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  • The Cohabitation Bill – Some observations

  • By Dr. Arthur Galea Salomone - President of Cana Movement

    The Ministry for Social Dialogue, Consumer Affairs and Civil Liberties has recently published a draft bill to regulate cohabitation. Each person, deserves to be treated with respect and dignity and it is therefore the legislator’s duty to cater for the rights and obligations of parties in different forms of relationships be it marriage, civil union or cohabitation. The absence of any form of legal protection for cohabitating couples could, in certain circumstances, lead to abuse, particularly abuse of the more vulnerable partner in a relationship. Accordingly, the need of a legislative proposal to regulate cohabitation has in fact been long overdue.

    The Cohabitation Bill proposes three different cohabitation regimes, the first being de facto cohabitation, the second being cohabitation by unilateral declaration and the third being cohabitation by notarial contract.

    Two persons, in an intimate relationship, who habitually share the same home as their ordinary and primary residence for more than two years, are regarded as de facto cohabitants. De facto cohabitation triggers a number of consequences at law. De facto cohabitants are recognised as co-tenants at law, regardless of what has otherwise been agreed between lessor and lessee, they are treated as the “closest persons for all intents and purposes of law” and they may not be compelled to testify against one another in circumstances where married persons would not be so compelled.

    A de facto cohabitant who unilaterally sends a judicial intimation to his / her partner who is refusing to enter into a contractual commitment to regulate their reciprocal rights and duties is, in addition to the above rights, entitled to claim financial assistance from the other party in respect of minor or disabled children. Additionally the judicial letter would entitle the cohabitant to continue residing in the common home for a time after separation and/or after the death of the cohabitant.

    Registered cohabitants who choose to regulate their cohabitation by notarial contract are granted a very wide protection in terms of law. Above all they are given the same rights in relation to “work and family” which married persons or persons in a civil union are entitled to. Additionally they are deemed as co-tenants not only in so far as their common ordinary residence is concerned but also in relation to commercial and agricultural leases, regardless of the lessor’s will or intent.

    When the proposed Cohabitation Bill is enacted as law, partners will be spoilt for choice of a legal regime to regulate their personal relations. It appears that there will be at least five alternative regimes to choose from: marriage (which can now be dissolved at will after four years of separation); civil union (which in effect is equivalent to marriage, in all respects, other than in name) and three forms of cohabitation. Ironically the only forms of relationship which are not expressly catered for by law are indissoluble marriage, on the one hand, and unregulated cohabitation, on the other hand. In the absence of the possibility to opt out of the cohabitation regime, partners may no longer freely choose to cohabit for more than two years without subjecting themselves to the rigours of the cohabitation law. This approach it may be argued belies the liberal thinking which supposedly underscores recent legislative developments in this field. Personal freedom it appears is being sacrificed at the altar of pseudo liberalism.

    Whereas a Cohabitation Bill is, from a civil and secular perspective, desirable, the current proposal is flawed in a number of respects. Besides creating reciprocal rights and obligations, law is also prescriptive in nature and it eventually shapes the society it regulates. Whereas a cohabitation law which provides legal protection to partners in good faith is laudable, a cohabitation law which promotes transient relationships is misconceived and eventually takes its toll on the stability of personal relationships, families and society at large.

    The two year cohabitation requirement is far too short to trigger off far reaching legal consequences. There is no limit to the number of cohabitations which trigger off legal rights or the mandatory passage of a specified time between one cohabitation and another for legal rights to kick in. Neither should legal protection afforded to registered cohabitants necessarily be equivalent, in so far as work and family rights are concerned, to rights afforded to couples in marriage or civil union. To do so is to devalue and disincentivise marriages and civil unions. There is no compelling reason to accord equivalent rights to different forms of relationships. Laws which distinguish between different forms of relationships such as co-habitation, civil unions and marriage are not discriminatory. On the contrary they acknowledge and respect differences, particularly in a society which supposedly celebrates free choice, pluralism and diversity.       

    The constitutive element for cohabitation in terms of law is a “relationship of intimacy”.  For starters, this requirement excludes from the ambit of the Cohabitation Bill whosoever cohabits, is deserving of legal protection, but is not in a relationship of “intimacy”. Siblings, ascendants and descendants are therefore not given any legal protection in terms of the Cohabitation Bill. Whilst recognising “intimacy” as essential for a cohabitation relationship, any sort of obligation of fidelity and support (otherwise applicable in marriage and civil union) is conspicuous by its absence. The proposed Cohabitation Bill appears to value transient relationships which are shorn of commitment and risks trivialising personal relationships as arrangements of convenience. The mercenary approach to personal relationships is cynically exposed in the manner in which a unilateral declaration of cohabitation may be challenged; much in the same way as a monetary claim or a bill of exchange would be challenged.   

    Another basic flaw of the proposed law is lack of legal certainly. The coming into force of rights and duties, especially if they impact third parties, should be linked to objectively ascertainable facts. Intimacy is not objectively ascertainable by third parties and is difficult to prove.  Yet de facto cohabitants who have been in a relationship of intimacy for more than two years have rights vis-à-vis third parties, such as a lessor. A cohabitant is also regarded “for all intents and purposes of law as the closest person” (next of kin ?) to the cohabiting partner. Legal certainty requires rights and duties to be specified and not merely implicitly granted by use of generic terms such as “for all intents and purposes of law”. Proper legal analysis is required in order to ascertain whether provisions of this nature impact on the laws of succession, for example, and are accordingly a precursor to complex legal battles.  

    Undoubtedly the Bill to regulate Cohabitation was well intended. However it is misconceived in a number of respects. It promotes transient relationships as a means to acquire personal rights and risks trivialising the importance of stability in personal relationships. It does not cater adequately for the best interests of children who are, more often than not, the innocent victims of family disharmony and breakdown. It triggers off, in a manner which is not objectively ascertainable, prejudicial impact of third party rights, including third party property rights and possibly third party succession rights. It is drafted in a manner which leaves a lot to be desired and is, in a number of respects, a recipe for legal uncertainty. In conclusion, it is strongly recommended that the Cohabitation Bill is taken back to the drawing board for some serious rethinking, further professional input and improved drafting.

    This article was published in the Times of Malta

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