Just like in the context of a marriage, in the framework of free cohabitation, financial benefits or provisions are often exchanged between partners. In the case of a breakup of the cohabitation, the question arises as to whether and under which provisions it is possible to seek these benefits, particularly considering the corresponding provision in the Civil Code for claims related to participation in the assets after the dissolution of a marriage.
According to Article 1400§1 of the Civil Code, “if the marriage is dissolved and one spouse’s property has increased since the marriage took place, the other spouse, if they contributed in any way to this increase, has the right to claim the portion of the increase that results from their contribution.” The question has arisen whether this provision can be applied analogously in the case of free cohabitation between two individuals, given that there is no corresponding provision for this situation.
Recently, the Supreme Court of Greece (Areios Pagos) ruled in Decision No. 2/2022 that the aforementioned provision does not apply analogously, as the Court believes that the legislator, in enacting this specific provision, “deliberately avoided creating a similar or analogous regulation for free cohabitation, despite knowing of it as a de facto existing situation.” Furthermore, according to the Court, there are fundamental differences between the two situations, which make the analogy inappropriate, particularly with respect to the establishment, functioning, dissolution, rights, obligations, commitments, and the legal consequences that marriage entails—consequences that do not apply in the case of free cohabitation.
However, according to the same decision, it is possible to seek the return of valuable assets that have been transferred based on the relationship of cohabitation, under the provisions regarding unjust enrichment. Specifically, the Court held that, “in the case where, during the cohabitation, one of the individuals’ property was improved (enriched) by the property of the other, and this improvement (enrichment) took place either with the prospect of a future marriage or within the framework of ‘shared life,’ and then the free cohabitation was dissolved, the fundamental reason for the property transfer no longer exists. Therefore, unjust enrichment can be pursued according to the provisions on unjust enrichment.”
In other words, in order for the benefits provided between the parties to be recoverable, it must be proven not just that the cohabitation was extramarital but that the cohabitation created a bond of trust, which included providing benefits or services from one party to the other, either because of the existing relationship itself or in anticipation of a future event, such as marriage.
Therefore, while there may not be specific protection akin to what is provided in the context of marriage regarding the recovery of property contributions after the dissolution of free cohabitation, this does not mean that such contributions cannot be sought under other provisions, precisely due to the bonds of trust and expectations that the cohabiting relationship has created between the parties.
