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* Dr Ewa Kabza, Department of Civil Law, Faculty of Law and Administration,
Nicolaus Copernicus University in Toruń; ORCID: 0000-0002-8462-1618; e- mail: ekabza@
umk.pl.
Comparative Law Review 27
Comparative Law Review 22 2016 Nicolaus Copernicus University
http://dx.doi.org/10.12775/CLR.2016.006
Katarzyna Krupa-Lipińska
THE PROBLEM OF THE INDETERMINATE DEFENDANT
IN TORT LAW IN EUROPE
Abstract
The article discu sses the problem of the indeterminate defendant in European tort law systems
and in the projects aiming to unify tort law in Europe, such as Draft Common Frame of Reference
and Principles of European Tort Law.
The given issue relat es to a situation where there is a damage caused by one factor, yet upon
available evidence one may indic ate a few potential factors which might have led to the dama ge,
but it cannot be ascertained which fact or was the actu al cause of it. The pr oblem is addressed with
reference to two scenarios. First, when there is a limited and known number of persons acting
tortiously, each of whom potentially might have led to the damage, but only one of them had
actually caused it. Second, when it is certain that one tortfeasor from the und etermined gr oup
of tortfeasors cau sed damage to some of the injured persons from the group of the injured persons,
but it cannot be established precisely which tortfeasor caused dam age to precisely which injured
person.
In comparative law analysis, on e may find various attempts to deal with the given issue, which
come from the balance of ratios given to different solutions, as well as the legal possibilities
or obstacles in national tort law systems. The main possibilities are: all-or-nothing approach, joint
and several liability, and proportional liability. Those solutions are discussed in art icle in more
detail with conclusion that the bold proposition of proportional liability presented in Principl es
of Europ ean Tort Law seems to be the most appropriate.
Keywords
tort law – alternative causation – indet erminate defend ant – joint and several liability –
proportional liability
* Katarzyna Krupa-Lipińska, Juris doctor (PhD), Assistant at the Chair of Civil and
International Trade Law, Faculty of Law and Administration, Nicolaus Copernicus
University in Toruń, Poland; Patent and Trade Mark Attorney. E-mail: kkrupa@umk.pl.
Comparative Law Review 26 2020
Comparative Law Review 22 2016 Nicolaus Copernicus University
http://dx.doi.org/10.12775/CLR.2016.006
Katarzyna Krupa-Lipińska
THE PROBLEM OF THE INDETERMINATE DEFENDANT
IN TORT LAW IN EUROPE
Abstract
The article discu sses the problem of the indeterminate defendant in European tort law systems
and in the projects aiming to unify tort law in Europe, such as Draft Common Frame of Reference
and Principles of European Tort Law.
The given issue relat es to a situation where there is a damage caused by one factor, yet upon
available evidence one may indic ate a few potential factors which might have led to the dama ge,
but it cannot be ascertained which fact or was the actu al cause of it. The pr oblem is addressed with
reference to two scenarios. First, when there is a limited and known number of persons acting
tortiously, each of whom potentially might have led to the damage, but only one of them had
actually caused it. Second, when it is certain that one tortfeasor from the und etermined gr oup
of tortfeasors cau sed damage to some of the injured persons from the group of the injured persons,
but it cannot be established precisely which tortfeasor caused dam age to precisely which injured
person.
In comparative law analysis, on e may find various attempts to deal with the given issue, which
come from the balance of ratios given to different solutions, as well as the legal possibilities
or obstacles in national tort law systems. The main possibilities are: all-or-nothing approach, joint
and several liability, and proportional liability. Those solutions are discussed in art icle in more
detail with conclusion that the bold proposition of proportional liability presented in Principl es
of Europ ean Tort Law seems to be the most appropriate.
Keywords
tort law – alternative causation – indet erminate defend ant – joint and several liability –
proportional liability
* Katarzyna Krupa-Lipińska, Juris doctor (PhD), Assistant at the Chair of Civil and
International Trade Law, Faculty of Law and Administration, Nicolaus Copernicus
University in Toruń, Poland; Patent and Trade Mark Attorney. E-mail: kkrupa@umk.pl.
Nicolaus Copernicus University
Pablo Rodrigo Alen*
INDUCEMENT, ENCOURAGEMENT, OR ASSISTANCE
TO SELF-MUTILATION IN BRAZILIAN CRIMINAL
LAW. THE LIMITS BETWEEN THE BASIC OFFENCE
AND THE RESULT-QUALIFIED OFFENCE FOR
SIGNIFICANT AND SERIOUS BODILY INJURIES
Abstract
The Brazilian Congress recently enacted a profound modication to Article 122 of the
Brazilian Criminal Code, through which it criminalised the conducts of inducement,
encouragement, or assistance to self-mutilation. The justication for this was the need to
prevent behaviour that encourages young people to practise self-mutilation, a phenomenon
manifested worldwide in online social networking groups (so-called “challenges”). In
addition to the basic offence contained in Article 122, two types of result-qualied offences
were introduced, namely a result-qualied offence for signicant and serious bodily
injuries (para. 1) and a result-qualied offence for death (para. 2). However, there are
no clear limits between the basic offence and the result-qualied offence for signicant
and serious bodily injuries. In this sense, in this paper I intend to analyse the problem
of the scope and limits of the newly introduced basic offence and in its result-qualied
offence of para. 1 of Article 122.
* Professor of Criminal Law, Criminal Procedure and International Criminal Law
at the Federal University of Rio Grande do Sul – UFRGS, in Brazil. Director of the Centre
for International and Comparative Criminal Law at UFRGS and Member of the Scientic
Council of the Centre for Studies in Latin American Criminal Law and Criminal Procedure
(CEDPAL) at Göttingen University, Germany. ORCID number: https://orcid.org/0000-
0002-7282-4186, pablo.alen@ufrgs.br
http://dx.doi.org/10.12775/CLR.2020.003
2021 Nicolaus Copernicus University
http://dx.doi.org/10.12775/CLR.2021.010
Ewa Kabza*
THREE DIFFERENT LEGAL ATTITUDES TOWARDS
NON-MARITAL COHABITATION IN EUROPE
Abstract
The rising number of people “just living together”, people who are neither married nor
in registered partnerships, clearly demonstrates that non-marital unions can no longer
be ignored. To obtain an accurate picture of the situation of non-marital partners it was
essential to conduct comparative research of multiple legal orders. This analysis threw
a new light (at least from the Polish standpoint) on possible solutions to the problem of
the regulation of legal aspects of “living together”. It appears that three different legal at-
titudes towards non-marital cohabitation may be distinguished in Europe. Firstly, there
are legal orders in which by virtue of an explicit reference by the legislator – the regula-
tions on marriage are applied to cohabitation (quasi-marriage cohabitation). Secondly,
there also exist countries in which a law was adopted regulating selected aspects of actual
cohabitation (implied model of cohabitation). And thirdly, there are legal orders in which
any cohabitant-oriented legal regime exists.
Keywords
cohabitation – non-marital union – registered partnership – comparative law – family
law
Ewa Kabza256
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
Introduction
As the incidence of extramarital relationships increases, the so-called
“complex system of regulating cohabitation”1 become s more widespr ead.
The “spectrum of juridical forms defining the common life of two peo-
ple, assuming the different degree and intensity of their community”2
is widening. It should be understood as the occurrence of various le-
gally relevant relationships within one legal system. These range from
marriages (homosexual and heterosexual) and registered partnerships,
through “contractual cohabitation” to regulations which link the legal
effects to the very fact of cohabitation in a legally defined manner (pre-
sumptive, default, factual model).3
The aim of this study is to answer the question of how European leg-
islators are responding to the phenomenon of non-marital cohabitation,
which should be understood as an informal, monogamous, intimate re-
lationship of a lasting and stable nature between two persons who live
together and share a household. Mutatis mutandis, it is a union similar in
its “terms and conditions” to marriage in which persons are linked by
a spiritual, intimate, and economic bond (consortium vitae).
Owing to such defined field of research, formal unions – marriage
and registered partnerships – and status-oriented legislation will not
be the subject of further interest. The analysis will also not cover the
contractual models of cohabitation, such as those found in France (in
the form of Pacte civil de solidarité – PACS),4 Belgium (cohabitation légale;
wettelijke samenwoning)5 or Greece.6 In order for the legal effects indicat-
1 J. Pawliczak, “Szkocki model regulacji konkubinatu”, Kwartalnik Prawa Prywatnego,
2010, Issue 3, p. 716.
2 M. Świderska, “Cywilny pakt solidarności w prawie cywilnym Francji”, Państwo
i Prawo, 2001, Issue 1, p. 75.
3 J. Pawliczak, supra note 2, p. 716.
4 Loi relative au pacte civil de solidarité, 15.11.1999, available at: https://www.legi-
france.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000761717 [last accessed 30.6.2021].
5 Loi instaurant la cohabitation légale, 23.11.1998, available at: http://www.ejustice.
just.fgov.be/eli/loi/1998/11/23/1998010076/justel [last accessed 30.6.2021].
6 Νόμος 3719/2008 Μεταρρυθμίσεις για την οικογένεια, το παιδί, την κοινωνία και
άλλες διατάξεις modified by Nόμος 4356/2015 Σύμφωνο συμβίωσης, άσκηση δικαιωμάτων,
ποινικές και άλλες διατάξεις, available at: https://www.kodiko.gr/nomothesia/docu-
ment/140974/nomos-4356-2015 [last accessed 30.6.2021].
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
257
ed in these acts to occur, it is necessary to enter into a specified, named
contract (contractus nominatus). Thus, the legal protection granted by the
law does not derive from the mere fact of cohabitation. An active atti-
tude of the persons concerned is required. Therefore, these unions are
a subtype of registered partnerships,7 formal relationships, not cohabi-
tation understood as a de facto and informal relationship.
It would be wrong to assume that European legislators refer to in-
formal unions in the same way and still treat them as legally indiffer-
ent (repeating after Napoleon: Les concubins se passent de la loi, la loi se
désintéresse d’eux). At least several divisions have been proposed in the
doctrine, reflecting the position taken by legislators on non-marital co-
habitation. A distinction has been made between, for example: (1) the
“opt-in” model, where protection is granted on condition that cohabit-
ants take certain steps – e.g. enter into a cohabitation agreement; (2) the
implicit model with an “opt-out” option; (3) the assimilation model,
where the situation of cohabitants and spouses at the moment of, for
example, the termination of the relationship is analogous; (4) the diver-
sification model, where cohabitants are entitled only to strictly defined
rights shaped independently of those of spouses.8 The registration mod-
el, the implicit model and the contractual model were also proposed.9
In my opinion, it is possible to suggest a division of legal orders into
those in which (1) by virtue of an explicit reference of the legislator –
the regulations on marriage are applied to cohabitation (quasi-marriage
cohabitation); (2) those, in which a law was adopted regulating select-
ed aspects of actual cohabitation (implied model of cohabitation) and
(3) those, in which any cohabitant-oriented legal regime exists. The last
division will set the framework for further considerations.
The legislator’s choice of one of these three models is the result of
balancing three values – the protection of marriage, the protection of
human autonomy and the right to choose, and the need to protect the
7 J. Pawliczak, Zarejestrowany związek partnerski a małżeństwo, Wolters Kluwer, 2014,
p. 92.
8 J. Miles, “Unmarried Cohabitation in a European Perspective”, in J. Scherpe (ed.),
European Family Law. Volume III. Family Law in a European Perspective, Elgar, 2016, p. 93.
9 S. Bulloch, D. Headrick, “Cross-jurisdictional Comparison of Legal Provisions
for Nonmarital Cohabiting Couples”, Research Findings, 2005, Issue 55, p. 2, available at:
https://www2.gov.scot/resource/doc/36496/0029535.pdf.
Ewa Kabza258
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
weaker side of the relationship.10 This search for the “golden mean”
takes place between two extremes: on the one hand, viewing extra-
marital relationships as a moral danger that should be eliminated,
and on the other hand, full equality in law of marriage and informal
union.11 Moreover, the legislator’s preference for either of the indicat-
ed models reflects the way in which cohabitation is classified: either
as an institution of family law or civil law. Classification of cohabita-
tion as a family-law relationship is first of all evidenced by appropri-
ate application of the provisions on marriage to cohabitation. Moreo-
ver, in laws on cohabitation, solutions characteristic of family law may
be used (e.g. qualification of work provided in a household as a way of
contribution to the acquisition of property equal to monetary contribu-
tion). Alternatively, provisions concerning de facto unions are includ-
ed in family law acts (e.g. Scotland, Slovenia). When the relationship
between cohabitants is perceived through the prism of civil law and,
to property settlements, the provisions on civil partnership or unjust
enrichment apply, it may be questionable whether this is a civil law
or family law relationship. However, a solution adopted in Macedonia
may be a certain matter of curiosity. Despite the identical treatment of
cohabitants and spouses with regard to alimony and property acquired
during the relationship (Article 13 of the Macedonian Family Code12),
cohabitants – just like spouses – will not form a family if they are child-
less. According to Article 2 of the Family Code, a family is a communi-
ty of life between parents and children and other relatives who live in
a common household. The family is therefore created as a result of the
birth of a child or adoption.
In the following three sections, the main assumptions of each of the
three models will be explained.
10 J. Miles, supra note 9, p. 94.
11 I.M. Pedersen, “Danish law relating to non-marital relationships”, The Interna-
tional and Comparative Law Quarterly, 1979, Issue 28:1, p. 127.
12 Закон за семејството, 22.12.1992, available at: https://www.mtsp.gov.mk/zakoni.
nspx [last accessed 30.6.2021].
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
259
I.AppropriateApplicationoftheLawonMarriage
toCohabitation(Quasi-MaritalCohabitation)
In some legal orders it is possible to apply mutatis mutandis – usually on
the basis of an explicit statutory reference – the law on marriage to sta-
ble non-marital unions which as a rule last for a predetermined statu-
tory period of time (“quasi-marital” cohabitation). Consequently, cohab-
iting couples are granted the same rights and obligations as spouses.
However, it would be wrong to assume that this is all rights and obli-
gations in every case. Therefore, within this type of cohabitation, ad-
ditional sub-types can be distinguished, taking into account the scope
of application of marriage laws to cohabitation. This begins with the
recognition of cohabitants as spouses (common-law marriage), through
granting them on the basis of explicit statutory empowerment almost
all rights vested in spouses on the grounds of family law and ending
with references only to strictly specified provisions, e.g. in the scope of
alimony, inheritance, or division of property accumulated during the
relationship.
Sometimes, as already mentioned above, the legal effects of cohab-
itation are almost identical to those of a marriage concluded before
a competent official. It may be even argued that cohabitants, after a cer-
tain period of time, “become” spouses (marriage by “seizure”) because
of at least the way of “exit” from such a relationship, which is divorce.
The most far-reaching protection is afforded to unmarried couples in
states which recognise common-law marriage.13 In order to be valid,
13 Common-law marriage states in 2021: Colorado, Iowa, Kansas, Montana, New
Hampshire, South Carolina, Texas. available at: http://worldpopulationreview.com/
states/com mon-law-marriage-states/ [last accessed 30.6.2021].
In England and Wales almost half of the people mistakenly believe that unmarried
couples who live together have a common law marriage and enjoy the same rights as
couples that are legally married. National Centre for Social Research, “Almost half of us
mistakenly believe that common law marriage exists”, 22.01.2019 r., available at: h t t p : //
natcen.ac.uk/news-media/press-releases/2019/january/almost-half-of-us-mistakenly-
believe-that-common-law-marriage-exists/ [last accessed 30.6.2021]. About roots of com-
mon-law marriage writes: W. Müller-Freienfels, “Legal problems concerning unmarried
couples”, in Proceedings of the Eleventh Colloquy on European Law. Messina, 8–10 July 1981.
Legal Problems Concerning Unmarried Couples, Council of Europe, 1982, p. 81.
Ewa Kabza260
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
such a marriage does not need to be formalised. To be a common-law
spouse (as it is the case in some states of the USA) a man and a wom-
an have to live together “as husband and wife”, to appear before third
parties as married persons and to have a real and mutual intention to
get married.14 Thus, the Roman principle of consensus facit nuptias is ap-
plied.15 It should be noted, however, that the institution of common-law
marriage will not be an answer to the problems of persons who con-
sciously opt out of marriage. After all, a fundamental requirement for
the existence of such a marriage is for the parties to present themselves
to third parties as husband and wife.16
In continental European law, perhaps to the greatest extent marriage
regulations are applied to cohabitants in Croatian and Slovenian law.
According to Article 11 of the Croatian Family Code 2015,17 unmar-
ried cohabitation is a community of life between an unmarried man
and an unmarried woman that has lasted for at least three years, or few-
er if the cohabitants have a child together. The legal effects of cohabita-
tion and marriage – both in terms of personal and property relations –
do not differ. Consequently, as soon as the cohabitation is established,
a community of property is created between the cohabitants, which in-
cludes e.g. collected remuneration for work and other income from gain-
ful activity (regardless of whether it was carried out jointly or by each of
them separately), benefits derived from intellectual property rights and
related rights collected during the relationship. The shares of each co-
habitant in joint property are equal, unless otherwise agreed (Article 36
§ 1-3 in conjunction with Article 11 § 2 of the Croatian Family Code). Co-
14 J. Thomas, “Common Law Marriage. Comment”, Journal of the American Academy
of Matrimonial Lawyers, 2009, Issue 22, p. 157–160.
15 See Meister v. Moore (1877): „That such a contract (per verba praesenti) constitutes
a marriage at common law that can be no doubt, in view of the adjudications made in
this country, from its earliest settlement to the present day (…) Marriage is everywhere
regarded as a civil contract”; available at: https://supreme.justia.com/cases/federal/
us/96/76/ [last accessed 30.6.2021].
16 From a histor ical perspect ive, one should also mention the Code on Ma rriage, Fam-
ily and Guardianship (Кодекс законов о браке, семье и опеке РСФСР) adopted in Soviet
Russia in 1926, in the version in force until 1944 which abolished the compulsory registra-
tion of marriages and made the effects of registered and unregistered marriages equal.
17 Obiteljski zakon, 18.09.2005, available at: https://www.zakon.hr/z/88/Obiteljs-
ki-zakon [last accessed 30.6.2021].
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
261
habitants are also obliged to assist each other, to be loyal, to respect each
other and to maintain a harmonious relationship (Art. 31 § 2 in conjunc-
tion with Art. 11 § 2 Croatian Family Code).
In Slovenia, both marriage and cohabitation were regulated until
recently by the 1976 Marriage and Family Relations Act,18 which was in
force until 15 April 2019.19 This has been replaced by the provisions of
the Family Code of 23 March 2017, as well as by the amended Succession
Act 1976.20 However, the adoption of the new legislation has not affected
the position of cohabitants. According to the previously applicable Ar-
ticle 12 of the 1976 Act and the current Article 4 of the 2017 Code and
Article 4a of the Succession Act, a man and a woman who are not mar-
ried, but who form a community lasting for a certain/prolonged period
of time, are subjects of all the legal effects provided by law for marriage,
provided that the marriage between such persons would not be invalid
(ergo – there are no marriage impediments between the cohabitants, for
example).21 Therefore, the distinction between formal and de facto rela-
tionships is blurred on the grounds of family and inheritance law. The
de facto cohabitation “as husband and wife” becomes a way of obtaining
certain status.22
A much narrower scope of reference to matrimonial regulation – be-
cause limited only to the provisions on maintenance and on property
acquired during the relationship – may be found in the family law of
18 Zakon o zakonski zvezi in družinskih razmerjih, 4.06.1976, available at: h t t p s : //
www.uradni-list.si/glasilo-uradni-list-rs/vsebina/2004-01-3093/zakon-o-zakonski-zvezi-
in-druzinskih-razmerjih-uradno-precisceno-besedilo-zzzdr-upb1 [last ac cessed 30.6.2021].
19 On 15.04.2019 new family code (Družinski zakonik) entered into force; Družinski
zakoni k, 23.03.2017, available at: http://www.pisrs.si/Pis.web/pr egledPredpisa?id=ZAKO7556
[last accessed 30.6.2021].
20 Zakon o dedovanju, 26.05.1976, available at: http://pisrs.si/Pis.web/pregledPred-
pisa?id=ZAKO317 [last accessed 30.6.2021].
21 Further: M. Gec-Korošec, P. Kraljic, “The Influence of Validly Established Cohab-
itation on Legal Regulation between Cohabitants on Slovene Law”, International Survey
of Family Law, 2001, p. 383–396; M. Gec-Korošec, V. Rijavec, “Slovenia: Post-Independence
Changes in Family Law Regulation”, University of Louisville Journal of Family Law, 1994–
–1995, Issue 33:2, p. 485–494.
22 M. Bonini-Baraldi, “Variations on the Theme of Status, Contract and Sexuality:
An Italian Perspective on the Circulation Models”, in K. Boele-Woelki (ed.), Perspectives
for the Unification and Harmonisation of Family Law in Europe, Intersentia, 2003, p. 303.
Ewa Kabza262
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
Macedonia,23 the Federation of Bosnia and Herzegovina,24 and Serbia.25
In these legal orders, for example, property acquired by at least one co-
habitant during the relationship (except for, inter alia, items acquired by
inheritance or donation) is a cohabitant joint ownership, cohabitants are
jointly and severally liable for any liabilities incurred by either of them
in matters resulting from meeting the needs of the family, or one of the
cohabitants may request – within a year from the termination of the re-
lationship – that the other one provides him/her with maintenance for
a period of, as a rule, five years.26
It also happens that the legal effects of marriage and cohabitation are
equalised only with regard to the division of joint property or inherit-
ance. With regard to other relevant issues, regulations dedicated only to
cohabitants are passed. This is the case, for example, in Ukrainian law.
Article 74 of the Family Code of Ukraine 200227 regulates the property
relations between cohabitants during their relationship on the same ba-
sis as in the case of spouses. It means that if a woman and man live as
a family, but are not married to each other or to any other person, prop-
erty acquired during their cohabitation belongs to them as joint proper-
ty and is subject to the provisions relating to marital co-ownership, un-
less otherwise provided for by written agreement between them. At the
same time, a cohabitant is entitled to intestate succession, not in the first
group as a spouse (Art. 1261 of the Civil Code of Ukraine)28, but in the
fourth group as a person who lived with the testator as a family for at
least five years counting backwards from the opening of the succession
(Art. 1264 of the Civil Code of Ukraine).
23 Закон за семејството, 22.12.1992, Art. 13, available at: https://Ener.gov.mk/Default.aspx-
?Item=Pub_regulation&Subitem=View_reg_detail&Itemid=31897 [last accessed 30.6.2021].
24 Porodični zakon Federacije Bosne i Hercegovine, 3.03.2005, Art. 230 and 263,
available at: http://www.fbihvlada.gov.ba/bosanski/zakoni/2005/zakoni/25bos.pdf
[last accessed 30.6.2021].
25 Породични закон, 17.02.2005, Art. 152 and 191, available at: https://www.minrzs.
gov.rs/sites/default/files/2018-11/Porod icni%20zakon.pdf [last accessed 30.6.2021].
26 D. Mickovikj, A. Ristov, “The Legal Regulation of Nonmarital Cohabitation in
Macedonian Family Law”, International Survey of Family Law, 2012, p. 190–196.
27 Сімейний кодекс України, 10.01.2002, available at: https://zakon.rada.gov.ua/
rada/show/ru/2947-14/ [last accessed 30.6.2021].
28 Цивільний кодекс України, 16.01.2003, available at: https://zakon.rada.gov.ua/
rada/show/ru/435-15 [last accessed 30.6.2021].
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
263
The fact that legislators opted for analogous application of the pro-
visions on marriage to cohabitation results, as it seems, from the accept-
ance of the functional approach to family and legal relations. The truth
is that in everyday life there are no visible differences between marriage
and non-marital cohabitation and that is why almost equal treatment
may be justified (rule „one fits all” is defensible).29 Marriage and cohab-
itation pursue similar aims. It is, for example, the creation of a family
home and a common, mutually satisfying family economic system, as
well as the agreement of an appropriate division of roles. Furthermore,
both spouses and cohabitants strive for a successful physical relation-
ship, develop a common philosophy of life as a couple, create an intel-
lectual and communicative community and a network of relations with
relatives, friends, neighbours, organisations, and institutions.30 What is
more, in the light of the conducted research, in social opinion it is not
so much the marriage that is perceived as a trigger for legal rights, but
the birth of a child – regardless of whether in a formal or informal rela-
tionship.31
II.AdoptionofLawsDedicatedtoCohabitants
After the year 2000, more and more often “piecemeal” regulations con-
cerning people “just living together” are being replaced by tailor-made
legal acts regulating directly their rights and obligations.32 This legal
29 Zob. np. M. Minow, “Redefining Families: Who’s In and Who’s Out?”, University
of Colorado Law Review, 1991, Issue 62:2, p. 269–285; M.C. Regan, Jr., “Unmarried Part-
ners and the Legacy of Marvin v. Marvin: Calibrated Commitment. The Legal Treatment
of Marriage and Cohabitation”, Notre Dame Law Review, 2001, Issue 76:5, p. 1435–1466;
F.E. Olsen, “The Politics of Family Law”, Law & Inequality: A Journal of Theory and Practice,
1984, Issue 2:1, p. 1–19.
30 K. Slany, Alternatywne formy życia małżeńsko-rodzinnego w ponowoczesnym świecie,
Nomos, 2008, p. 137–138; J. Miles, “Financial Relief between Cohabitants on Separation:
Options for European Jurisdictions”, in K. Boele-Woelki, T. Sverdrup (eds.), European
Challenges in Contemporary Family Law, Intersentia, 2008, p. 280.
31 A. Barlow, “Cohabiting relationships, money and property: The legal backdrop”,
The Journal of Socio-Economics, 2008, Issue 37, p. 517.
32 See also: D. Bradley, “Regulation of Unmarried Cohabitation in West-European
Jurisdictions – Determinants of Legal Policy”, IJLPF 2001, Issue 15:1, p. 23; R. Prob-
Ewa Kabza264
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
model of cohabitation is sometimes called unregistered cohabitation,33
cohabitation protection arising by operation of law,34 para-marriage,
or pseudo-marriage.35 Such a solution was adopted e.g. in Norway,36
Sweden,37 Finland,38 Ireland,39 Scotland,40 Ita ly,41 Malta,42 Lithuania43
and some Spanish autonomous communities – Navarre,44 Catalonia.45
ert, A. Barlow, “Cohabitants and the law: recent European reforms”, Deutsches und
Europaisches Familienrecht 2000, Issue 2, p. 76.
33 R. Wintemute, “Conclusion”, in R. Wintemute, M. Andenas (eds.), Legal Recognition
of Same-Sex Partnerships: A Study of National, European, and International Law, Bloomsbury
Publishing, 2001, p. 764.
34 C. Forder, “European Models of Domestic Partnership Laws: The Field of Choice”,
Canadian Journal of Family Law, 2000, Issue 17, p. 376.
35 K. Waaldijk, “Taking Same-Sex Partnerships Seriously: European Experiences as
British Perspectives?”, International Family Law, 2003, p. 87; K. Waaldijk, “Others may fol-
low: the introduction of marriage, quasi-marriage and semi-marriage for same-sex cou-
ples in European countries”, Judicial Studies Institute Journal, 2005, Issue 5:1, p. 104.
36 Lov om rett til felles bol ig og innbo når hus standsfellessk ap opphører [hu sstands-
fellesskapsloven], 4.7.1991, available at: https://lovdata.no/dokument/NL/lov/1991-07-
04-45 [last accessed 30.6.2021].
37 Sambolag (2003:376), 12.6.2003, available at: https://lagen.nu/2003:376 [last
accessed 30.6.2021].
38 Lag om upplösning av sambors gemensamma hushåll, 14.1.2011, available at:
https://www.finlex.fi/sv/laki/ajantasa/2011/20110026 [last accessed 30.6.2021].
39 Art. 171-207 of Civil Partnership and Certain Rights and Obligations of Cohabi-
tees Act 2010, 19.7.2010, available at: http://www.irishstatutebook.ie/eli/2010/act/24/sec-
tion/17 2/e n acte d/e n/ht m l [last accessed 30.6.2021].
40 Sec. 25-30 of Family Law (Scotland) Act 2006, available at: https://www.legisla-
tion.gov.uk/asp/2006/2/crossheading/cohabitation [last accessed 30.6.2021].
41 Legge n. 76 Regolamentazione delle unioni civili tra persone dello stesso sesso
e disciplina delle convivenze, 20.5.2016, available at: https://www.gazzettaufficiale.it/
eli/id/2016/05/21/16G00082/sg [last accessed 30.6.2021].
42 Act No. XV of 2017, Cohabitation Act, 7.4.2017 available at: http://justiceservices.
gov.mt/DownloadDocument.aspx?app=lp&itemid=28387&l=1 [last accessed 30.6.2021].
43 Art. 3.229-3.235 of Lietuvos Respublikos civilinis kodeksas, 18.7.2000, available
at: https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.107687 [last accessed 30.6.2021].
44 Ley Foral 6/2000, para la igualdad jurídica de las parejas estables, 3.7.2000, avail-
able at: https://www.boe.es/buscar/pdf/2000/BOE-A-2000-16373-consolidado.pdf [last
accessed 30.6.2021].
45 Efectos de la extinción de la pareja estable, Código Civil de Cataluña, 29.7.2011,
available at: https://www.boe.es/buscar/pdf/2010/BOE-A-2010-13312-consolidado.pdf
[last accessed 30.6.2021].
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
265
The legal acts adopted in the abovementioned states are neither
a comprehensive regulation of the legal situation of persons in “un-
married” relationships, nor do they create a new form of formal rela-
tionship. They merely derive certain legal effects from the fact of liv-
ing together as if they were married.46 This “living together” should in
principle either last for a certain period of time (e.g. three years) or be
connected with the fact of having a child together. Thus, legal effects
will arise even in the absence of the knowledge and will of the persons
in a relationship. Of course, cohabitants have the possibility to conclude
an agreement excluding the legal effects of cohabitation laws (“opt-out’).
However, whether due to low legal awareness and lack of knowledge,
or an incorrect assessment of their own legal situation, this is extremely
rare in practice.47
Sometimes the acquisition of certain rights by the cohabitants de-
pends on either the disclosure of the relationship in a private document
(drawing up a cohabitation agreement subject to the general rules of
contract law), or on registration in an appropriate register (e.g. in Mal-
ta – Register of Cohabitations; in the Basque Country – Registro de Pare-
jas de Hecho de la Comunidad Autónoma del País Vasco). However,
such an entry does not have the effect of changing the status of the rela-
tionship from de facto to formal, and sometimes has a purely evidential
value (French certificat de concubinage).
The enactment of cohabitation laws is not only intended to “modern-
ise” family law.48 Above all, when cohabitation breaks down, it serves
to protect the weaker party and eliminates the injustices caused by the
discrepancy between the actual “balance of power” in the relationship
and the legal perception of that relationship.49 It also means that the
46 M. Garrison, “Cohabitant obligations: Contract versus status”, in K. Boele-Woelki,
J. K. Miles, J. M. Scherpe (eds.), The Future of Family Property in Europe, Intersentia, 2011,
p. 119.
47 C. Sӧrgjerd, “Neutrality: The Death or the Revival of the Traditional Family? Reg-
ulating Informal Partnerships in Sweden”, in K. Boele-Woelki (ed.), Common Core and Bet-
ter Law in European Family Law, Intersenta, 2005, p. 345.
48 J. Miles, “Unmarried Cohabitation in a European Perspective”, in J. Scherpe (ed.),
European Family Law. Volume III. Family Law in a European Perspective, Elgar, 2016, p. 108.
49 See e.g.: Law Commission for England and Wales, Cohabitation: The Financial
Consequences of Relationship Breakdown, 2007, Law Com No 307, p. 42–43, available at:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach-
Ewa Kabza266
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
state „sees” cohabitants and „feels” the need to protect the weaker par-
ty, but not in the same way as if they were married or had registered
their partnerships. “It should be confined to the easing of certain legal
difficulties and the remedying of certain situations which are widely
perceived as being harsh and unfair”.50 It is particularly concerned with
the situation of the cohabitant who is involved in the upbringing of the
children and reduces his or her professional activity, or devotes himself
or herself entirely to household work.51 At the same time, owing to the
limited subjective scope of cohabitation laws, they do not weaken the
institution of marriage.52 They also do not constitute a threat or compe-
tition for registered unions – the addressees of the cohabitation acts are
people who are not interested in institutional forms of living.
When looking for – on the one hand – a justification for the adop-
tion of a cohabitation law and – on the other hand – a model personal
scope and subject matter of such a regulation, it is worth referring to
the Swedish draft of the 2003 Cohabitation Act (Regeringens proposi-
tion 2002/03:80), which is accompanied by an extremely extensive ex-
planation (the document is 171 pages long).53 According to the explana-
ment_data/file/228881/7182.pdf [last accessed 30.6.2021]; Ontario Legislative Assembly.
Debates, 9.06.1994, p. 4978, cited by: W. Holland, “Intimate Relationships in the New Mil-
lennium: The Assimilation of Marriage and Cohabitation”, Canadian Journal Family Law,
2000, Issue 17, p. 128.
50 Scottish Law Commission, Report on Family Law, Edinburgh 1992, Scot Law Com
No 135, para 16.1, available at: https://www.scotlawcom.gov.uk/files/5912/8015/2668/
Report%20on%20fam ily%20law%20Report%20135.pdf [last accessed 30.6.2021].
51 W.M. Schrama, “The Dutch Approach to Informal Lifestyles: Family Function
over Family Form?”, IJLPF, 2008, Issue 22, p. 321–322; M. Martín-Casals, “Mixing-Up
Models of Living Together. ”Opting-In”, ”Opting-Out” and Self-Determination of Oppo-
site-Sex Couples in the Catalan and Other Spanish Partnership Acts”, in M. Martín-
Casals, J. Ribot (eds.), The Role of Self-determination in the Modernisation of Family Law in
Europe. Papers presented at the 2003 European Regional Conference of the International Society
of Family Law, Girona: Documenta Universitaria, 2006, p. 300; J.M. Scherpe, “The Legal
Status of Cohabitants – Requirements for Legal Recognition”, in K. Boele-Woelki (ed.),
Common Core and Better Law in European Family Law, Intersentia, 2005, p. 289.
52 J. Pawliczak, supra note 2, p. 698; N. Dethloff, “New models of partnership: the
financial consequences of separation”, ER A Forum, 2011, Issue 12, p. 96.
53 See Spanish explanatory memorandum: Regeringens proposition 2002/03:80,
13.03.2003, available at: https://data.riksdagen.se/fil/E6E9EA72-8C1A-48F5-9ECD-
F0AB9FE0DDC9 [last accessed 30.6.2021]; Å. Saldeen, “Sweden. Cohabitation outside
marriage or partnership”, International Survey of Family Law, 2005, p. 505.
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
267
tory memorandum, when drafting the law on cohabitation, it should
be borne in mind that it will apply to persons who have not in any way
explicitly expressed their wish to be subjected to it (in contrast to the
law on marriage or registered partnerships). Owing to the fact that both
marriage and registered partnerships are institutions superior to cohab-
itation, the “cohabitation” provisions should not lead to the creation of
a “second-class marriage”. The subject matter of regulation should be
limited only to problems of a financial nature and to those cases where
there is a need to protect the weaker party. Where, however, there is
a need for legal regulation, it should be modelled on “matrimonial” law
as far as possible. Therefore, in order to protect the autonomy of the per-
sons in the relationship, on the one hand, and the need to protect the
weaker party, on the other hand, it would be advisable to limit the ma-
terial scope of these regulations to rudimentary matters. This is, in prin-
ciple, what is happening.
Analysing the cohabitation laws operating in Europe, one should
come to the conclusion that they serve primarily to resolve conflicts
arising when the relationship ends, either as a result of an autonomous
decision of the cohabitants or as a result of the death of one of them.54
They essentially address three issues. Firstly, owing to them a cohab-
itant is entitled to reimbursement of expenses and expenditures of
a monetary and non-monetary nature in connection with the acquisi-
tion, maintenance, and improvement of property owned jointly by the
cohabitants or by only one of them. They may also provide a legal ba-
sis for compensating unpaid domestic work and childcare (e.g. so-called
compensatio económica in Navarre or New South Wales). Secondly, they
sometimes impose maintenance obligations on cohabitants (so-called
custodial maintenance and rehabilitative maintenance in New South
Wales). Thirdly, they may contain provisions concerning the family
home which was the former joint residence of the cohabitants (in Swe-
den, the Netherlands).
54 M. Martín-Casals, “Mixing-Up Models of Living Together. ”Opting-In”, ”Opt-
ing-Out” and Self-Determination of Opposite-Sex Couples in the Catalan and Other
Spanish Partnership Acts”, in M. Martín-Casals, J. Ribot (eds.), The Role of Self-determi-
nation in the Modernisation of Family Law in Europe. Papers presented at the 2003 European
Regional Conference of the International Society of Family Law, Girona: Documenta Univer-
sitaria, 2006, p. 292.
Ewa Kabza268
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
Owing to the fact that these constructs are typical of matrimonial
law, the “cohabitation” laws are either a part of family codes (Catalonia,
Scotland, Lithuania), or duplicate the solutions adopted therein (either
expressis verbis in the law as in Portugal, or matrimonial law is applied
accordingly to cohabitants)55. Family law provisions, after all, to the
greatest extent take into account the specificity of life in a relationship.
The introduction of cohabitation laws into the legal order is support-
ed by at least several important arguments. Firstly, in the absence of
a “cohabitation” law, the provisions of the law of obligations or the law
of property are applied to resolve cohabitants’ disputes, taking into ac-
count the economic interest and assuming that each of the parties acts
only in its own interest. Thus, the existence of a spiritual, intimate, and
economic bond between cohabitants is ignored, whereas it is the rela-
tions of an emotional nature that determine the behaviour of cohabit-
ants in the financial aspect, and not the quid pro quo rule.56 Consequent-
ly, the effects of applying the general rules of property law or contract
law are not only difficult to predict, but it also may happen that one
of the cohabitants is unjustifiably left with “nothing”.57 Even if cohabit-
ants decided to regulate their mutual relations by traditional contrac-
tual agreements (contractus nominatus and contractus innominatus), their
scope would be limited exclusively to relations of an economic nature,
leaving aside the “personal aspect of the economic bond”.58
55 N. Dethloff, “New models of partnership: the financial consequences of separa-
t io n”, ERA Forum, 2011, Issue 12, p. 100.
56 W.M. Schrama, “General Lessons for Europe Based on a Comparison of the Legal
Status of Non-Marital Cohabitants in the Netherlands and Germany”, in K. Boele-Woelki
(ed.), Common Core and Better Law in European Family Law, Intersentia, 2005, p. 263; J. Paw-
liczak, Opinia prawna na temat potrzeby oraz dopuszczalności instytucjonalizacji związ-
ków partnerskich osób tej samej płci (w świetle prawa cywilnego oraz konstytucyjnego),
p. 8, available at: http://ptpa.org.pl/site/assets/files/publikacje/opinie/Opinia_Potr-
zeba%20instytucjonalizacji%20zwiazkow%20partnerskich%20osob%20tej%20samej%20
plci.pdf [last accessed 30.6.2021].
57 G. Lind, “Common Law Marriage. A Legal Institution for Cohabitation”, Oxford
University Press, 2008, p. 827, supra 155.
58 B. Paul, “Koncepcje rozliczeń majątkowych między konkubentami”, Przegląd
Sądowy, 2003, Issue 3, p. 41; J. Pawliczak, Opinia prawna na temat potrzeby oraz dopusz-
czalności instytucjonalizacji związków partnerskich osób tej samej płci (w świetle prawa
cywilnego oraz konstytucyjnego), p. 8, available at: http://ptpa.org.pl/site/assets/files/
publikacje/opinie/Opinia_Potrzeba%20instytucjonalizacji%20zwiazkow%20partner-
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
269
Secondly, it is sometimes argued that cohabitants wish to operate in
a legal vacuum (rechtsfreier Raum), so that ascribing legal significance to
the mere fact of living in a stable de facto relationship for a certain period
of time violates their autonomy. This thesis cannot be fully agreed with.
It may be, after all, that cohabitants reject only the “marital” consequenc-
es and not “all” the legal consequences of living together.59 It should also
be borne in mind that entering into marriage is not an autonomous, in-
dividual decision of only one person. Therefore, the reluctance of one
of the cohabitants to get married, his/her taking advantage of his/her
stronger position or the impossibility of getting married (due to the ex-
istence of, for example, marital impediments), affects the rights and ob-
ligations of the other one.60 Moreover, it may be argued that the lack of
institutionalisation of non-marital cohabitation may be a result not so
much of unwillingness to enter into formal unions, but of the unaware-
ness of the legal consequences of being in an informal relationship.61
Thirdly, the enactment of provisions dedicated directly to cohabit-
ants ensures relative legal certainty, prevents inconsistencies in juris-
prudence, and limits the abuse or distortion of legal institutions. The
practice of adopting a cohabitant in France in order to improve his/her
situation under the inheritance law,62 or the so-called death bed mar-
riages (entered into only to comprehensively regulate the legal situation
of one cohabitant in the event of death of the other) may serve as an ex-
ample of such practices.
Fourthly, owing to the lack of – as a rule – reference in cohabitation
laws to the application of the provisions on marital impediments, as
skich%20osob%20tej%20samej%20plci.pdf [last accessed 30.6.2021]; M. Nazar, Rozliczenia
majątkowe konkubentów, Lubelskie Wydawnictwo Prawnicze, 1993, p. 56.
59 J.M. Scherpe, “Organic European Family Law”, in J.M. Scherpe (ed.), European
Family Law. Volume IV. The Present and Future of European Family Law, Elgar 2016, p. 74.
60 C. Forder, “European Models of Domestic Partnership Laws: The Field of Choice”,
Canadian Journal of Family Law, 2000, Issue 17, p. 381. See also S. Lifshitz, “A Liberal Anal-
ysis of Western Cohabitation Law”, in B. Verschraegen (ed.), Family Finances, Jan Sramek
Verlag, 2009, p. 311.
61 M. Antokolskaia, Harmonisation of Family Law in Europe: A Historical Perspective,
Intersentia, 2006, p. 378.
62 K. Pfeifer-Chomiczewska, “Adopcja prosta – kontrowersyjny sposób na stworze-
nie więzi prawnej między konkubentami. Analiza prawa francuskiego”, Miscellanea His-
torico-Iuridica, 2014, Issue XIII:2, p. 320.
Ewa Kabza270
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
well as the “reluctance” to construct such provisions in these acts (Por-
tugal and Extremadura are exceptions), the regulations dedicated to co-
habitants may be beneficial to persons who are not able to marry each
other, but live in stable and permanent de facto unions.
Fifthly, it cannot be agreed that the adoption of cohabitation laws
has a negative impact on the marriage rate.63 Sweden may serve as an
example, as it is possible to make long-term observations on the impact
of cohabitation laws on the marriage rate.
In the 1960s and 1970s, Sweden experienced a significant decline in
the number of marriages per thousand citizens – from 7.8 in 1966 to 4.7
in 1973. In 1973 the first tailor-made legal act for cohabitants was passed
(Lag 1973:651 om ogifta samboendes gemensamma bostad). For three
consecutive years the number of marriages increased and was respec-
tively – 5.5 in 1974, 5.4 in 1975 and 1976. In 1987, another cohabitation act
was enacted (Lag 1987:232 om sambors gemensamma hem) which gave
cohabitants wider rights. However, there was no significant impact on
the number of formal unions. A deviation from the rule was noted only
in 1989, when the number of marriages increased to 12.8 The reason for
the change – mainly – was media reports on the probable loss of pen-
sions by unmarried persons, not the new regulation.64 Already a year
later – in 1990 – the number of marriages fell sharply to 4.7 per thousand
people. “The climax” came in 1998, when only 3.6 marriages per thou-
sand people were recorded. Since then, there has been a consistent in-
crease in interest in formalising the union. Since 2006, more than 5 mar-
riages per thousand people have been recorded regularly. This trend has
not been altered by the subsequent cohabitation law of 2003 (Sambolag).
In 2017, there were 5.2 marriages per thousand people.65 Therefore, it ap-
pears that the legislator per se has virtually no influence over the mar-
riage rate, which – as it seems – depends on certain habits in society. The
63 A. Agell, “Family Forms and Legal Policies. A Comparative View from a Swedish
Observer”, Scandinavian Studies in Law, 1999, Issue 38, p. 205.
64 G. Lind, Common Law Marriage. A Legal Institution for Cohabitation, Oxford Uni-
versity Press, 2008, p. 783; G. Lind, “The Development of Cohabitation and Cohabitation
Law in the Nordic Countries”, in J. Asland, M. Brattström, G. Lind, I. Lund-Andersen,
A. Singer, T. Sverdrup, Nordic Cohabitation Law, Intersentia, 2015, p. 3.
65 OECD, Family Datebase: By country – The Structure of families. Sweden, available at:
https://stats.oecd.org/index.aspx?queryid=68249# [last accessed 30.6.2021].
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
271
real impact on cohabitants’ willingness to formalise relationship may
have been instruments of tax or social law, and not family law.66
III.NoSpecial(Cohabitation)LegalRegime
According to many legislators (e.g. Polish, German, or French), there is
no need to create new legal regulations for persons living in de facto
unions. The justification for this varies. The most common explanation
is that heterosexual persons can always enter into marriage (in France
additionally PACS) and homosexual persons – either marriage (France,
Germany) or registered partnership (PACS in France). Those who do
not choose to institutionalise their relationship may enter into a con-
tract (implicit or explicit) governed by the general rules of contract law.67
Owing to the fact that they cohabit and are connected by close emotion-
al ties, also the provisions referring to e.g. family or close person will
apply (so-called piecemeal recognition of cohabitants’ rights).68 Moreo-
ver, cohabitants may assert their rights using certain institutions of the
property law, provisions on unjustified enrichment, civil partnership,
labour law, tort law, which, however, each time will require proving the
existence of additional prerequisites (e.g. pecuniary contribution to the
acquisition of property, agreement as to the intended purpose of the
performance, common economic purpose).
The arguments of those against creating a legal framework for co-
habitation can be divided into three groups.
Firstly, the outstanding heterogeneity of extra-marital relationships
is pointed out, which results above all in definitional difficulties and
problems in the correct qualification of a specific relationship. This ap-
plies especially to the need to prove the existence of an intimate bond,
which plays an essential role and distinguishes cohabitation from, for
66 A. Agell, “Family Forms and Legal Policies. A Comparative View from a Swedish
Observer”, Scandinavian Studies in Law, 1999, Issue 38, p. 206.
67 C.I. Asua González, “Succession Rights and Unmarried Couples in Spanish Law”,
Oñati Socio-legal Series, 2014, Issue 4:2, p. 193.
68 B. Rodríguez Ruiz, “Recognizing the rights of unmarried cohabitants in Spain:
Why not treat them like married couples?”, International Journal of Constitutional Law,
2004, Issue 2:4, p. 670.
Ewa Kabza272
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
example, friendship. Moreover, a retrospective analysis of the relation-
ship, aimed at assessing its nature and duration (sometimes measured
precisely in years) may in fact lead to unpredictable results, which are
often contrary to the will of the parties concerned and their sense of
justice. Not all relationships are similar to marriage and, especially in
their initial phase, it is difficult to predict their ultimate nature.69 And
the scope of rights to which cohabitants are entitled will depend on the
ex post qualification made by the court based on statutory grounds.70 As
signalled earlier, cohabitation laws will apply to relationships lacking
an element “clarifying” their status. A solution to these problems would
be to link the rights of persons in non-marital unions to the satisfac-
tion of the requirements for registration of the relationship. However,
combining certain cohabitants’ rights with the formal act of registration
would be contrary to the assumption of the protective function of such
laws and would create the impression of the existence of a “second-class
m a r r i a g e”. 71
Secondly, with the spreading phenomenon of marriage equality, of
various forms of registered partnerships and with the liberalisation of
divorce procedures (worth mentioning are e.g. notarial or administra-
tive divorces which exist in Spain, Romania, France, Slovenia, Latvia,
Estonia, Ukraine, Portugal, Denmark, Russia), it is possible to defend
the thesis that cohabitants are persons who are in no way interested in
special protection.72 Therefore, existing legal instruments are fully suf-
ficient. Combining legal consequences with mere marriage-like cohab-
itation would be a violation of individual dignity, autonomy, privacy,
69 I.M. Pedersen, “Danish law relating to non-marital relationships”, T he Inter na-
tional and Comparative Law Quarterly, 1979, Issue 28:1, p. 119.
70 M. Garrison, “Cohabitant obligations: Contract versus status”, in K. Boele-Woelki,
J.K. Miles, J.M. Scherpe (eds.), The Future of Family Property in Europe, Intersentia, 2011,
p. 124.
71 See Spanish explanatory memorandum: Regeringens proposition 2002/03:80,
13.03.2003, available at: https://data.riksdagen.se/fil/E6E9EA72-8C1A-48F5-9ECD-
F0AB9FE0DDC9 [last accessed 30.6.2021]; E. Ryrstedt, “Legal Status of Cohabitants in
Sweden”, in J.M. Scherpe, N. Yassari, Die Rechtsstellung nichtehelicher Lebensgemeinschaften
/ The Legal Status of Cohabitants, Mohr Siebeck, 2005, p. 419–420.
72 See Spanish Supreme Court ruling: STS 611/2005, 12.09.2005, available at: h t t p s : //
supremo.vlex.es/vid/ruptura-union-paramatrimonial-ba-97-18432548 [last accessed
30.6.2021].
Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
273
and the right to self-determination.73 For as John Stuart Mill argued, “If
a person possesses any tolerable amount of common sense and experi-
ence, his own mode of laying out his existence is the best, not because it
is the best in itself, but because it is his own mode”.74
Thirdly, the excessive paternalism of the legislator towards the co-
habitant who devotes himself/herself to raising children and unpaid
domestic work (essentially the woman, as was clearly pointed out dur-
ing the legislative work on the New Zealand regulation75) perpetuates
harmful stereotypes about the position of women in relationships –
their weakness, dependence, irrationality.76
Conclusions
In my opinion, creating regulations dedicated to people living in infor-
mal unions, which would link the legal effects to the very fact of living
in a marriage-like relationship, and not to the fulfilment of certain for-
mal requirements, deserves approval. It is an oversimplification to as-
sume that, since it is possible to get married (and possibly to register
a partnership), there is no justification to introduce cohabitation laws
because the free choice of individuals should be respected. The question
should not be whether the couple has a free choice and decides to live in
a cohabiting relationship, but whether each of the persons forming this
relationship has a choice and being in an informal relationship (with all
73 R.L. Deech, “The Case against Legal Recognition of Cohabitation”, International
and Comparative Law Quarterly, 1980, Issue 29:2&3, p. 480.
74 J.S. Mill, On Liberty, Batoche Books, 2001, p. 63, available at: https://eet.pixel-on-
line.org/files/etranslation/original/Mill,%20On%20Liberty.pdf [last accessed 30.6.2021].
75 S. Birks, LEANZ Seminar on the Property Relationships Act, 6.08.2001: „the focus on
debate on the property provisions of the Property Relationships Bill was essentially on
the situation of women in existing relationships”.
76 M. Garrison, “Cohabitant obligations: Contract versus status”, in K. Boele-Woelki,
J.K. Miles, J.M. Scherpe (eds.), The Future of Family Property in Europe, Intersentia, 2011,
p. 131. More on this topic: R.L. Deech, “The Case against Legal Recognition of Cohabita-
t io n”, International and Comparative Law Quarterly, 1980, Issue 29:2&3, p. 485 –491; K. O’Don-
ovan, “Legal Marriage – Who Needs It?”, Modern Law Review, 1984, Issue 47, p. 117–118;
S. Lifshitz, “A Liberal Analysis of Western Cohabitation Law”, in B. Verschraegen (ed.),
Family Finances, Jan Sramek Verlag, 2009, p. 318.
Ewa Kabza274
20 | Katarzyna Krupa-Lipińska
2.1. ALL-OR-NOTHING APPROACH
The all-or-nothing approach is a result of a strict interpretation of the
conditio sine qua non requirement. Case-law and doctrine in some European
countries support this view. It is, then, crucial to establish a causal relation
between the individually recognised tortfeasor and the damage and hold
him/her liable in full16. Taking into account that the essence of problem
of alternative causation is inherent evidentiary problems in establishing
which tortfeasor actually caused the damage, some jurisdictions in which
the all-or-nothing approach is accepted are using certain ways to overcome
those difficulties for the plaintiff’s benefit. For example, in Belgium the
court may be willing to find upon circumstances of the case that the
damage was actually the result of the activity of one of defendants (his/her
act was the actual cause of damage) and hold him/her liable17. In some
jurisdictions facilitation for the plaintiff’s claim follows from the proper
establishment of the standard of proof or burden of proof. In English18
and Danish law the applicable standard of proof is the preponderance
of evidence, which means that the requirement of causation is met if it is
more probable than not (more than 50%) that the defendant caused
the damage. A similar approach is taken by Italian law, which applies
the “theory of the most probable cause”.
2.2. JOINT AND SEVERAL LIABILITY
In Book VI – 4:103 of Draft Common Frame of Reference the rebuttable
presumption of causing damage in the case of alternative causes is
prescribed. The article reads as follows: “Where legally relevant damage
may have been caused by any one or more of a number of occurrences
for which different persons are accountable and it is established that the
damage was caused by one of these occurrences but not which one, each
person who is accountable for any of the occurrences is rebuttably
16 See: Infantino, Zervogianni, supra note 4.
17 See: Court of Appeal of Brussels, 23.12.1927, RGAR 1928, no. 227.
18 Solution to the problem of alternative causation in England is one of the most
complicated ones. Depending on a case, it may be also proportional liability or joint and
several liability (see below).
68 Marta Nunes Vicente
where a building permit is issued following the landowner’s acceptance
of the (excessive) exactions. Recently, however, in Koontz v. St. Johns
River Water Management District, the City of Monterey precedent was
reversed, as the court held that resorting to Nollan/Dolan principles was
not dependent, rstly, on whether the government approved or denied
a permit, and, secondly, on whether the exactions imposed concerned
a parcel of land or involved rather the payment of money. Underlying
this enlargement is the need to prevent governments from evading the
Nollan/Dolan rationale in situations where, notwithstanding its nancial
character, the exaction bears a special connection with a specic parcel
of real property.67
The decision raises many doubts and thorough concerns.68 For instance,
if monetary exactions are thereafter subject to the rough proportionality
test, how to distinguish them from property taxes, which would be
normally assessed under the rational basis test? If the monetary exaction
works as a per se taking, because of the link established with a specic
parcel of land, why run the Nollan/Dolan inquiries at all? 69
The Koontz decision, coupled with Eastern Enterprises and the reversal
of City of Monterrey, embody an expansionary trend in takings clause
jurisprudence. It operates, rstly, through the adoption of a heightened
standard of review in urban law, which narrows the measures taken as
restraints on the use of property not requiring compensation, and secondly,
by means of including the imposition of monetary responsibilities in the
regulatory takings realm. Although this trend is not ignored in other
legal systems,70 particularly in those not admitting a substantive due
67
Koontz v. St. Johns River Water Management District, 530 U.S. (2013) [“because of the
direct link between the government’s demand and a specic parcel of real property, this
case implicates the central concern in Nolan and Dollan: the risk that the government may
deploy its substantial power and discretion in land-use permitting to pursue governmental
ends that lack an essential nexus and rough proportionality to the effects of the proposed
use of the property at issue”].
68
Echeverria, supra note 65, p. 6; I. Piedra, “Confusing regulatory takings with
regulatory exactions: the Supreme Court gets lost in the swamp of Koontz”, Environmental
Affairs, Vol. 41, 2014, p. 555. See also Justice Kagan’s dissent opinion in Koontz.
69 Echeverria, supra note 65, p. 41.
70 See Part III.
the consequences that this implies) is also their conscious decision. Re-
search carried out in countries with registered partnerships shows that
they are most often formed by well-educated people with a stable finan-
cial situation and not by those who are most in need of protection when
the relationship ends.77
The scope of such a cohabitation law should be the result of a bal-
ancing of two opposing values by the law-making authorities. On the
one hand, a liberal policy that respects the autonomy of those in a re-
lationship and their choice to be “outside the law”. On the other hand,
a paternalistic approach in which the need to protect the weaker per-
sons in the relationship comes to the fore. The only, as it seems, accept-
able compromise consists in providing statutory protection for cohabit-
ants only at a basic level (e.g. following the Swedish example – regulate
the legal consequences of the termination of a relationship). In order to
obtain broader protection, cohabitants would have to take steps to for-
malise their relationship.
77 J.M. Scherpe, “Organic European Family Law”, in J.M. Scherpe (ed.), The Present
and Future of European Family Law, Elgar 2016, p. 71.
