Case 2009-181f

The lower court referred to the Constitutional Court a question as to the constitutionality of article 1017, paragraph 4, of the Judicial Code (the “challenged article), which allowed for a judge to offset court costs between spouses, parents, siblings or relatives to the same degree, but not between parties between whom existed a family relationship (such as unmarried cohabitants or former unmarried cohabitants).

The parties in question were the parents of two children who had lived together as an unmarried couple for five years. The dispute that arose between the parties was related to child support. The defendant had applied for a forced execution of the applicant’s payment obligations, which the applicant opposed.

The lower court asked the Constitutional Court to consider whether the aforementioned law violated the constitutional principle of equality and non-discrimination since a judge can offset the costs of procedure between spouses, parents or siblings but not for other type family relationships.

The Court noted that the reason behind the challenged provision was to preserve to the extent possible the relationship between family members after a dispute arose between them. With that rationale in mind, the Court concluded that, with respect to the situation of former unmarried cohabitants, the challenged article did not violate the relevant constitutional provisions and the principle of non-discrimination and equality because the law did not allow the offsetting of costs between former spouses either; where the relationship had already ended there was no benefit in attempting to preserve it.

With respect to currently cohabitating persons (whether legally declared as such or simply de facto cohabitants), the Court held that the differentiation of treatment based on whether the  disputants were married or simply cohabitants was not justified. The Court thus concluded that the challenged provision did breach the relevant constitutional provisions and the principle of non-discrimination and equality with respect to currently unmarried cohabitants.

"In particular, the goal to promote conciliation between the parties and to eliminate any ground of animosity may justify that, in litigation opposing parties between whom exists or existed a family relationship, the judge has the possibility to offset the costs. Indeed, those parties remain bound by rights and obligations of a family nature. The offsetting of costs may reflect the fact that neither party has acted unreasonably in the trial and did not inappropriately called upon the judge to put an end to the dispute, so that neither party shall be in the obligation to cope with a major order for costs." Section II

"Regarding the provision in question, the situation of former unmarried cohabitants, whether legal or actual cohabitants, does not differ from the situation of former spouses. Indeed, even in the case of former spouses, the judge could not apply the provision in question.

In the case of former unmarried cohabitants as well as in the case of former spouses, a disturbed relationship cannot, in principle, be avoided, so that in either case, the purpose of the measure mentioned in B.4 cannot yet be attained." Section III.B.5

"The legal situations of a married cohabitant, of a cohabitant who made a declaration of legal cohabitation and of a cohabitant who is neither married or legally declared are different, both regarding her/his obligations towards her/his cohabitant and the patrimonial situation.

These differences may, when they are relevant to the purpose of the provision, justify a difference in treatment between these three categories of cohabitants.

B.8. Although the purpose described in B.4 cannot reasonably justify the difference in treatment in question between those categories of cohabitants.

Indeed, the desire to avoid a disturbed relationship between cohabitants as a result of a dispute shall apply regardless of the form the cohabitation category." Section III.B.7-8.