Introduction: a legal framework for new family realities
In contemporary society, the constitutional principle of the free development of personality, enshrined in Article 10.1 of the Spanish Constitution, protects the diversity of joint life projects. Alongside the institution of marriage, the figure of the stable couple has emerged in Catalonia as a highly relevant alternative, being the Autonomous Community with the highest incidence of this type of cohabitation, to the point of concentrating approximately 80% of registered unions in Spain.
From a notarial perspective, we observe daily the importance of citizens having clear and accurate information to make informed decisions. These lines aim to clarify the fundamental aspects of the constitution of stable couples through a public deed and reflect on the pressing need for a reform of the current regulation.
Stable couples in Catalonia: the three ways of constituting the union
Article 234-1 of Book II of the Catalan Civil Code, relating to the person and the family, establishes that two people who live together in a life community analogous to marriage are considered a stable couple if they meet one of the following requirements:
- An uninterrupted cohabitation of more than two years.
- The existence of a child in common during the cohabitation.
- The formalisation of the relationship in a public deed granted before a Notary.
It is crucial to emphasise that these three ways are alternative, not cumulative. At this point lies the essential nature of notarial intervention: the public deed does not operate as a mere confirmation of a pre-existing factual situation, but currently, according to Catalan law, has an eminently constitutive character, giving legal existence to the couple from the moment it is granted.
The shadow of unconstitutionality: following Navarra’s steps
Currently, the first two routes (cohabitation and having children in common) are under the scrutiny of the Constitutional Court. The Provincial Court of Barcelona has raised a question of unconstitutionality that could invalidate the articles regulating them.
What is the reason? The current Catalan regulation establishes a civil, family and succession regime for the members of the couple that is almost completely equivalent to marriage, without necessarily having given their express consent. A legal status of enormous consequences is imposed merely by living together or having a child, which could violate the principle of autonomy of will and the free development of personality.
This scenario is not new. In the Chartered Community of Navarra, the Constitutional Court already annulled a similar regulation, arguing that a legal status equivalent to marriage cannot be attributed without a clear and express manifestation of the parties' will. If the Constitutional Court follows the same criterion, only couples who have formalised their relationship through a public deed will be able to continue enjoying the patrimonial, succession and family rights granted by law, making the public deed the only means of confirming the existence of the couple.
The public deed and the role of the Notary
When two people voluntarily attend a Notary’s office to formalise their union as a couple, they are exercising their autonomy and freedom to define their relationship. The public deed is the instrument that materialises their decision immediately and with full legal effects from the moment it is granted.
The notarial function, governed by the principle of rogation, obliges us to provide the public service when we are required to do so. Our task consists of guaranteeing the legality and security of the act, which implies:
- Identifying the parties.
- Assessing their legal capacity.
- Ensuring that their consent is freely given.
- Adapting their will to current legality, informing them of the effects of the act or transaction executed.
It is necessary to clarify a frequently misunderstood point: the law does not impose the requirement of prior cohabitation for granting the deed of constitution of a stable couple. The law does not require evidence of a “courtship” or a trial period. If two adults decide to start a joint life project, they may formalise it from the very first day.
Thus, the refusal of notarial intervention is an exceptional measure that must be solidly justified by a legal cause. In the context of stable couples, this cause could be the detection of fraudulent intent (for example, if the couple is being formed for the sole purpose of obtaining an administrative benefit without a real intention to live together) or the breach of mandatory legal rules. However, Notaries generally do not have many means of control, except in cases where very evident indications arise, which highlights a significant weakness in the Catalan legal system.
The phenomenon of convenience couples
The lack of a homogeneous national regulation and the peculiarities of Catalan law have created a legal framework that generates great insecurity and has also given rise to the phenomenon of “convenience couples”: individuals who rely on Catalonia’s lenient regulations solely to obtain administrative benefits (such as residence permits), without a genuine joint life project.
The instrumentalisation of the stable couple does not only constitute a fraud of law in itself but can also result in serious consequences for all participants in the simulation. Those who participate in organisations that artificially create links between Spanish citizens (or EU nationals) and non-EU foreigners, solely for the foreigner to obtain a residence permit, may incur the crime of facilitating illegal immigration as defined in Article 318 bis of the Criminal Code. Furthermore, for the foreign national, a conviction for this type of offence may lead to expulsion from Spanish territory in accordance with the Immigration Law.
For this reason, legislative improvements are urgently needed to balance the protection of cohabitants with legal certainty and fraud prevention. One solution, already adopted by other regional regulations, would be to require a minimum accredited period of cohabitation or the provision of witness statements as additional evidence to prove the notoriety of the couple – that is, that the relationship exists externally and publicly – thus guaranteeing the existence of genuine affectio maritalis.
Conclusion: the public deed and the need for clearer and safer regulation
Given the legal uncertainty created by the possible declaration of unconstitutionality of part of the Catalan regulation, the formalisation of the stable couple through a public deed before a Notary becomes the only mechanism that offers full guarantees and constitutive effects.
However, this solution should not overshadow the need for comprehensive legislative reform, preferably at a national level, that harmonises the regulation of an increasingly common social reality. It is imperative to design a legal framework that protects autonomy of will, provides legal certainty to third parties and effectively prevents fraudulent use of the institution.
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Essential aspects of stable couples in Catalonia
The Stable couples in Catalonia They have become a key legal figure within Catalan Civil Law. Their specific regulation and the social importance of this form of cohabitation make it necessary to clearly understand how they are constituted, what effects they produce, and what notarial and legal implications they entail.
Current legal requirements and legal effects
Within the current regulatory framework, the Stable couples in Catalonia they can be formalised through various channels, although a public deed before a Notary is consolidated as the mechanism with the greatest legal certainty. Catalan legislation grants these unions patrimonial, succession, and family effects which, in some cases, are equivalent to those of marriage, a fact that has spurred intense debate regarding the constitutionality of some precepts.
The importance of public writing in shaping a couple
In the current legal environment, formalisation by public deed is the option that best guarantees the express wishes of cohabiting couples. Therefore, when discussing Stable couples in Catalonia, the notarial intervention acquires an essential role, as it verifies identity, capacity and consent, and ensures that the agreement is appropriate to current legislation.
Current challenges in the regulation of stable partnerships in Catalonia
The possible declaration of unconstitutionality of some articles of the Civil Code of Catalonia generates uncertainty and places the Stable couples in Catalonia at a key moment of legal redefinition. Cohabitation without formal consent or having a child as automatic criteria for applying a quasi-matrimonial regime has been particularly questioned.
The need for greater legal certainty and fraud prevention
One of the most sensitive issues is preventing the misuse of the figure, particularly in cases of marriages of convenience, which have arisen to take advantage of Catalan regulations in immigration processes. This phenomenon reinforces the need for clearer criteria, verification mechanisms and a uniform framework for all Stable couples in Catalonia.
Towards homogeneous regulation that respects the autonomy of the will
The most coherent solution involves strengthening the role of public writing and harmonising regulation, ensuring that Stable couples in Catalonia They shall always respond to a clear, free, and expressly manifested will.
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