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Living in Sin with No Strings Attached. Is it so?

Back in the day, having an intimate relationship with someone and living under the same roof was considered taboo, and such couples were labelled as 'living in sin'. The only socially-acceptable relationship of a couple who live together and raise a family was that of a heterosexual married couple. Anyone else outside of that definition became an outcast and looked down upon.

Times have changed and Maltese law now allows same-sex marriage and civil unions. Couples who decide to live together without any formal ties are free to do so without being judged. Perhaps it is with this preset in mind that we can fathom the thought that despite the fact that couples have been cohabitating for decades, our legislators have only gone so far as recognising them as a couple in their own right and as a unit in 2017 by the Cohabitation Act, which was a ground-breaking legislation in Malta.

However, despite the good intentions behind such legislation and the idea that cohabiting couples are to be given some form of protection, the said law was flawed. It distinguished between de facto cohabiting couples and couples who decided to formalise their union through judicial acts and contracts and gave certain rights that were highly debatable - so much so that the Kunsill Notarili ta' Malta (the Chamber of Notaries of Malta) directed its members not to publish cohabitation agreements. Although the Cohabitation Act was in force, the said directive coupled with the way that the said legislation was worded and interpreted at the time rendered the Cohabitation Act ineffective and the purpose behind its promulgation was defeated. This led to the present situation where the 2017 Cohabitation Act has been repealed and replaced by the Cohabitation Act 2020, though the latter still retained some basic elements and principles of the former.

Under the new legislation, similar to the one that was repealed, cohabitation laws are only applicable to couples (irrespective of their sex or gender) who are in an intimate relationship with one another. However, the new legislation makes it clear that for rights and obligations arising out of their cohabitation to be recognised and enforced under Maltese law, a public deed is necessary. This means that couples who want their union to be recognised and formalised must do so by entering into a public contract before a Public Notary and such a contract will be binding on the couple as from the date of publication, and from the date of enrolment vis-a-vis third parties. To this effect, the Notary Public is to be provided with a free status certificate issued in accordance to Article 251(3) of the Civil Code.

The legislation also provides instances where public contracts published in terms of the

Cohabitation Act are null and void by law. Thus, by way of example, persons who have

not yet attained the age of 18, siblings, family relatives in the direct line or persons who

are married or in a civil union or persons who are bound by a previous cohabitation

agreement with third parties may not enter into such cohabitation contracts. Interestingly,

individuals who are still legally married to a third party or still undergoing separation

proceedings in court are prohibited at law from entering into a cohabitation agreement with

their love interest. This is a new concept which is being introduced with the newly

enacted legislation - a concept which is close yet not identical to bigamy (where one person may not be married to two people at the same time).

Statistics show that more couples are opting to share their lives together without any formalities and without any strings attached. There seems to be the prevailing idea that cohabitation brings about absolutely no obligations towards each other and that, should the relationship go sour, the couple can simply part ways. But is this true? It may be the case that the couple decide to let things be and take their course. However, it seems that by virtue of this new legislation couples are given the option as to whether they want to formalise their union or not. They are given the right to opt as to whether they wish to have their union regulated by the community of acquests or not, and such decisions are included in the said cohabitation contract that is required for any rights and obligations to be conferred on the couple.

However, unlike those married couples for whom the regime of the community of acquests applies, cohabitants have been afforded only a limited community of acquests: contrary to married couples, not all assets and liabilities become joint property from the date of the publication of the contract. The cohabitation home (the couple's residence) becomes part of the community of acquests if it is acquired subsequent to the registration of the union. Donations and acquisition of such property by way of succession are however excluded. Similarly, all movables in the cohabitation home and acquired after the registration of the union are deemed to be common property unless they were acquired by means of a donation, a personal gift or by way of succession. Any other asset acquired subsequent to the registration of the cohabitation agreement is still deemed to be the exclusive property of the cohabitant in whose name it is registered.

It is evident that although new legislation does not put married couples and cohabiting couples at par (since it transpires that the community of acquests, if chosen by the same couple, is limited to the cohabitation home and its contents only), it does protect cohabiting couples from investing their time, energy and money into a property that they might otherwise be casually evicted from. This is the balance that the legislators have adopted in order to ensure that justice prevails, whilst at the same time respecting the freedom that certain couples embrace due to their reluctance to enter into the obligations of marriage.

But do cohabiting couples have any rights obligations at law? The most interesting and perhaps most controversial right conferred to a cohabitant is the right to be considered as a tenant residing in the cohabitation home. Cohabitants have also been conferred with the same rights as married couples or as persons who entered into a civil union and have the right to take all medical decisions in relation to the other cohabitant, thus making cohabitants each other's next of kin to the exclusion of parents and siblings. Should one of the cohabitants pass, the surviving cohabitant would then have a 12-month grace period within which he / she would be entitled to continue to reside in the cohabitation home. Interestingly, he or she would also be entitled to a widow's pension in terms of the Social Security Act, despite not being a spouse. On the other hand, cohabitants are duty bound to maintain each other and to contribute towards the needs of the family as well as to "look after, maintain, instruct the dependent children taking into account the abilities, natural inclinations and aspirations of the children".

Similar to separation proceedings, the dissolution of the cohabitation agreement occurs either by mutual consent or by way of application before the competent Court. Should the cohabiting couple decide to tie the knot or enter into a civil union, the cohabitation agreement is extinguished and terminated for all intents and purposes of the law as from the date of marriage or the civil union.

Reading through the newly enacted legislation, it is evident that cohabiting couples who choose to formalise their union by means of a contract, choose to take their relationship a step further. The idea that couples simply live together under one roof with no strings attached seems to be only applicable to those couples who choose not to regulate their relationship, and who are willing to take the risk of not being eligible to partake of the rights and obligations that such formalisation brings about. The question that remains to be answered - is it a risk worth taking?

Dr Abigail Critien

Family Law - Civil Law - Employment Law

This commentary should not be regarded as legal advice. If you are cohabiting and would like to understand your rights and obligations under Maltese law, contact us so we can advise you.

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