By Marta Pena
The concept of family is one constantly evolving. This is proved by the emergence of new and different forms of families, beyond their traditional understanding, challenging legal systems all over the world. Non-conjugal families, interdependent, committed relationships between two or more persons who do not have a sexual relationship, are only one of the examples deserving of greater attention and analysis, in order to redesign the contours and limits of familylaw.
Despite the lack of recognition of these families, some legal systems are exploring this possibility, by granting them some benefits and rights. These are not comparable to the rights granted through marriage or de facto unions. Even so, the reciprocal benefit schemes in Colorado and Hawaii, the Adult Interdependent Relationship Act in Alberta, and the Legal Cohabitation regime in Belgium are interesting examples of a possible recognition and attenuation of the unequal situation in which the law leaves non-conjugal families.
But what is the panorama in Portugal?
In 2011, Portugal approved the so-called Sharing Economy Law (Lei da Economia Comum, Law no. 6/2006), followed by the De Facto Union Law (Law no. 7/2001). The truth is that, despite being an apparently irrelevant legal tool which remained marginal in Portuguese private law, the Sharing Economy Law protects a set of relationships that fit perfectly into the concept of non-conjugal families.
Therefore, it is important to understand what it means to live in a shared economy. The law itself defines this concept, which has been occasionally clarified by Portuguese case law and scholarship, as the situation of people who live together under the same roof for a certain period of time (more than two years) and have established a common life of mutual help or sharing of resources (it is not required that people pool their income and resources). Additionally, it establishes its applicability to households made up of two or more people, for as long as at least one of them is over 18 years old. The same law, however, makes an exception for cases, in which there is a contractual relationship between the persons, namely subletting and lodging, that imply the same residence or common dwelling, or in which the common economy is related to the pursuit of transitory purposes.
Thus, in accordance with the interpretation of the Portuguese Supreme Court, the Sharing Economy Law presupposes a “communion of life, based on a home in the family and moral sense, living together with a special affectio or bond between persons, a cohabitation which does not impose permanence in the physical sense, but admits eventual absences without the intention of leaving the dwelling, subject to a domestic economy”. Disregarding a romantic or sexual component, it seems easy to conclude the wide range of relationships covered by this regime. From committed friendships and platonic relationships to peer-shared households or multi-generational families – all could benefit from this law’s protection, as long as its requirements are met and proven by the beneficiaries.
The Sharing Economy status grants rights in two different fields: labor law and property law.
For workers in the public sector, the rights to paid holidays, justified absences, licenses, and preference in the placement of civil servants when there is the displacement of one of the cohabitants were extended. And for workers in the private sector, the rights to the legal regime of paid holidays and justified absences were also recognized and the joint enjoyment of holidays was added, by equating these unions to spouses and/or partners of a de facto union, but with adjustments. As regards holidays, if two workers of the same employer live together in a shared economy, they will be able to take holidays in the same period, as long as this joint enjoyment does not bring losses to the employer, as, in fact, occurs with cohabitants of the traditional family working for the same employer. The same treatment occurs in relation to justified absences: for example, in the case of the death of one of them, the other will have the right to be absent from work for the number of days to which the spouse or partner would be entitled. Or, even, assist the partner in case of illness.
From a different perspective, the Portuguese legislator also provided for the conditions of the other members of the “community” in case of the death of the owner of the houses they share – in such a situation the survivors, under equal conditions, will have the protection of the common dwelling for a period of five years, within the same right to purchase the property. In addition, people living in a sharing economy have the right to transfer the residence lease upon the death of the cohabiting contracting party for a minimum period of six months.
Initially, this regime also provided tax benefits similar to those of spouses and partners of a de facto union. However, this provision is no longer in force.
Is this a form of recognition of non-conjugal families?
The Portuguese legislator does not distinguish a family nucleus from a non-family nucleus for the purposes of the application of this regime. Despite the protection measures, Portugal does not recognize either of the two situations as a family entity.
These relationships created based on the will of the parties, rejecting a possible contractual nature of the relationship – the members “cannot validly bind themselves to a legal duty of communion analogous to the one in force in certain family relationships”, since the protection measures are granted regardless of whether there was an intention of the parties at the time the relationship was established or when it reaches two years, as “for the Law, it is indifferentthat the subjects say or fail to say that they live or want to live in communion”.
It is also important to note that the shared economy may be converted into another legal framework and vice-versa. For example, two friends decide to share a house and later develop a sexual/romantic relationship, they will be considered to form a de facto union. The opposite can also occur – a de facto union can be transformed into a shared economy.
Nowadays, for various reasons, people tend to decide not to constitute a family in its traditional sense. The shared economy is just another type of family entity, among the many that already exist. It is a reality more and more expressive in contemporary society and regardless of the reasons that lead to the development of these unions, the State has a duty to protect them, offering conditions so that they can participate actively in society, enjoying the rightsinherent to traditional families, thus reinsuring the principles of freedom and equality.
