Do cohabitants have rights?

Cohabitation, or common law marriage, is when two persons decide to live together and behave to the outside world just as a married couple would. Why would people choose to cohabit? Is it purely a decision based on their unwillingness to be tied down? Or is it based more on the fact they are incapable of getting married? And, if people choose to cohabit, do they have the same standing at law as a married couple? Do cohabitants have any benefits that married couples do not? And, finally, can cohabitants be considered a family, even though they are not bound by marital ties?

Article 10 of the International Covenant on Economic, Social and Cultural Rights puts the family at the forefront of every right by stating that “the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses”.

The family is referred to as being the natural and fundamental group unit of society. And, in the same article, the International Covenant of Economic, Social and Cultural Rights adds a sentence regarding marriage. Does that mean the term “family” is applicable only to one based on marriage?

Nowadays, the fact that the term “family” refers to a unit based only on marriage does not seem to be endorsed by the European Court of Human Rights. In fact, in a number of cases, the said court referred to family as one based on “emotional ties”, such as in Johnston and Others v. Ireland (1986).

Presently, a cohabiting couple in Malta does not have the same rights and obligations as a married couple. A cohabiting couple will not inherit each other in the case of intestacy and they are not entitled to the reserved portion as a spouse would be. Marriage gives rise to the reserved portion, which is a portion of the deceased’s estate allocated to the surviving spouse and children. However, since, in a cohabitation, the cohabitant does not have the same status as a spouse, then the cohabitant is not entitled to the reserved portion. The only possible solution for a cohabiting couple is to institute each other as heir in a will. Nevertheless, they would still not be entitled to the reserved portion.

Succession is not the only factor that people who choose to cohabit are giving up. There is the issue of presumed paternity. In marriage, children born out of such marriage are presumed to be of the husband. However, in cohabitation, such presumption does not exist to the detriment of the children because if the cohabiting couple do not register the child as being of the cohabitant male then the father is not legally bound to maintain such child, unless, of course, he subsequently acknowledges the child as his own.

Maintenance is not the only bone of contention regarding children; the right and obligations of care and custody will not apply as well! However, if the child is acknowledged as being the male cohabitant’s child, then the father is obliged by law to provide maintenance to such child, immaterial of the fact that the child’s parents are unmarried.

What about the matrimonial home? The community of acquests? They both belong to the realm of marriage. If a couple is not married, then there is no matrimonial home and such home will be governed by the law of “co-ownership” if, in fact, they are co-owners.

Community of acquests is the most popular matrimonial regime in Malta and it takes effect immediately upon marriage unless the married couple expressly chose another regime. However, in cohabitation, no such regime exists, so, in effect, if a cohabitant opts not to work to take care of the family and if such cohabitation subsequently ends, the said cohabitant will not be entitled to anything except whatever s/he owned in his/her own right.

What about maintenance to the cohabitant who was left by the other cohabitant? Is such cohabitant entitled to some sort of maintenance? According to the Civil Code, maintenance is solely a realm belonging to spouses. However, in a recent amendment to the Criminal Code, the term “spouse” in article 338(z) has been removed in favour of the term “person” so as to extend a degree of protection to cohabitants. That is, according to the Criminal Code, it is a contravention for a person not to give maintenance to another person if ordered by the court or if agreed so by contract.

Cohabitation is clearly not marriage and this is amply clear in present legislation because legal protection is only limitedly extended to cohabitants. However, is this limited protection, in fact, helping to safeguard the sanctity of marriage or is it merely withholding rights to cohabitants?

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Dr Mangion is a lawyer and a published author with a special interest in family and child law.