by Dr Rebecca Mercieca – Junior Associate
Chapter 614 of the Laws of Malta, in other words: ‘the long-awaited Cohabitation Act’ was formally introduced into Maltese Law in June 2020, repealing Chapter 517 of the Laws of Malta and providing more rights and protection to couples seeking an alternative to marriage or civil unions.
Whereas previously there existed three variations which would establish cohabitation between the parties, being De Facto Cohabitation, Cohabitation by means of a unilateral declaration and cohabitation by means of a contract, the new law has done away with the first two models and completely excluded them from Maltese legislation.
Couples may be recognized as cohabitants if they continually and habitually reside together in the cohabitation home as a couple if they are not legally bound to other persons. Such couples become recognised as cohabitants upon entering into a public deed of cohabitation and a certificate of cohabitation shall be issued within twenty days from the enrolment of the public deed of cohabitation in the Public Registry.
Within the same public deed, the couple may declare the applicable law of their cohabitation being either the law of the state where the parties habitually reside at the time of conclusion of the public deed, the law of a state of nationality of either one of the parties at the time the public deed is concluded, or the law of the state under whose law the public deed of cohabitation was constituted.
The new law has made it very attractive for cohabiting couples to formalise their cohabitation by a public deed, and such mainly due to the list of rights such couples would become entitled to. Undeniably, cohabitants are regarded to have the same rights granted to a person who is married or in a civil union with regard to rights related to family and labour, including rights related to leave and the right to take all decisions relating to the medical care of the other cohabitant. Amongst others, cohabitants shall also have the right to a widows pension, to be entitled to non-contributory social assistance, to apply for a retirement pension, to have the right to unemployment benefit, children’s allowance.
For a couple to start the process of entering into a public deed of cohabitation, they are to provide the notary with a ‘free status certificate’, which must be issued by the Director of the Public Registry of Malta/Gozo not more than 90 days prior to the publication of the public deed of cohabitation.
The cohabitation home does not necessarily have to belong to both parties; it may belong to either one of them, to neither of them or to both- such is completely up to the couple to decide, with a iuris tantum presumption that cohabitants have the duty to pay all utilities related to the cohabitation home in equal shares among themselves for the period they reside in it, irrespective of whether the accounts of the utilities are addressed to one cohabitant only. Whereas the community of acquests, being limited to assets related to the cohabitation home under the Cohabitation Act, is not automatic to the formalization of the cohabitation and it is up to the couple to declare whether they would like to ‘opt-in’ or otherwise before the notary.
Changes to the cohabitants’ agreement and relationship are also regulated by the Cohabitation Act, and the parties may at any time, correct and/or amend the deed of cohabitation by means of a subsequent public deed with the authorisation of the Court.
While dissolution of the cohabitation may occur either by mutual consent or unilaterally by one of the cohabitant’s application before the Court, and such without the necessity to impute the other party any fault leading to the request for dissolution.
Dissolution of the cohabitation relationship will only be recognised through a court’s decree whereby both parties agree on the terms of dissolution or through sentencing if the parties do not agree. Upon such, the Registrar of Courts shall notify the dissolution to the Director of Public Registry so that it will be registered within the Public Registry.
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