First meeting of the course prepared. We are given many cards: each one has the keyword of a topic (work, baby products, couple, body, epidural, umbilical cord, etc.). We have to do a group work: choose from the many notes those with the issues we would like to address during the course.
At the end of our work (in which it appears that we would like to talk about almost everything!), a future mother shares with all of us a topic on which she would like more information, but which is not present among the many post-its: the rights of children of unmarried couples. The topic is not expected in the prepared course but, since we discover that we are not all married, the midwife immediately tells us that she will organize a mini-informative session.
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Back home, I start googling the topic and discover that it is of interest to more couples considering that a new bill on this issue has recently been published. On the Internet, I find everything, so I had a clarifying discussion with Silvia Cagna, particularly sensitive to the topic of family law, to learn more about the legal differences between children born to a married couple and those born to parents not united in marriage.
Here are the questions I asked her and her answers.
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What are the most important news from the new law guaranteeing the rights of children born to unmarried couples?
The legislative decree of December 28, 2013, n. 154 completed the process of amending the provisions on filiation, already initiated under law 219/2012, eliminating any discrimination that remained in our order between children born within marriage and those born outside of it, thus ensuring their total legal equality.
In substance, we have come to affirm the uniqueness of the child’s status and, consequently, to eliminate references in the standards to children as “legitimate,” “natural,” or “adoptive,” now simply defined as “children.”
Beyond the purely terminological aspect, it is in the most concrete context that the importance of the reform appears.
In fact, for several decades now, the natural child has the same rights and duties as a legitimate child, but only towards mom and dad.
In fact, it has always been assumed that other family relationships should take on the marital bond of the parents, in the absence of which the child cannot be legally recognized in any relationship with his siblings, grandparents, and uncles.
The new law has intervened on this very point, finally recognizing the natural child full hereditary and affective rights not only towards the parents but also all other relatives.
More specifically, this has led to the repeal of the so-called right of commutation in favor of legitimate children, which allowed them to satisfy in money or real estate the part due to natural children who did not oppose it: in this way, children born out of wedlock will no longer be liquidated but will fully enter and with the same merit as legitimate children into the inheritance communion.
Another aspect on which the reform has repercussions is the succession between siblings: today, in fact, the natural sibling can contribute to the inheritance of the sibling born of the same parent, but within the marriage, if the latter dies earlier, leaving no children. And vice versa.
Furthermore, the new law offers protection and assurance to the grandparents’ right to maintain important relationships with their grandchildren, allowing the former to appeal to the court in case they are prevented from exercising this right.
If the unmarried couple separates, what rights will the child have?
Since so-called de facto couples are not fully protected by our order, many parents fear that at the end of cohabitation, their children will suffer treatment different from those born within the marriage.
Their fear is, however, unfounded, especially in light of the new law: children born to cohabiting parents – it is repeated – have the same rights as those born to married parents, that is, to be maintained, educated, and morally assisted, in respect of their abilities, natural inclinations, and aspirations.
In the case of separation of the unmarried couple, just like for the married couple, it will be a matter of establishing a balanced child custody arrangement, which, in general and unless exceptions, must be shared, with placement in effect with one of the parents, to whom the home may be assigned (even if the exclusive property of the other parent), and an adequate contribution for the maintenance of the child by the non-custodial parent.
The Reform has also introduced a substantial equation of the procedural treatment of all children: the old law differentiated, in fact, the fate of legitimate children from that of natural children, on the common assumption of the rupture of the parents’ unitary life project, investing the decision on the former by the ordinary court of first instance and the decision on the latter by the juvenile court; now, on the other hand, all disputes relating to the end of a de facto relationship between parents (family placement, visits, attendance, contribution to minor children) fall under the jurisdiction of the Court of common law.
What happens in the event of a parent’s death? How is the inheritance distributed?
Our system does not grant cohabitants the rights of successors to each other: the cohabitant can therefore obtain a share of the inheritance only through an inheritance made by the deceased by will.
In the succession, the existence or not of the marital bond has no bearing on the children.
In the event of the death of a parent who has not made a will, it is the law itself that determines who the persons are to whom the inheritance is attributed. These persons are called “successors”: they are the spouse, descendants (that is, children), ascendants (that is, parents), collaterals (that is, siblings), other relatives of the deceased, and finally the State.
In general, the share in favor of the deceased’s child depends on the number of other children and the presence or absence of the spouse: specifically, in the absence of the spouse, if there is only one child, then the entire inheritance is due to that child; if there are multiple children, the entire inheritance must be shared equally among them.
What are the legal advantages of a child born to married parents?
It can be said today that the child of a married couple has no advantage (legal or otherwise) compared to that of an unmarried couple.
The interests of the child must be protected regardless of the parents’ status: moreover, all children are equal and obligations towards them, as well as their rights, arise so that the fact itself has been created by their own parents.
Would you like more information on this topic? Write as a comment to this post the questions you would like to ask the lawyer!
Thanks to lawyer Silvia Cagna for contributing to this article.
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