The Cohabitation Bill, currently being read in Malta’s Parliament, has the aim of protecting the rights of those considered most vulnerable in a relationship. It seeks to provide a legal framework within which cohabiting heterosexual or same-sex couples can agree to certain arrangements. The term ‘cohabitant’ implies a person who is continually and habitually living with another person in an ordinary, primary common home with whom he has an intimate relationship, and together consider themselves a couple, and is not already legally bound to another person. Persons who although being in a marriage or civil union are separated de jure shall also be considered as cohabitants provided all the other aforementioned elements are satisfied.
Another important definition that may be pivotal in the legal interpretation of this Bill is that of the ‘ordinary, primary, common home’, which according to the bill means: “that home within which the cohabitants live together, belonging to either one of the cohabitants or to both of them in whichever portion, or possessed by title of lease or any other title, either together or by one of the cohabitants.”
The Bill proposes to introduce new concepts of law and new ways to formalize what was till now an unregulated way of life. In so doing this may cause an upheaval for those adversely affected, such as landlords and family members, and possibly cohabitants themselves. It proposes three types of cohabitation; de facto cohabitation, cohabitation regulated through a public deed, and cohabitation through a unilateral declaration.
De Facto Cohabitation
In de facto cohabitation the cohabitants live together without registering their cohabitation arrangements and without any of them seeking a unilateral declaration with regard to their relationship. This does not give rise to mutual legal rights and obligations and does not confer legal recognition to the relationship between the parties. This notwithstanding after the lapse of two years of cohabiting the following consequences are being proposed :
- A cohabitant will be considered as the closest person of the other cohabitant for all intents and purpose of the law; and
- A cohabitant will be considered as a tenant for all intents and purposes of the law with regard to the lease of the ordinary, primary common home contracted by the other cohabitant, irrespective of the date of constitution of the lease. The owner however, will hold the right to refuse to renew such contract constituted by any one of the cohabitants once that contract expires;
- A cohabitant will have the right to take decisions relating to the medical care of the other cohabitant.
Cohabitation by Contract
Alternatively cohabitation may be entered into by means of a contract. This is possibly the least controversial form being proposed and entails a public deed between the two cohabitants which must be duly registered to be valid insofar as third parties are concerned. Such contract will have to include among others, provisions dealing with the house that is to be deemed the ordinary primary common home of the cohabitants, the division of assets and liabilities in case of separation, maintenance, and the right of children in this context. The Cohabitation Contract includes, inter alia, the right of the cohabitant
- to live vita durante in the ordinary, primary, common home held jointly with the deceased. This right ceases in case the survivor contracts a marriage, civil union, or enters into cohabitation with another person;
- to maintenance in the event that one of the cohabitants dies intestate during the cohabitation, and in the course of separation if so agreed to in the contract of cohabitation;
- to take decisions relating to the medical care of the other cohabitant;
- to be considered as the closest person to the cohabitant for all intents and purposes of the law;
- to be considered as a tenant for all intents and purposes of the law with regard to any lease of the ordinary, primary common home constituted by contract by any one of the cohabitants, irrespective of the date of the constitution of the lease, as well as with regard to any commercial lease under the Civil Code. The owner of the said property shall however retain the right to refuse to renew the aforementioned contract constituted by any one of the cohabitants once that contract expires;
- to be regarded as having the same rights granted to any person married or in a civil union in terms of rights related to labour and family;
- to be entitled to various social security services as if the cohabitants are in a civil union or are a married couple.
Possibly the most controversial form being proposed is the Unilateral Declaration of cohabitation by means of which a cohabitant can, by the mere filing of a judicial letter, formalise a cohabitation even where the other cohabitant refuses to do so through a contract. The declaration is to be confirmed on oath by the applicant. If the other cohabitant disagrees he or she would have to reply within two months from being served with the judicial letter. In default of a contestation such judicial letter will constitute the necessary proof that the cohabitation between the parties commenced on the date indicated by the applicant.
The basic rights and duties this Bill seeks to protect
Article 30 of the Cohabitation Bill summarizes these rights and obligations. These are
- The right to financial aid in certain circumstances, especially were children are involved;
- Rights concerning movables found in the ordinary common home of the parties. The Bill lays down in article 31 that there shall be a juris tantum presumption that the cohabitants are entitled to an equal portion of the movables found in the ordinary, primary common home which were acquired during the period of cohabitation. Personal gifts, moneys, securities, and domestic animals are excluded;
- The right of the cohabitant to continue to reside in the ordinary, primary common home for a reasonable period of time after the separation;
- The duty to pay for utilitites;
- The right of the surviving cohabitant to reside in the ordinary, primary common residence of the parties. This right of residence will reflect the duration of the cohabitation provided the number of years does not exceed 15 years;
These rights and duties automatically apply to couples under a Cohabitation Contract as well those cohabitating following a Unilateral Declaration.
Termination of cohabitation contract
The cohabitation contract is terminated either upon the death of one of the cohabitants, or through a public deed, or when the cohabitants cease to cohabit together. In the latter case one of the parties may lodge an application under oath asking the Court to declare the date from which the parties ceased to cohabit together as the date of termination of their cohabitation.