The choice made by many people to live in a civil partnership can lead to a large number of issues to be resolved when the partnership ends.
Let's think of two people who, being unmarried, have bought a property to live in and, for this purpose, have taken out a bank loan, which has always been paid off by both of them, even after the unmarried partnership has ended, both of them being co-owners of the property.
These two people, now living separate lives with new and independent life projects, put the property up for sale and agreed in writing that until the property is sold, the wife will live in the property with the children (if any), and that both will continue to pay the instalment corresponding to the bank loan, in the proportion of half of this amount for each one, and that both will also continue to pay half of the amounts due, namely with regard to the condominium.
At the time of the sale, the former de facto partner, who no longer lives in the property, in this case the man, believes that it is fair to ask the woman for compensation for the exclusive use she made of the property in question, use that occurred from the time the de facto partnership ended until the time the property was sold, using the rental value of the property in the area as the guiding criterion for defining the amount of compensation, and the woman would have to pay half of that amount, multiplying it by the months she used the property, under the terms of the agreement she signed with her former partner.
Is this compensation reasonable, accepted by law and therefore due?
In this situation, the de facto union regime and the co-ownership regime intersect, the consorts having agreed, at the time the de facto union ended, to regulate the fate of the family home.
As follows from article 4 of Law no. 7/2001 (the law that regulates de facto unions), the provisions of articles 1105 and 1793 of the Civil Code must be applied, with the appropriate adaptations, in situations where a de facto union is terminated, so the relevant rules as a whole mean that the members of the dissolved de facto union can agree on the use of the family home, which is what these consorts did in the example under analysis, having set the sale of the property as the time limit.
According to Article 1406(1) of the Civil Code, any of the co-owners can use the property, as long as they do not use it for a purpose other than that for which it was intended and do not deprive the other co-owner of the use to which they are also entitled.
However, in the example given, the truth is that both co-owners have entered into an agreement, which is in force between them until the property is sold, under which it is only used by one of them, and it was not foreseen that, at the time of the sale, whoever used the property would have to compensate the other consort for such use.
Thus, the wife's exclusive use of the property does not constitute unlawful action on her part, insofar as both consorts agreed to such use, in the terms in which it occurred, which they did in writing, and therefore, since the agreement does not include a reference to the payment of compensation for exclusive use, as provided for in Article 236 of the Civil Code, any declarant should not be entitled to compensation for the exclusive use of the property. Therefore, since the agreement does not contain a reference to payment of compensation for exclusive use, as provided for in Article 236 of the Civil Code, any normal declarant will understand that the failure to include this provision was the result of the consort's will not to agree to it, and that it makes no sense to subsequently make this exclusive use conditional on compensation, when the truth is that this use was agreed to in a manner that was not conditional on any payment.
There might not even have been an agreement between the two consorts, because one of them can't demand compensation from the other for exclusive use if they haven't taken any position with regard to that use, either by not opposing the use of the property or by not showing any interest or desire in using it.
So, with or without an agreement, in the above examples the consort who used the property cannot be considered to have engaged in abusive behaviour, which is why there is no compensation due from her.
In these two situations (conclusion of an agreement and non-conclusion of an agreement), the truth is that the consort who did not use the property, under the terms mentioned above and for the reasons mentioned above, will be acting with an abuse of rights by demanding compensation.
In order to be able to assert the right to compensation, the consort would have to, for example, prove that they had offered to rent the property to the other, that they had been prevented from using the property by the other consort, that they had previously claimed the right to compensation and, for example, had proposed a change to the agreement they had both entered into, etc.
In conclusion, in both examples, it is clear that the conduct of the consort who used the property exclusively is not unlawful, and the other consort cannot demand compensation from her when the truth is that she was not deprived of its use, as explained above.
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