Consultation: de facto cohabitee is a family member and is a family business the one with which he/she collaborates

The Constitutional Court accepted the questions, noting that, in a profoundly changed society, there has been a convergent evolution of both national legislation and constitutional, common and European jurisprudence, which has recognised the full dignity of the family composed of de facto cohabitants. Differences in discipline with respect to the family based on marriage remain; but when it comes to fundamental rights, these must be recognised for all without distinction. Such is the right to work and to just pay; a right that, in the context of a family business, requires equal protection, as the de facto cohabitee, like the spouse, must also be protected, otherwise risking being inexorably drawn into the orbit of free labour.

The Court - in emphasising that the protection of employment is an instrument for the realisation of the dignity of each person, both as an individual and as a member of the community, starting with the family community - therefore deemed unreasonable the non-inclusion of the de facto cohabitee in the family business. The extension of the protection afforded by Article 230-bis of the Civil Code to the de facto cohabitee was the consequence of the constitutional illegitimacy of Article 230-ter of the Civil Code, which - in granting the de facto cohabitee reduced protection, not including the recognition of work in the family, the right to maintenance, and the right to participate in the management of the family business - entails an unjustified and discriminatory lowering of protection.

In fact, the Consulta recalled the discipline of family business, which, unlike that of conjugal business - which concerns in particular the legal patrimonial property regime of community of property between spouses - aims to protect 'family' work, as an 'intermediate case between actual subordinate work and gratuitous work, rendered "affectionis vel benevolentiae causa". The difficulty,' the judges write, 'for the service provider to prove subordination in such a context ended up mainly by drawing the service into the case of gratuitous work, lacking effective protection'.

The need to provide a special employment guarantee was implemented by 230-bis of the Civil Code, 'in accordance with the choice made by the legislator in the 1975 family law reform, with a wide scope of application because it embraces not only the spouse and close relatives of the entrepreneur, but also all relatives up to the third degree and relatives-in-law up to the second degree according to the list contained in the third paragraph of the provision; a list to which it must be considered that persons bound by civil unions were added in 2016'.

The Constitutional Court has therefore emphasised that even the more uxorio cohabitee finds himself in the same situation in which 'the affectio maritalis blurs the subjection to the managerial power of the entrepreneur, typical of subordinate employment, and the work performance risks being inexorably drawn into the orbit of gratuitous labour'. Thus, the effectiveness of the protection of the cohabitee's work, which, in fact, is no different from that of family work performed by those who are linked to the entrepreneur by a relationship of marriage, kinship or affinity, is thus diminished.

Subsequently, the legislature remedied the problem, but did so only partially and in unjustifiably discriminatory terms to this shortcoming when, in establishing civil unions, it introduced a case of 'reduced' participation in the family business by the de facto cohabitee.