The institute of cohabitation is no new phenomenon in the Maltese culture, yet, it is one within the ambit of Maltese law. This lack of legislation has left cohabiting couples with no rights at law, both pending the relationship itself and even after its termination, whether by choice or by death. Consequently, the Government has now proposed a cohabitation Bill aimed at securing cohabitants’ rights at law, whether of the same or of different sex.
The Cohabitation Bill portrays the institute of cohabitation as a distinct institute from marriage and civil union, in fact, the contract of cohabitation becomes null and void once the parties to such an agreement enter into the contract of marriage or civil union. The Cohabitation Bill distinguishes between cohabitation and a de facto cohabitation. The distinguishing feature between the two is the recognition of the relationship by the parties in the eyes of the law. That is, the law respects the decision of those couples who do not wish to regulate their relationship in terms of this Bill, thus having a de facto cohabitation, and defines such a relationship as one which does not create any de jure rights or obligations for the first two years of the relationship and then affords such relationship with limited rights at law.
The Contract of Cohabitation
Couples who decide to regulate their relationship in terms of the Cohabitation Bill will be required to draw up a public deed before a Notary Public and abide by the said Bill. The said notary has the obligation of explaining the effects of the contract and the arising obligations binding upon the parties from the said agreement and this shall be noted down in the agreement itself. The Bill sets forth a non-exhaustive list of issues which ought to be set out in the said public deed, including but not limited to:
1. The tenement which the parties decide to set as their primary ordinary residence and the legal title which appertains to the respective parties. In furtherance to this, the public deed shall include agreements on the transfer of real rights and rights appertaining to the respective parties with respect to the said tenement in the case of a dissolution of the cohabitation.
2. Any maintenance due wherein one party becomes dependent upon the other and in the case of a dissolution of the cohabitation.
3. The division of assets and liabilities is to be made in the case of a dissolution of the cohabitation.
4. The right of children of one of the parties of the relationship to live in the primary, ordinary residence of the parties.
5. The care and custody of the children of the parties of the relationship in the case of a dissolution of the cohabitation.
Amendment of the Contact of Cohabitation
The Cohabitation Bill further provides for a mechanism whereby the said public deed may be amended before a notary public by means of a corrective act. This correction need not be authorized by the competent Court once it solely relates to assets, the address of the primary residence of the cohabitants, assets held in common by the parties or addition of clauses relating to the children born after the registration of the contract of cohabitation. The Court will also have the competence to hear parties viva voce wherein any of the parties wants to ascertain whether such amendments by means of a corrective act is done to the prejudice of either of the parties.
Rights Arising out of the Contract of Cohabitation
The Cohabitation Bill goes on to provide a number of rights which are afforded to the parties who register their cohabitation in accordance with the Bill. These rights are similar to the ones afforded to the institutes of marriage and civil union, such as, modified succession rights. The said rights include, amongst others, that the cohabitant:
1. Is to be regarded as a tenant for all intents and purposes of the law of any lease entered into by means of a contract by one of the cohabitants irrespective of the date of such lease, whether residential or commercial;
2. Is to be regarded as a member of the family in respect of rights relating to the renewal of a lease;
3. Is to be afforded the same rights as a married person or a person in a civil union with respect to rights relating to work including rights relating to leave;
4. Is to be regarded as the closest person to the cohabitant;
5. is to be afforded the right of children’s allowance in terms of Articles 76A, 80-82 of Chapter 318 of the Laws of Malta.
Termination of the Contract of Cohabitation
The contract of cohabitation terminates on the happening of one of the following events prescribed by the Cohabitation Bill being:
1. when one of the cohabitants dies;
2. when the parties agree to terminate the said contract of cohabitation by means of a public deed registered by a public notary and
3. when the cohabitants themselves decide to terminate their cohabitation and one of the cohabitants presents an application in court declaring the date the parties decided to terminate such cohabitation and asks the court to declare that such contract of cohabitation no longer applies together with any succeeding rights and obligations arising from such contract. This will in turn be published at the Public Registry.
Unilateral Declaration of Cohabitation
The Cohabitation Bill also provides for one of the parties to unilaterally declare the cohabitation in order for that party to secure basic rights at law, once the relationship has elapsed its second year. This option is thus afforded to a cohabitant when the other cohabitant is unwilling to register the cohabitation. Such rights include, amongst others, the right to certain movables situated in the primary ordinary residence the cohabitants and the right to reside in the primary ordinary residence of the parties for a reasonable time in the case of a dissolution of the cohabitation, as specified in the Cohabitation Bill.
This is option under the proposed Cohabitation Bill is considered to be one of the most favorable aspects of the proposed legislation wherein the law is aimed at securing the rights of the weaker party of the relationship. Once filed, the other proposed cohabitant will be notified and the unilateral declaration, unless opposed, will become binding, in terms of all succeeding rights and obligations it brings therewith, within two months from the registration.
Clearly, the Cohabitation Bill envisages to regulate all the circumstances from the drawing up of the contract of cohabitation to termination and any emerging rights, unless contracted otherwise by the parties themselves. Thus, although certain provisions are absolute, the Bill provides for an ambit of discretion to the party/ies wishing to register his/her or their cohabitation in terms of the Bill.