What is the relationship of de facto cohabitants to third parties?

What is the relationship of de facto cohabitants to third parties?

How do the actual cohabiting partners relate to third parties? We can distinguish two different situations.

The burden of the household

In principle, the creditors of one of the partners cannot focus on the other partner. The passive joint and several liability that applies to married couples and legal cohabitants cannot be applied by analogy to de facto cohabitants. One's own debt thus remains one's own.

Nevertheless, in some circumstances the creditor can invoke the trust doctrine. According to this doctrine, a fact that appears only to be present, in favor of third parties in good faith, can have the same legal consequences as would have arisen if the fact had been real. Thus, if the de facto cohabitants have pretended to be a married couple, or a legally cohabiting couple, the third-party creditor can rely on this pretense.

In this way, each partner can be held accountable for the entire debt that he has contracted for the purpose of the household or the education of the children. The rules of marriage or legal cohabitation are then actually applied.

The rent of the family home

When renting a family home, we have to distinguish between two scenarios:

• Rent of the family home by one of the partners who actually live together.
• Rent of the family home by both partners who actually live together (=contractual co-rent).

Rent of the family home by one of the actual cohabiting partners

The partner who moves in with the partner who rents the house is not considered a co-tenant. There is talk of an occupation in prayer here. The tenant grants, as it were, a right of residence to the other partner. The tenant can terminate this occupation at any time without justification. However, due to good faith, a reasonable notice period will be owed to the other partner.

The situation will be the same in case one starts living with someone who owns the property.

In the event of the death of the partner renting the property, the surviving partner will not be entitled to continue the rental. Continuation is only possible with the permission of the landlord.

Rent of the family home by both partners who actually live together (=contractual co-rent).

We are in the situation where the partners conclude the lease together. There is a contractual co-rent by both partners. Each partner therefore has a separate personal right to the enjoyment and occupation of the entire property, together with his co-tenant. Neither partner has the right to drive the other partner out of the estate.

However, an agreement can be concluded in this regard that regulates the preferential allocation of the tenancy law. Such agreements are not enforceable against the lessor if he has not consented to that agreement.

If no agreement is concluded, it is sometimes possible to invoke the tacit agreement that the partners enter into at the beginning, namely that they must guarantee each other a peaceful enjoyment of the property. For example, in the case of acts of violence by the other partner, one disrupts the quiet enjoyment and one could thus request the exorcism. However, the fact that such a disagreement between the partners does not affect the rental agreement between the other partner and the landlord does play a role here.