‘Married or separated persons should not qualify for cohabitation regime’
The House Social Affairs Committee has been advised that a married or separated person should not qualify for the registration of a civil union with a third person under the cohabitation regime. The committee was being addressed by Philip Magri, who said that this problematic issue arose in the absence of divorce legislation in Malta.
He also said not all persons living under the same roof should qualify for registration under the cohabitation regime, but this had to be limited to those living together as a family and should exclude those relatives who resided together for company or simply as flatmates. Moreover, cohabitees should only qualify for a civil union if they also fulfilled the criteria for those who could validly contract marriage.
Dr Magri proposed that the system to be adopted ought to provide a register in which couples would register their status of cohabitation from which a number of obligations and rights would emanate.
He also suggested that any such registration ought to be formally made by means of a public deed that ought to include the terms and conditions on which the relationship would be administered. But the terms of this cohabitation contract should not fall below a minimum level of protection that would be provided by law.
Dr Magri expressed concern about those cohabiting couples who did not register their relationship. He advised on having in force those legal provisions that would truly protect the weak members of society to avoid situations of unfair enrichment and the disastrous consequences on the termination of such cohabit-ation.
In this regard, he referred to the regulatory regime on cohabitation that is found in France and in Ireland, and proposed that such a situation ought to be called a “civil union” as distinguished from those “civil partnerhips” which were regulated by the Civil Code.
He also referred to judgments which found that a cohabiting partner ought not to receive compensation for services rendered, and had no right to re-enter the home once thrown out by the other partner. Dr Magri reiterated that where legal regulation of cohabitation was missing, the weak partner could receive little protection from abuse.
Both issues under public and civil law had to be regulated in a regime of cohabitation. These included issues related to taxes, pensions, immigration, maintenance, succession and property rights.
Dr Magri proposed that the regime adopted in Malta should ensure the existence of an obligation to reciprocal assistance and maintenance throughout the relationship. However, any such obligation of maintenance should not continue following the termination of the cohabiting relationship unless exceptional circumstances existed.
Should a cohabiting couple register their relationship, they should be given the right to have a joint will, and where no will had been drawn the law should provide for a reserved portion for the surviving partner. Cohabiting partners who chose not to register their relationship would only be entitled to inherit one another where a will was specifically drawn up.
The administration of property and assets acquired during the civil union should be automatically that of separation of estates, as opposed to the community of acquests which applied to married couples. Dr Magri justified this difference by indicating that the Irish Law Commission also consid-ered community property schemes as possibly being over-inclusive or as “conferring rights and duties on cohabitees, which were never intended by the parties”. However, should the cohabitees wish to regulate their property by adopting a system similar to co-ownership of acquisition, then the law should allow for this to be done by means of a deed.
Dr Magri also proposed that a couple would qualify for a civil union where they show the existence of a durable relationship, the existence of a sexual relationship and a level of reciprocal commit-ment towards a common life. Referring to European Court judgments, he said that the proposed cohabitation legislation should apply to both heterosexual couples and same-sex couples.