New Cohabitation Law

The Cohabitation Act, 2020

The Cohabitation Act was originally enacted on the 27^th April, 2017. Its raison d’être is to cater for couples who do not wish to be bound by either marriage or civil union, but who are nevertheless desirous of having their relationship recognised and protected.

The Cohabitation Act thereby provided for 3 distinct forms of cohabitation:

de facto cohabitation;
cohabitation by means of a contract; and
cohabitation by means of unilateral declaration.

However, on the 3^rd March, 2020, a Bill to repeal and replace the aforementioned Cohabitation Act was tabled in Parliament, which was subsequently enacted on the 5^th June, 2020 by Act XXVII of 2020. Its predominant aim is to protect the rights of the most vulnerable and to provide formal recognition of family set-ups without distinction.

Who can cohabit?

The Cohabitation Act, 2020, generally entitles persons who consider themselves to be in an intimate relationship and who wish to live together to enter into a formal cohabitation relationship in terms of the Act.

Who is a ‘cohabitant’?

As defined in the Cohabitation Act, 2020, a cohabitant is ‘a person who is continually and habitually living with another person in the cohabitation home as a couple, and who enters into a public deed of cohabitation with the other person, so long as he is not already legally bound to another person.’

Single form of cohabitation

The amendments will abolish two of the previous forms of cohabitation that were recognised under the old regime, namely:

unilateral cohabitation, whereby one member of a couple can declare the desire to cohabit by means of a judicial letter; and
de facto cohabitation, whereby a couple is automatically considered as cohabiting after two years of living together without the need for a legal document.

Consequently, in light of the new amendments, the legislator has opted to retain only one method of establishing cohabitation and this by means of a contract. This implies that only one form of cohabitation is being recognised, one which is formalised by means of a contract and registered in the Public Registry, rendering the contract a public deed, in so far as third parties are concerned. It is important to note that the said contract comes into effect:

on the date of the publication of the public deed of cohabitation, with regards to the cohabitants; and
when it is enrolled in the Public Registry, with regards to third parties.

Eligibility

The Cohabitation Act, 2020, lays down eligibility criteria that run in parallel to the eligibility criteria under the Marriage Act. In fact, a public deed of cohabitation would be regarded as null and void if made between:

persons, one of whom has not attained the age of eighteen (18) years, unless that person is so authorised by law in terms of sub-article (3) of article 4 of the Cohabitation Act of 2020;
ascendants and descendants in the direct line;
siblings, from the same parents, or from one of the parents;
the person adopting and the adopted person;
persons, one of whom is unable to give his consent for the public deed due to civil interdiction or incapacitation, or the lack of the use of reason;
persons, one of whom, or both, who are married or are in a civil union, either between themselves or with third parties, whether in Malta, or in any other country;
persons, one of whom, or both, who are bound by a previous public deed of cohabitation in accordance with this Act, together or with third parties;
persons, or any one of them, who are bound by a registered or unilaterally declared cohabitation in accordance with the Cohabitation Act, together or with third parties;
persons, or any one of them, who are in a relationship with third parties which is already regulated by a foreign law that provides for the rights and obligations between themselves, irrespective of its title.

Formalities

As any other contract, the cohabitation contract must satisfy a number of legal formalities. Article 5 of the Cohabitation Act, 2020, stipulates that any clause of the cohabitation contract that:

in any way breaches the provisions of the Act; or
in any way provides for the manner in which such cohabitation is to be dissolved,

shall be regarded as null and void.

In addition, the parties to the contract must also declare before a notary that:

there is nothing holding them back from entering such contract; and
that they are not currently legally bound to another person.

The notary is then bound to record the aforementioned declarations in the contract.

Moreover, the couple must be in possession of:

a free status certificate issued by the Director of the Public Registry of Malta; or
an equivalent document duly issued by a competent foreign authority, as the case may be.

Such certificate or document must be issued not more than ninety (90) days prior to the publication date of the contract and shall be attached to the contract.

The Act imposes an obligation on the notary before whom the parties are appearing:

to explain to them in detail the consequences of the said contract and the clauses by which the parties choose to be bound;
followed by a declaration made by the notary himself that he has duly explained the same in the said contract.
The notary is also bound to enrol the contract in the Public Registry within fifteen (15) working days from the date of the contract.

The Director of Public Registry shall, upon receiving a copy of the note of enrolment of the contract of cohabitation in the Public Registry, issue a certificate of cohabitation within twenty (20) working days from the enrolment date thereof.

Choice of applicable law

The new amendments grant the parties to the cohabitation contract the right to determine the law that shall govern the cohabitation relationship. The Act provides the parties with three options, either:

the law of the state where the parties, or one of them, habitually resides at the time that the public deed of cohabitation is concluded; or
the law of the state of nationality of either one of the parties, at the time the public deed of cohabitation is concluded; or
the law of the state under whose law the public deed of cohabitation was constituted.

In the absence of a declaration by the parties to this effect, Maltese law would be presumed to be the applicable law.

Subsequent amendments

The Act provides that the parties may, at any time during the relationship, proceed to amend or correct the contract by means of a subsequent public deed which has the authorisation of the Court. This shall be allowed, so long as the Court is satisfied

that there is nothing in the amended contract that runs contrary to the best interests of the dependent children, if any; or
that puts any one of the cohabitants in a vulnerable position.

Community of Assets between cohabitants

The Cohabitation Act, 2020, introduces the possibility of a formal community of assets regime to be adopted by the parties, at their discretion. The community of assets is not a default regime but needs to be established when entering into the cohabitation contract. If this option is availed of by the cohabitants then such community of assets:

shall commence as from the date of the publication of the contract; and
cease upon the dissolution of the cohabitation.

The community of assets shall only include the following assets:

the cohabitation home, when the acquisition is made after the cohabitation contract, even if the acquisition is made in the name of one of the cohabitants only or if the acquisition was made by moneys which either of the cohabitants possessed prior to the cohabitation; and
movables found in the cohabitation home, acquired after the cohabitation contract, even if such acquisition is made in the name of one of the cohabitants only.

However, the cohabitation home shall not be included in the community of assets if:

it was transferred to either of the cohabitants under any title before the cohabitation; or
it was transferred to either of the cohabitants by donation or succession, before or after the cohabitation contract.

The same applies to movables if they were given to either of the cohabitants by way of donation, personal gift or devolved upon them by succession from third parties.

Basic rights and duties of cohabitants

Under the new regime, cohabitants are granted extensive protection. In fact, they are given the same rights and duties in relation to “labour and family” that married persons or persons in a civil union are entitled to and responsible for.

To this effect, Article 13(2) of the Cohabitation Act, 2020, provides a list of rights afforded to a cohabitant, which includes:

the right of cohabitants to be considered as co-tenants, not only in so far as their common ordinary residence is concerned, but also in relation to commercial and agricultural leases, regardless of the lessor’s will or intent;
the rights granted to a person who is married or in a civil union in terms of rights related to labour and family;
the right to take all decisions relating to medical care of the other cohabitant;
in the event that one of the cohabitants dies during the cohabitation, the right of habitation for twelve (12) months over the cohabitation home;
the right to be entitled to non-contributory social assistance;
the right to a widow’s pension;
in the event that one of the cohabitants dies during the cohabitation, the right to apply for a retirement pension, if he had been, or was entitled to be maintained by the deceased cohabitant;
the right to payment of an age pension, subject to qualifications;
the right to receive social benefits as a foster carer, subject to qualifications;
the right to sickness assistance when the cohabitant is living with the head of the family during a period when such sickness assistance is being paid or could be paid;
the right to unemployment benefit and to special unemployment benefit, if the cohabitant is maintaining the other cohabitant;
the right to maternity benefit and maternity leave benefit;
the right to supplementary allowance;
the right to children’s allowance;
the right to an allowance in respect of children in care;
the right to an allowance for disabled children;
the right to have their dependent children live with the cohabitees in the cohabitation home, as the case may be, unless otherwise directed by an order of the competent court.

Proportion of rights and duties between cohabitants

The Act specifies the proportion of rights and duties attributed to the cohabitants. It stipulates that the cohabitants shall:

have equal rights;
assume equal responsibilities such as maintenance; and
have the duty to support each other morally and materially, as well as contribute towards the need of the family.

Obligations of cohabitants towards children

Furthermore, the Act provides for cohabitants’ obligations towards their children. It imposes the obligation to:

look after;
maintain;
instruct; and
educate the dependent children.

Maintenance

In light of the foregoing, cohabitants are duty bound to maintain their children and such obligation shall be in proportion to their means:

when such children are students who are participating in full-time education, training or learning and are under the age of twenty-three (23) years; or
they have a disability, be it physical, mental or psychological.

Cohabitation home

The cohabitants are also duty bound to establish by common accord, the cohabitation home taking into account their needs and the overriding interests of the family itself.

Where the cohabitation home is either in whole or in part owned or otherwise held under any title separately by one of the cohabitants, such cohabitant may only assign by title inter vivos his/her right over the cohabitation home:

with the consent of the other cohabitant; or
where such consent is unreasonably withheld, with the authority of the competent court; or
in a judicial sale by auction, at the instance of any creditor of the said cohabitant.

Dissolution

The amendments have also introduced the mechanism by which cohabitants may terminate and dissolve their contractual relationship. The competent Court shall:

upon a demand of one cohabitant against the other, or by mutual consent;
by means of an application filed before it,

pronounce the dissolution of the cohabitation:

by means of a decree, if both parties are in agreement with the terms of dissolution; or
by means of a judgement, in the event that the parties do not agree.

Can such action for dissolution of cohabitation be extinguished?

An action for dissolution is extinguished, namely:

through reconciliation of the cohabitants; and
by the death of either of the cohabitant, even though the said death takes place subsequent to the request for dissolution.

Miscellaneous

The Court, under the new regime, is being given outreaching powers to determine matters related to the custody of the children, as opposed to the old Cohabitation Act, which vested more power in the parents.

It is also important to point out that those couples who already have a formal relationship in terms of the previous Cohabitation Act, shall continue to be recognised as per their original contract.

As gathered from this run-through, the new Cohabitation Act introduces various measures, including the elimination of the other forms of establishing cohabitation and retaining solely contractual cohabitation, that will widen the margin of protection of the parties involved and will ensure that the parties’ concerns, rights, obligations and wishes are agreed upon and respected through their tendered consent.

Disclaimer: The information provided does not, and is not intended to, constitute legal advice. All content available is for general informational purposes only.  This may also not constitute the most updated information and you are always advised to seek legal advice.

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