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Rights for homosexual couples

The government’s cohabitation law has probably enjoyed one of the longest gestation periods in Maltese legislative history. It is wheeled out every time the “Christian-Democrat” Nationalist Party finds itself in electoral or other difficulties.

The promised introduction of a cohabitation law – which first saw the light of day in the then Prime Minister Eddie Fenech Adami’s 1998 manifesto and received another brief flurry of attention in the divorce referendum last year – is now getting another airing. The government is seeking to garner electoral votes wherever it can find them in the run-up to the imminent general election. It is also seeking to erase its image as the nasty party and, in the process, wrong-footing the opposition Labour Party.

It has linked the “soon to be announced” cohabitation law with the introduction of rights – yet to be specified – for homosexual partnerships (same-sex partners who live and set up home together).

The decisive result of the national referendum on the introduction of divorce legislation in Malta last May marked a notable advance for Maltese civil rights. Not since the mid-1970s, with the decriminalisation of homosexuality and adultery, which were until then offences punishable by imprisonment, and the introduction of civil marriages, had Malta struck such an important blow for justice and civil rights.

There remains one more outstanding item of civil rights business to be confronted. There is no single law that safeguards the position of homosexuals in society and a whole raft of laws that deny basic financial and work-related entitlements to homosexual couples in the fields of, for example, pensions, housing, inheritance rights and fiscal benefits and entitlements.

Will the proposed cohabitation law right these present injustices? I set out below a checklist of the main points against which the new Bill, once it has been published, can be judged.

The overriding practical consideration that the cohabitation law must deliver, if it is to be judged worth the paper it is written on, is that it should give those homosexual partnerships falling under it the significant majority of the rights and obligations that marriage confers on heterosexual married couples. (I do not enter here into a discussion about the introduction of same-sex marriages in Malta – although there are perfectly respectable arguments for this – since, by definition, the cohabitation law will not deal with that vexed issue.)

But the cohabitation law must make a significant difference to the currently vulnerable position of same-sex cohabiting partners: By giving them the opportunity to gain legal recognition for their relationship; by giving them rights and responsibilities concomitant with those affecting heterosexuals who are married. Or it will simply be condemning them to the same legal limbo that exists today.

The main features to be sought should therefore include, as a minimum, that the same-sex couple would go through a recognisable public ceremony equivalent, to all intents and purposes, to that for civil marriages.

They should have the right to recognise each other as next-of-kin.

Each partner would have the right to claim from the estate of a deceased partner, whether or not the latter had made a will. In relation to pensions, the couple should be placed in the same position as spouses by making the surviving partner entitled to a survivor’s pension in the same way as a surviving spouse.

Where a cohabiting homosexual couple share a home (regardless of who owns it), a partner should not be able to sell, lease or mortgage the shared home, or offer it as security for a loan, without the prior written consent of the partner.

As to tax and social welfare, the position of homosexual cohabiting couples should be on a par with married persons under the relevant social security and tax laws.

If the cohabitation law were to cover these basic aspects, Malta would be going at least some way towards publicly accepting stable, same-sex relationships, where couples have made a serious decision to seek legal recognition of their relationship.

I personally remain doubtful as to whether a cohabitation law on its own will suffice. I believe that the need for enacting more extensive and comprehensive legislation covering same-sex civil partnerships, or even possibly same-sex marriages, cannot long be postponed if the unfair discriminatory treatment of homosexual couples in Malta is to end.

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