as the right to maintenance, participation in profits, etc. It includes as protected family members spouses, relatives to the third degree, and in-laws within the second degree, but does not include de facto cohabitants.
Article 230-ter, added by Law No. 76 of 2016, provides that a de facto cohabitant who permanently works in an enterprise of the other cohabitant is entitled to certain rights, including sharing the profits of the business and in the assets purchased with them, commensurate with the work performed.
The Constitutional Court was asked to declare the constitutional illegitimacy of article 230-bis, insofar as it excluded de facto cohabitants in the category of family members, and of article 230-ter for affording a lesser protection to the de facto cohabitant who permanently worked in the business of a deceased cohabitant. (Considerations of Fact No. 1.)
The constitutional challenge originated in a request by the Court of Cassation, which raised the question whether the challenged provisions were contrary to the Italian Constitution, including article 3 (on the guarantee of equality before the law), as well as article 9 of the Charter of Fundamental Rights of the European Union (on the right to form a family), and articles 8 and 12 of the European Convention on Human Rights (on the right to respect for family life and the right to marry, respectively).
Underlying Case
In the underlying case, a woman commenced a lawsuit against the children and co-heirs of her deceased cohabitant, requesting liquidation of her share of a family business. (Considerations of Fact No. 1.1, para. 1.)
The complainant argued that during their life together, she and the deceased acquired rural property and established a wine production company as well as a tourist business. (Considerations of Fact No. 1.1, para. 2.) The trial court rejected the complaint, noting that under the applicable provisions of the Civil Code, the surviving de facto cohabitant could not be considered a “family member.” (No. 1.2, para. 1.)
The Ancona Appellate Court confirmed this decision, noting that the cohabitation relationship had ceased before the entry into force of Law No. 76 of 2016, which established article 230-ter. (No. 1.2, para. 2.)
Before the Court of Cassation, the complainant claimed she had contributed to the family business through her work and that the challenged provisions failed to consider the changed social sensibilities on cohabitation, as well as recent constitutional jurisprudence and national legislation on same-sex civil unions. (Nos. 1.3, 1.4, and 1.5.)
The Court of Cassation, referring the matter to the Constitutional Court, noted that the Civil Code provisions regulating a family business recognize the work performed within a relationship between relatives and spouses, and that it has been a matter of contention whether this recognition should be extended to stable cohabitants. (No. 1.7.) The referring tribunal observed that article 230-ter accorded less protection to de facto cohabitants than to family members and legitimate spouses. (No. 1.8, para. 1.)
The referring tribunal highlighted that societal changes have impacted legislation and constitutional and supranational jurisprudence such that the family must now be considered in both the traditional version composed of two members of different sexes united in marriage, and in a modern form that includes persons not married, but cohabiting, whether or not of different sexes, that has been recognized as meriting protection as de facto families. (Considerations of Fact No. 1.8, para. 2.)
It asked the Constitutional Court whether perpetuating differential status for de facto cohabitants would be contrary to the dignity, freedom, equality, and protection of persons under the Constitution. (Considerations of Fact No. 1.12.)
Reasoning of the Constitutional Court
According to the Constitutional Court, article 29, first paragraph of the Constitution protects the “family as a natural society founded on marriage.” (Considerations of Law No. 5, para. 1.) However, the Court noted statistics showing that free unions now outnumber families founded on marriage. (No. 5, para. 3.) The court said that while the change in attitudes and social customs should be recognized, different normative treatment between de facto families and families formed by marriage is justified by the stability, certainty, reciprocity and correspondence of rights and duties that arise only from marriage. (No. 7, para. 5.) The court determined, however, that de facto cohabitation, like civil unions, belongs to the social formations recognized in the Constitution within which the individual affirms and develops his or her own personality. (No. 5, para. 2.)
The court noted that article 230-ter of the Civil Code granted the cohabitant-worker a more limited protection than that provided for family members by article 230-bis. (No. 3.9, para. 2.)
It stated that Law No. 76 of 2016 initiated a regulatory and jurisprudential development recognizing de facto cohabitants in the context of the regulation of family business. (No. 2.2, para. 4.) The court observed the historical development in which the term “concubinage” was replaced with the phrase “cohabitation as spouses” or more uxorio, and thereafter in Law No. 76 of 2016 adoption of the term “de facto cohabitants.” (No. 5, para. 6.)
It said that a logical consequence of these legislative and jurisprudential developments is the expansion of the catalog of family members in article 230-bis beyond the legitimate spouse, relatives within the third degree, and in-laws within the second degree, to include de facto cohabitants, and a growing legal protection to them. (No. 2.2, para. 5; No. 3; No. 3.6.)
Decision of the Constitutional Court
The court declared the constitutional illegitimacy of article 230-bis, third paragraph, of the Civil Code, insofar as it did not include the de facto cohabitant as a full family business member, as well as article 230-ter of the Civil Code, which had granted the de facto cohabitant a reduced protection compared to family members of the deceased. (Considerations of Fact No. 1.13, Considerations of Law No. 14, para. 2, and Holding.)
Dante Figueroa, Law Library of Congress
September 16, 2024
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