Laws are laws. However, we have been taught that laws are there to serve society, to preserve order and regulate the interaction between the individual members of a particular society. Yet, as the great political philosopher John Locke wrote: “The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom.”
Laws are not ends in themselves but means that are primarily intended to allow individuals to exercise the freedom they are born with. Respect for the fundamental rights and freedoms of each and every individual human being is the hallmark of any modern, civilised and truly democratic society. Moreover, the health of a society may also be gauged by how seriously individuals take their duty to respect the rights of others.
I feel that this is extremely important to keep it in mind when discussing issues such as the Cohabitation Bill as my friend and learned colleague Arthur Galea Salamone did when writing in this newspaper on May 17.
Galea Salamone was writing in his capacity as President of the Cana Movement. The latter has also published its observations on the Cohabitation Bill as part of the public consultation launched by the Ministry for Civil Liberties.
The main criticism which Galea Salamone and the Cana Movement direct towards the Bill is that they claim that if enacted in its current form, “partners may no longer freely choose to cohabit for more than two years without subjecting themselves to the rigours of the cohabitation law”. Moreover, they assert that this approach “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”.
Should the State intervene when it appears to be the clear and manifest intention of the parties not to be regulated?
As I mentioned in my article two weeks ago, this has always been the central issue in the discussion on the regulation of cohabitation. Should the State intervene when it appears to be the clear and manifest intention of the parties not to be regulated?
Before the introduction of divorce and civil unions it could be argued, perhaps, that separated persons in a new relationship could not get divorced and re-marry and, hence, cohabitation was the only option. Likewise, when it came to same-sex couples. However, the situation has now changed drastically.
Persons who cohabit do so because they apparently freely choose not to get married or register a civil union. It is rather ironic that the Cana Movement has come out in defence of ‘free love’.
However, as I stated earlier, personal freedom also implies respect for the rights of others. What seems to have convinced the legislator that some form of regulation for cohabitants is necessary is that situations exist where, if the legislator does not intervene, a ‘vulnerable’ party may end up in a very perilous situation. Indeed, Galea Salamone accepts that “legal protection to partners in good faith is laudable”. Yet, would this be sufficient?
Moreover, one cannot assume that two persons are cohabiting because they do not wish to get married or enter into a civil union. Even if they were to do so, it would not mean that they do not wish to be recognised as a couple by the State for certain purposes at least. The Bill allows the cohabitants the opportunity to regulate their relationship or not to. If they choose not to do so, it only proposes to intervene minimally once the couple have been cohabiting de facto for at least two years. In such a situation, the Bill is proposing to recognise the cohabitant as the next of kin, as a cotenant and to not oblige the cohabitant to give evidence in court against the other cohabitant (just as in the case of married couples or couples in a civil union). Not a major intrusion into personal freedom, in my humble view.
One cannot ignore the fact that a law regulating cohabitation has formed part of the government’s programme ever since 1998, although it has taken 18 years for a government to finally present a draft law forpublic consultation.
There was an attempt in the previous legislature and I do recall a text actually having been drafted, however, the long period of tumultuous events leading to the dissolution of Parliament in 2012 put an end to that. Hence, a popular mandate for a programme that includes a law regulating cohabitation has been expressed in four successive general elections.
Having said so, I am sure that the observations by the Cana Movement are an important contribution that will allow the text to be improved upon even before the first reading in Parliament.
Many times, you only realise the importance of the legal recognition of rights when you exercise such rights or when you would wish you could but cannot because they have not been legally recognised.
One of the main distinctions between human rights and civil liberties is that whereas human rights are universally recognised, civil liberties are defined in a different manner in countries across the globe, meaning that certain countries do not recognise one or more of such liberties.
Italy, for instance, has only very recently become the last major European country to recognise same-sex relationships in some legal form or other. To ensure that the Bill was approved, the Italian Prime Minister had to request a vote of confidence in the government which he only won because he withdrew some of the clauses that his coalition partners were objecting to such as the so-called ‘stepchild adoption’ clause.
Unlike our own Civil Unions Act, which recognises the right of a couple in a civil union to adopt, in Italy the law only gives the courts the right to grant parental rights to same sex couples regarding each other’s children in certain circumstances.
I recently exercised my right to be registered as my partner’s next of kin for the first time. Although thankfully in this case it was merely a matter of filling in a form, it brought me face to face with the situation that might have been had we not been in a civil union. Moreover, in this respect, health care professionals dealt with it as though it were the most natural of things which, indeed, it is.
As Locke stated, “where there is no law, there is no freedom”. The laws enacted in this country over the past few years where civil liberties are concerned have strengthened the personal freedom enjoyed by citizens. This is a record we should be proud of and never take for granted.