Protection to cohabiting couples

The launch of the draft Cohabitation Bill, along with a public consultation on the matter, is another step in our country’s progress towards a fully pluralist and open society.

The Bill is the product of consultation with several experts in the field including those from various government departments. It aims to legally protect a number of families and their children living outside a legal framework.

Indeed, as things stand today, Maltese couples who choose to cohabit, rather than marry or enter into a civil union, are not recognised by law. This means that a significant number of families in society have no legal cover whatsoever when it comes to the rights and duties towards each other as well as the rights of any children they might have.

Freedom of choice and independence are at the heart of this Bill

Through this Bill, the government has taken it upon itself to rectify past failures and is presenting to Parliament and the public a proposal that not only does not discriminate between heterosexual and same-sex couples but also regularises areas where laws are lacking.

Indeed, freedom of choice and independence are at the heart of this Bill. While we are laying down the rules for those wishing to have their position formally recognised, we do acknowledge the fact that other couples will not want the State to be privy to their affairs and the way they decide to regulate the relationship between them. This is something we respect and have provided for in the Bill itself.

In fact, the Bill acknowledges those relationships where two de facto cohabiting persons do not wish to have any legal obligations towards each other. While respecting their choice, the Bill still grants them access to basic rights, such as being considered as next of kin.

The second type of cohabitation envisioned by the Bill is of the registered kind, where the parties enter into a contract registered by a notary. This will not only set legal obligations and rights for the two contracting partners but also instate rights guaranteed by the State, similar to the way civil unions and marriages do, albeit through a separate and more limited institution.

The novelty brought by registered cohabitation is the flexibility that exists in the drafting of the cohabitation contract. The mandatory requirements laid out include declaration of the ordinary residence where the couples choose to cohabit, which, if any, common assets and debts are to be divided between them and matters relating to maintenance and care and custody of any children involved. The rest is left completely in the hands of the partners to shape the contract according to their wishes.

Registered cohabitation contracts will grant rights to common property, have partners recognised as each other’s next of kin in medical situations, access to benefits in the cases of redundancy, and to children’s allowance and benefits in the case of death of the other partner.

The protection of individuals in a vulnerable situation is addressed in the third form of cohabitation, superior to de facto cohabitation. It caters for a unilateral declaration of cohabitation by means of a judicial letter, that is, a declaration by only one of the two partners cohabiting. This does not mean that such a declaration will be immediately accepted at the Registry, thus automatically binding the other person. The Bill specifies that this declaration can only come into force if it is not rejected by the receiving party within a two-month period. If it is successfully rejected according to the procedure indicated in the Bill, the initial declaration will have no effect on those whom it declares are cohabiting.

The fact that this option will exist at law offers a whole new sphere of security to individuals who wish to be protected by law, even though their partner is not of the same mindset.

It is a fact that some individuals are completely dependent on their partners, which leaves them exposed to potential risks should the relationship, which up until that point was not regularised, end. The fact that that person can push for regularisation of the relationship gives access to a number of secured rights from claims to movable property in their shared residence, to the right to ask for maintenance for children upon the termination of the relationship to getting financial assistance, depending on the case in hand.

This Bill is open for public consultation to ensure that it fully addresses the needs of Maltese cohabitants. Feedback is being solicited on www.socialdialogue.gov.mt/cohabitation until May 9.

A question-and-answer session for those wanting further elucidation will be held, details of which will be announced shortly.