Understanding the legal implications of entering into a civil partnership (PACS)
A partnership is a domestic arrangement between 2 individuals of the same or opposite sex who live together in the same household, and who have made a formal declaration of civil partnership before the civil registrar in their shared place of domicile or habitual residence.
As a result of this declaration, the partners are subject to certain provisions of civil law, social security law and tax law. The aim is to grant civil partners rights that are, to a large extent, similar to those enjoyed by married couples.
Accordingly, civil partners are entitled to the same social benefits as married persons (e.g. the right to a survivor’s pension) and are afforded the same forms of tax relief as married persons, in particular with respect to stamp duty or registration fees, inheritance taxes and direct taxes.
Who is concerned
To enter into a PACS, neither of the partners may already be married or bound by another civil partnership. Partners must also not fall within the prohibited degrees of relationship, based on consanguinity and affinity. In addition, they must be legal residents of Luxembourg.
The legal provisions on civil partnerships do not apply to domestic arrangements/households of more than 2 persons.
Note: Among the measures introduced by the Law of 3 August 2010, partners in a PACS are entitled to leave for personal reasons due to the existence of a matrimonial relationship.
How to proceed
Rules governing all civil partnerships
Whether or not the PACS involves a specific written agreement, declaring the partnership establishes certain rights and obligations between the partners.
The following rules apply to all civil partnerships and cannot be circumvented by any contrary provisions contained in an agreement entered into by and between the partners:
Obligation to provide mutual material aid and assistance
The law requires civil partners to mutually provide material aid and assistance, in the form of a contribution to meeting the partnership’s expenses. Each of the partners is therefore obliged to make a contribution, but the latter is in proportion to their respective financial capacities. Consequently, one of the partners may be required to pay more if the other partner does not have sufficient resources to make an equal contribution towards the partnership’s expenses.
Settlement of debts
Even after the partnership is dissolved, both civil partners are liable for any debts they or one of them may have incurred during the partnership for the everyday needs of their household and for expenses relating to their shared home (e.g. rent payments).
Nevertheless, an exception is made to this rule for expenditures by one of the partners that are clearly excessive in light of the couple’s standard of living, or the utility or lack of utility of the purchase. Similarly, one partner is not liable for the debts incurred by the other if these debts result from purchases on credit for which the former’s consent was not given (e.g., the purchase of a household appliance through the payment of monthly instalments).
For all other debts, the principle is that each partner remains liable only for those debts which they have personally incurred. In this respect, it is irrelevant whether such debts were incurred before or during the civil partnership.
A partner is never liable for any debts incurred by the other partner after the civil partnership is dissolved.
Protection of the shared home
The shared home of the civil partners is protected, in the sense that one partner cannot sell, mortgage or rent out the shared home or its furniture without the consent of the other partner. If this rule is infringed, the partner who did not give their consent may demand the cancellation of the transaction.
Where the shared home of the civil partners is a rental property for which a lease was signed by only one of the partners, whether before or during the civil partnership, the other partner may invoke the protective provisions of the legislation relating to rental lease agreements to file for a stay of eviction.
In the event of abandonment or desertion by the partner who rented the shared home, or in the event of the latter’s death, the lease continues indefinitely for the benefit of the other partner.
Rules governing civil partnerships in the absence of a property settlement agreement
Unless stipulated otherwise in an property settlement agreement, each of the civil partners retains sole ownership of all property, movable or immovable, that can be proven as belonging to them alone. The same is true for the fruits and revenues provided by this property (e.g., rent payments received for an apartment owned by one of the partners).
Each partner retains the proceeds accumulated from their employment (wages, salaries, fees, profits from a commercial activity, etc.).
Any movable or immovable property for which neither partner can prove sole ownership is considered to be co-owned, meaning that each partner owns an equal share in the property. Consequently, any movable and immovable property acquired by one of the partners during the civil partnership (via purchase or inheritance) belongs to that partner alone.
Civil partners may make gifts to each other or afford each other specific advantages, whether by donation or legacy.
In the absence of a valid will (subject to ordinary rules), the surviving partner is not considered as a legal heir of the deceased partner.
Establishment of a property settlement agreement
Civil partners may formally establish the terms of the property relations within their partnership by way of a written agreement. Entering into such an agreement is not required, but is entirely possible. The partners may choose to enter into this agreement when declaring their civil partnership or afterwards, and it may be amended at any time following the declaration.
Form of the agreement
Property settlement agreements are not subject to any specific requirements in terms of their form. Accordingly, the partners do not need to enlist the services of a notary and may draw up the agreement on plain paper. They only have to ensure that it is dated and signed. However, it is recommended that the agreement be prepared and signed in 2 original copies, so that each partner possesses their own original copy.
The agreement may be amended at any time, without requiring any other formalities (by making changes to the existing agreement or by drawing up a new agreement to replace the existing one).
The agreement, as well as any subsequent amended version, enters into effect from the receipt of the declaration by the civil registrar, who establishes its authenticated date.
The agreement itself is not kept on file by the civil registrar, but is returned to the partners after verification (it is their responsibility to make sure that the agreement is safely stored).
Next, the civil registrar forwards the declaration relating to the existence of an agreement to the public prosecutor’s office so that it may be added to the civil register. The agreement is only binding on third parties from the date when this declaration is added to the civil register.
Content of the agreement
Civil partners are free to set the terms of the property relations within their partnership as they wish, provided they do not contravene the mandatory rules that apply to all civil partnerships.
If the property relations to be regulated are particularly complex, the property settlement agreement may include an inventory statement specifying which items of movable and immovable property are owned individually by each of the partners, and which are owned jointly.
Dissolving a civil partnership
When the civil partnership is dissolved, the requirement for mutual material aid and assistance ceases to apply, unless the partners have agreed otherwise or a court decides otherwise.
In exceptional circumstances, maintenance may be granted by court order to one of the partners in proportion to the needs of the partner claiming this benefit and the fortune of the partner paying this benefit. Maintenance payments may be revised at any time in the event of a change in circumstances.
Maintenance payments will cease if the recipient enters into a new civil partnership or marriage.