For years, the fact has been that individuals have been getting married less frequently and less quickly. For many, marriage is an excuse to throw a fancy party. In itself, it is seen as old-fashioned. Indeed, in this day and age, there is no need to affirm your relationship by getting married. However, many individuals who embark on cohabitation without marriage fail to grasp the ramifications if they were to break up at some point. In such an event, what about children and financial support to be provided, for instance?
In this article, I explain the possible perils of unmarried cohabitation and also inform you about the role of a notary in mitigating these risks.
Unmarried cohabitation
An increasing number of individuals are opting to cohabit without being married. The traditional practice of getting married first and then moving in together has been undergoing a shift for several years. When entering into a marriage or registered partnership, it is possible to make arrangements regarding the course of action in case of separation. Such arrangements are usually included in prenuptial agreements or partnership agreements.
However, if you choose to live together without marriage, you must make these arrangements separately in a cohabitation agreement if you wish to establish such provisions. A notary can assist you in creating this agreement to ensure that no aspect is overlooked in this regard.
Parental rights and child custody
Particularly when children are residing in the household, it is crucial to establish proper arrangements. Did you know, for instance, that parents who are married or in a registered partnership automatically acquire parental authority over their child after birth, and a family relationship is automatically established? However, this is not the case in unmarried cohabitation. In such instances, the mother of the child born out of wedlock automatically assumes custody and becomes the sole legal parent. The other parent must first acknowledge the child to establish a legal relationship and attain legal parenthood. This acknowledgment can be made both before and after the birth. Forming a legal bond with the child means that the parent and child become each other's heirs. Consequently, in the event of either of their deaths, they will have a share in the inheritance.
Aside from legal parenthood, it is also important to attain custody over the child. Custody entails having a say in medical treatments and participating in decisions concerning the choice of school, for instance. In short, it deals with every matter relating to the upbringing of underage children.
As of January 1st 2023, unmarried and unregistered partners are automatically granted joint parental custody with the birth mother. This happens when they acknowledge their parenthood over their child. They no longer have to apply for joint custody with the mother at the court.
Partner alimony
The issued described above are already two matters that need to be separately addressed in the case of unmarried cohabitation. However, even if there are no children involved, cohabitating without marriage can have detrimental consequences if the decision to separate is made. For instance, partners without a marriage or registered partnership are not automatically financially responsible for each other. This implies that there is no obligation for partner alimony at the end of the relationship. This can have significant consequences if there is a difference in income.
It is important to note that this does not apply to child support. If parents decide to separate and legal parenthood over the child is acknowledged, child support is determined in the same manner as it would be in the case of a divorce between spouses.
Death
As unmarried cohabitants, you are not each other's heirs. If you do not make arrangements for this, Dutch inheritance law states that the statutory heirs of the deceased partner (usually the parents and/or siblings) inherit the deceased partner's property. As an unmarried and unregistered partner, you have no claim to anything. Therefore, if you are living unmarried with the person who passes away, you will not only lose your partner as a result of this, but possibly also the roof over your head.
Contact us for expert legal advice.
In conclusion, it is wise to leave matters relating to your cohabitation in safe hands. This does not merely apply to the situation in which you have children. Childless couples also have to think about preparing for the worst, especially if either one of the partners passes away during cohabitation.
Contact us to discuss which measures should be taken by you.
AUTHOR: Joep Ertem LL.M.
Deputy civil law notary at Westport Notarissen
Rotterdam
He can be contacted at:
Tel: +31(0) 6 82 05 77 80
E-mail: j.ertem@westportnotarissen.nl
