What is cohabitation?

A cohabitation is a relationship between two (opposite or same sex) people living together in the same household and in an emotional and economic community without being married, or without living in a registered partnership or in cohabition with someone else, and who are not siblings and not each other’s ascendants or descendants.

Unlike marriage, there is no formal requirement for a cohabitation to be formed; it is the fact of living together that creates this kind of partnership. Even if the cohabitation is registered in the Register of Cohabitation Declarations, it is not the registration what leads to the establishment of the cohabitation. The register kept by the Hungarian National Chamber of Notaries is only for verification purposes.

The conceptual elements are therefore the following: maintaining a joint household, emotional and economic community. The courts always examine the existence of these elements depending on the unique circumstances, mainly focusing on the intention of the parties. If an element is less prevalent, it does not necessarily mean that the establishment of a cohabitation is excluded.

For the reasons listed above, we can encounter numerous cases where there is a serious and complex evidentiary issue either in determining the starting date of the relationship or in determining the date of the definitive and comprehensive termination of the cohabitation. This is an important issue, because in proceedings regarding the division of property it is necessary to prove whether the partnership actually existed and, if so, from when and for how long. Only in the rarest of cases will we hear consilient statements from the parties following a break-up.

Cohabitation versus marriage

In general, legal effects of cohabitation are more limited than the legal effects of marriage. However, the number of provisions that grant cohabiting partners similar rights to those of married couples is increasing in Hungary (for example, widow's pension, discounts on home purchase, procedural exemptions during criminal proceedings, conflict of interest and rules of exclusion).

The most significant difference in terms of the personal legal effect is that cohabitaton does not cause changes in family status. Furthermore, cohabiting partners do not have the right to bear each other’s name, and the existence of the relationship does not result is a presumption of paternity in respect of children born during the relationship (declaration of paternity can be made in this case). According to hungarian law, a cohabiting partner is not considered a close relative, only a relative, and cohabiting partners cannot adopt a child together as a couple.

It should be pointed out that cohabiting partners do not acquire joint property during their relationship. The the fact that cohabiting partners are not each other’s legal heirs, no matter how many years they have lived together, is also a common source of misunderstanding.

People who live in cohabitation aquire property independently during their relationship, and if their relationship ends either partner can claim from the other the division of the property gains made during their cohabitation. Assets that are considered separate property in the case of a married couple cannot be included in property gains (for example inherited, gifted property, or property that was already owned by one of the partners at the beginning of the relationship, etc.). According to the Hungarian Civil Code, the partner is entitled to a share of the property in proportion to the partner’s contribution to the acquisition. It is important to note that contribution also includes activities relating to the household and the upbringing of children, as well as activities which help the other partner to have the capacity to work.

What happens if the rate of the contribution cannot be determined? In this case, the contribution must be considered equal, unless it would mean an unfair financial disadvantage for either partner.

If the partners have minor children together when their relationship ends, the court will not settle the issues related to the children ex officio, they will be governed by the agreement of the parties or the system established by themselves: this is also a difference compared to married couples. However, this does not mean that either party cannot turn to the court to resolve issues related to the child.

Settlement of disputes regarding property

In order to prevent disputes arising from the distribution of property, it is possible for partners to settle their property relations with a contract for the duration of their cohabitation.

The contract must be included in an authentic instrument or it must be countersigned by a lawyer. In the latter case, we will also receive the necessary information from a legal professional regarding the contract.

The contract is only effective against a third party if it has been registered, or if the third party knew or should have known about its content. The contract cannot contain provisions with retroactive effect that change the obligations of either party towards the third party arising before the conclusion of the contract to the third party's expense.

Law also regulates how the parties can arrange the further use of their shared apartment during the cohabitation by contract in advance, or after the termination of the cohabitation. In the absence of a contract, under certain conditions, the court can entitle the ex-partner to exclusive use of the apartment on the basis of the other partner's exclusive ownership.

A cohabitation is dissolved without any further procedings if either of the parties dies or if the parties marry, enter into a registered partnership or their cohabitation ends. Since the termination of cohabitation is not tied to a procedure such as divorce, it can result in a very messy situation.

Inheritance and cohabitation

We already mentioned above that people who live in cohabitation can only inherit from their partner if the deceased named the surviving partner heir in a will. The parties are often faced with this only after the death of their partner, during succession proceedings. 

Alimony

A frequently asked question is whether you can claim alimony after the termination of the cohabitation. The answer is yes, alimony can be caimed from the ex-partner in many cases, but strict conditions must be met:

• the partner demanding alimony must be unable to support himself/herself for reasons other than his/her own fault,
• the partner demanding alimony cannot be unworthy of alimony,
• the cohabitation lasted for at least a year,
• at least one child was born from the relationship,
• the other partner is capable of paying alimony.

Summary

At first glance, cohabitation is a bond that can be easily established and easily dissolved. On the contrary, this is a very complex area of law, and this form of relationship can result in a lot of disputes and lengthy procedures. Therefore, we cannot regard cohabitation as a simple contractual relationship or as a personal relationship outside the law. We come across important and relevant family law issues of cohabitation every day. With the involvement of a legal professional, these questions can be settled without legal dispute, even in advance.

If you have any questions regarding cohabitation, feel free to contact our office!