Difference between marriage and de facto cohabitation: what are the relevant aspects for residence permit applications?

In Italy, more and more couples choose to live together without getting married. However, from the perspective of immigration law, there are important differences between marriage and de facto cohabitation when one of the partners is a non-EU citizen.

Marriage and residence permit

Marriage is formally recognized under Italian law and allows the foreign spouse to apply for a residence permit for family reasons.

In general, marriage represents the simplest solution from an administrative point of view, because the marital bond is easily proven through the marriage certificate and therefore allows for a residence permit to be requested without difficulty as a family member of an Italian or EU citizen pursuant to Legislative Decree 30/2007, or a residence permit under Article 30 of Legislative Decree 286/98 as a family member of a legally residing non-EU citizen.

However, the authorities may carry out checks to verify that the marriage is genuine and not entered into solely for the purpose of obtaining a residence permit.

What is de facto cohabitation?

De facto cohabitation is regulated by the Cirinnà Law of 2016 and concerns couples who live together on a stable basis without being married.

In order to have legal relevance, the cohabitation should be registered at the municipality (Comune) of residence.

Does cohabitation allow you to obtain a residence permit?

Yes. A cohabiting partner may also be granted protection for residence purposes, especially if the relationship is stable and documented.

However, compared to marriage, cohabitation often requires more evidence, such as:

• joint residence certificate;

• family status certificate;

• cohabitation agreement;

• documents proving a shared life.

In the absence of registration in the municipal records, recognition of the relationship may become more difficult.

The main and most problematic issue is that registering a de facto cohabitation agreement at the municipality requires both partners to be legally resident in Italy. Therefore, if the non-EU partner does not already hold a valid residence permit, they will not be able to register the cohabitation agreement at the municipality and therefore will not be able to apply for a residence permit as a family member of an Italian or EU citizen.

This is the administrative practice, although there is case law which has recognized the obligation of Italian municipalities to register de facto cohabitation agreements even in the absence of registration of the non-EU partner in the population registry.

Conclusions

Both marriage and de facto cohabitation may be relevant for obtaining a residence permit in Italy as family members of Italian or EU citizens, or as family members of non-EU citizens legally residing in Italy under a valid title (e.g. work, study, or investment residence permits).

Marriage remains the most immediately recognized form by the authorities, while cohabitation may require more detailed documentation to prove the stability of the relationship.

To avoid problems or delays, it is important to properly prepare all necessary documentation and carefully verify one’s specific situation.

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The content of this article is intended to provide general information on the topic. For doubts or specific cases, it is advisable to seek specialized legal advice tailored to your particular situation.

Article written by Alessia Ajelli, Managing Associate of LCA Studio Legale, Italian lawyer specialized on Italian immigration and citizenship law, and Paolo Grassi, Trainee of LCA Studio Legale.