Cohabitation and registered partnership are not the same!
We want to create a notarial cohabitation agreement to "register" our cohabitation. We'll then be registered partners, right?
No, that's not how it is. There are differences between unmarried cohabitants who record their cohabitation agreements in a notarial cohabitation contract and those who enter into a registered partnership. Many people think these two forms of cohabitation are the same because the cohabitation contract is recorded in a notarial deed. But that's a misconception. There are important differences between a registered partnership and a notarial cohabitation contract. We'll explain them to you.
For unmarried cohabitants
People who live together but are not married or in a registered partnership are called "unmarried cohabitants." The law doesn't specifically address them. This means that there are no legal consequences to unmarried cohabitation, unlike marriage and registered partnerships.
Unmarried cohabitants don't need to make any arrangements per se. They can live together without an agreement. However, because the law doesn't attach any consequences to cohabitation, this also means, for example, that unmarried cohabitants won't inherit from each other if they don't make any arrangements. If they separate, there's no automatic right to (spousal) maintenance. If cohabitants haven't drawn up a notarial cohabitation agreement, there's no legal safety net for them.
Some tax laws do contain provisions that, under certain conditions, equate a cohabiting partner with a spouse for tax purposes. For example, for gift and inheritance tax purposes, a cohabiting partner is, in certain cases, considered equivalent to a spouse for the applicable rate and exemptions. One of the conditions for this equality is that a notarial cohabitation agreement has been drawn up.
Record agreements between cohabitants in a cohabitation contract
Cohabitants may want to establish some details about their cohabitation. For example, in case they end their relationship due to a disagreement. How will they separate? Who owns which assets? Who is allowed to continue living in the home?
Cohabiting partners can then draw up a cohabitation agreement. The law does not specify or define a cohabitation agreement. Furthermore, there are no legal formal requirements for a cohabitation agreement. If the cohabiting partners wish to record their cohabitation agreements in a contract, they can, in principle, do so at their own discretion. However, it is advisable to have a cohabitation agreement drawn up by a civil-law notary. This then becomes a "notarial cohabitation agreement." There are several reasons why this is advisable. A civil-law notary has specific knowledge of the content and drafting of a cohabitation agreement. Furthermore, certain favorable tax regulations (such as inheritance tax) only apply if a notarial cohabitation agreement has been concluded. Pension funds also often require a notarial cohabitation agreement for a partner to be eligible for a partner's pension.
What can you arrange in a cohabitation contract?
Examples of topics that could be addressed in a cohabitation agreement include the following: mutual maintenance and care obligations can be stipulated. How, for example, will grocery and vacation expenses be paid? Each sharing the same share, proportionally based on each other's income, or perhaps in some other way? Cohabitants can also stipulate how their assets should be handled if the cohabitation ends. If the cohabitation ends due to death, cohabitants do not legally inherit from each other. However, they can make arrangements for joint assets in a cohabitation agreement. For example, cohabitants can stipulate in the agreement that one of them receives full ownership of the joint home and can therefore continue to live there if the other dies (this is called a "residence clause"). Furthermore, cohabitants can appoint each other as heirs in a will, thus ensuring that they also inherit each other's private assets. A civil-law notary has expertise in all these topics.
What then is a registered partnership?
A registered partnership is not the same as unmarried cohabitation with a notarial cohabitation contract. A registered partnership is entered into with the registrar and has existed since January 1, 1998. The legal rules for registered partners are virtually identical to those for married couples. Incidentally, no notarial deed is required to enter into a registered partnership!
Registered partnerships were originally intended to give same-sex couples who wanted to marry (but were legally prohibited from doing so at the time) the same rights and obligations as in a marriage. In 2001, marriage was also opened to same-sex couples. Today, almost all the rules that apply to marriage also apply to registered partnerships. During a partnership, just as with marriage, an obligation to provide for each other arises, and upon termination, there is a right to alimony. Furthermore, entering into a registered partnership creates a statutory community of property. If this statutory community of property is not desired, the partners must draw up so-called "partnership terms" before entering into the registered partnership. This must be done by a notary!
Marriage and registered partnership have also been harmonized in inheritance law: if there is no will, the surviving partner legally inherits all assets. If there are children, they are also entitled to their share of the inheritance. There is also no difference between spouses and registered partners in inheritance tax and other taxes.
Conclusion
There are many significant differences between (unmarried) cohabitants with a notarial cohabitation agreement and registered partners! The law provides virtually nothing for cohabitants, and the legal "protection" is much greater for registered partners. This can be resolved for cohabitants by entering into a cohabitation agreement. A notarial cohabitation agreement, combined with wills, can save a great deal of grief (and a lot of taxes!).
Come by or call
If you live together without a cohabitation agreement, it can be very wise to inquire about one, especially if you own a home. Alternatively, you could enter into a marriage or registered partnership; the law then automatically regulates several matters relating to cohabitation. Get sound advice about the differences and consequences of a registered partnership versus a notarial cohabitation agreement, as well as about your specific situation and wishes. The consultation is free of charge. To schedule an appointment for an in-office meeting or a video call, please call +31 (0)10 44 53 777. We look forward to seeing you.
This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.
No, that's not how it is. There are differences between unmarried cohabitants who record their cohabitation agreements in a notarial cohabitation contract and those who enter into a registered partnership. Many people think these two forms of cohabitation are the same because the cohabitation contract is recorded in a notarial deed. But that's a misconception. There are important differences between a registered partnership and a notarial cohabitation contract. We'll explain them to you.
For unmarried cohabitants
People who live together but are not married or in a registered partnership are called "unmarried cohabitants." The law doesn't specifically address them. This means that there are no legal consequences to unmarried cohabitation, unlike marriage and registered partnerships.
Unmarried cohabitants don't need to make any arrangements per se. They can live together without an agreement. However, because the law doesn't attach any consequences to cohabitation, this also means, for example, that unmarried cohabitants won't inherit from each other if they don't make any arrangements. If they separate, there's no automatic right to (spousal) maintenance. If cohabitants haven't drawn up a notarial cohabitation agreement, there's no legal safety net for them.
Some tax laws do contain provisions that, under certain conditions, equate a cohabiting partner with a spouse for tax purposes. For example, for gift and inheritance tax purposes, a cohabiting partner is, in certain cases, considered equivalent to a spouse for the applicable rate and exemptions. One of the conditions for this equality is that a notarial cohabitation agreement has been drawn up.
Record agreements between cohabitants in a cohabitation contract
Cohabitants may want to establish some details about their cohabitation. For example, in case they end their relationship due to a disagreement. How will they separate? Who owns which assets? Who is allowed to continue living in the home?
Cohabiting partners can then draw up a cohabitation agreement. The law does not specify or define a cohabitation agreement. Furthermore, there are no legal formal requirements for a cohabitation agreement. If the cohabiting partners wish to record their cohabitation agreements in a contract, they can, in principle, do so at their own discretion. However, it is advisable to have a cohabitation agreement drawn up by a civil-law notary. This then becomes a "notarial cohabitation agreement." There are several reasons why this is advisable. A civil-law notary has specific knowledge of the content and drafting of a cohabitation agreement. Furthermore, certain favorable tax regulations (such as inheritance tax) only apply if a notarial cohabitation agreement has been concluded. Pension funds also often require a notarial cohabitation agreement for a partner to be eligible for a partner's pension.
What can you arrange in a cohabitation contract?
Examples of topics that could be addressed in a cohabitation agreement include the following: mutual maintenance and care obligations can be stipulated. How, for example, will grocery and vacation expenses be paid? Each sharing the same share, proportionally based on each other's income, or perhaps in some other way? Cohabitants can also stipulate how their assets should be handled if the cohabitation ends. If the cohabitation ends due to death, cohabitants do not legally inherit from each other. However, they can make arrangements for joint assets in a cohabitation agreement. For example, cohabitants can stipulate in the agreement that one of them receives full ownership of the joint home and can therefore continue to live there if the other dies (this is called a "residence clause"). Furthermore, cohabitants can appoint each other as heirs in a will, thus ensuring that they also inherit each other's private assets. A civil-law notary has expertise in all these topics.
What then is a registered partnership?
A registered partnership is not the same as unmarried cohabitation with a notarial cohabitation contract. A registered partnership is entered into with the registrar and has existed since January 1, 1998. The legal rules for registered partners are virtually identical to those for married couples. Incidentally, no notarial deed is required to enter into a registered partnership!
Registered partnerships were originally intended to give same-sex couples who wanted to marry (but were legally prohibited from doing so at the time) the same rights and obligations as in a marriage. In 2001, marriage was also opened to same-sex couples. Today, almost all the rules that apply to marriage also apply to registered partnerships. During a partnership, just as with marriage, an obligation to provide for each other arises, and upon termination, there is a right to alimony. Furthermore, entering into a registered partnership creates a statutory community of property. If this statutory community of property is not desired, the partners must draw up so-called "partnership terms" before entering into the registered partnership. This must be done by a notary!
Marriage and registered partnership have also been harmonized in inheritance law: if there is no will, the surviving partner legally inherits all assets. If there are children, they are also entitled to their share of the inheritance. There is also no difference between spouses and registered partners in inheritance tax and other taxes.
Conclusion
There are many significant differences between (unmarried) cohabitants with a notarial cohabitation agreement and registered partners! The law provides virtually nothing for cohabitants, and the legal "protection" is much greater for registered partners. This can be resolved for cohabitants by entering into a cohabitation agreement. A notarial cohabitation agreement, combined with wills, can save a great deal of grief (and a lot of taxes!).
Come by or call
If you live together without a cohabitation agreement, it can be very wise to inquire about one, especially if you own a home. Alternatively, you could enter into a marriage or registered partnership; the law then automatically regulates several matters relating to cohabitation. Get sound advice about the differences and consequences of a registered partnership versus a notarial cohabitation agreement, as well as about your specific situation and wishes. The consultation is free of charge. To schedule an appointment for an in-office meeting or a video call, please call +31 (0)10 44 53 777. We look forward to seeing you.
This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.
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