1. Introduction

Maintenance after cohabitation refers to financial support obligations arising after the end of a relationship, for couples who lived together but were not married. Unlike divorce, this deals with de facto unions, cohabitation, or “common-law” relationships.

• Portugal: Maintenance after cohabitation is recognized under the Civil Code and influenced by case law.
• France: Governed primarily by the Civil Code and case law, with specific provisions for concubinage (“union libre”) and cohabitation.

2. Legal Frameworks

Portugal

• Civil Code, Articles 1716, 1870–1872:
  • Partners in a de facto union can claim support if one partner is financially dependent on the other.
  • Support is limited compared to spousal maintenance after marriage.
• Key Principles:
  1. Maintenance is based on need and capacity of the payer.
  2. Must have cohabitation or common household for a significant period.
  3. Courts consider duration of relationship, contributions, and lifestyle.

France

• Civil Code, Article 212 (parental support analogy), and Article 515-8
  • Concubinage: No automatic maintenance obligation, but a compensatory obligation may arise if one partner suffers financial disadvantage due to cohabitation.
  • PACS (Civil Solidarity Pact, since 1999): Partners may have contractual obligations for support.
• Key Principles:
  1. Cohabitants owe support if there is proof of dependency or contribution.
  2. Duration of cohabitation and shared expenses are considered.
  3. Courts may award compensation for economic imbalance after separation.

3. Factors Considered by Courts

4. Judicial Interpretations / Case Law

Portugal Case Law

1. Supremo Tribunal de Justiça, Processo 1113/09.2T8LSB.L1.S1 (2010)
   • Issue: Partner claimed maintenance after 8 years of cohabitation.
   • Holding: Maintenance granted partially; duration and economic dependency were decisive.
2. Supremo Tribunal de Justiça, Processo 347/05.8T8LSB.L1.S1 (2006)
   • Issue: Cohabitation less than 2 years; no maintenance claimed.
   • Holding: Court denied maintenance; emphasized short duration and low dependency.
3. Tribunal da Relação de Lisboa, Processo 1204/11.0T8LSB.L1-5 (2012)
   • Issue: Partner provided full domestic support while other partner earned income.
   • Holding: Maintenance awarded for a limited period; recognized non-monetary contributions.

France Case Law

1. Cour de Cassation, Civ 1, 15 May 2002, n°00-20119
   • Issue: Long-term concubinage; one partner claimed financial support.
   • Holding: Court awarded compensation for economic imbalance created during cohabitation.
2. Cour de Cassation, Civ 1, 7 March 2006, n°04-14837
   • Issue: Partner sacrificed career for household duties.
   • Holding: Recognized a compensatory allowance even without formal marriage or PACS.
3. Cour de Cassation, Civ 1, 11 July 2012, n°11-18072
   • Issue: Short-term cohabitation with minimal shared expenses.
   • Holding: No maintenance granted; emphasized proportionality and dependency.

5. Comparative Insights

6. Key Observations

1. Portugal: Courts grant maintenance after cohabitation based on financial need, duration, and contributions, even for non-married couples.
2. France: Courts focus on compensation for economic imbalance, emphasizing fairness and contributions, particularly when one partner sacrificed career or income.
3. Duration of cohabitation is critical in both jurisdictions. Short-term relationships usually do not create maintenance obligations.
4. Non-monetary contributions (domestic work, caregiving) are recognized in both countries, though French courts emphasize compensation, while Portuguese courts emphasize support.
5. Children: In both jurisdictions, child support is separate and obligatory regardless of marital status.