ARTICLE
18 January 2024

Choosing To Co-Habit In Malta

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Fenech & Fenech Advocates

Contributor

Established in 1891, Fenech & Fenech Advocates is a multi-disciplinary full service law firm with diverse areas of expertise, including corporate and commercial law, M&A transactions, financial services, tax, immigration, banking, trusts and foundations, aviation, intellectual property, maritime law and marine litigation, yachting, employment law, environmental law and various other areas.
When a couple chooses to reside together continually and habitually in a common home, they may opt to regulate their position...
Malta Litigation, Mediation & Arbitration

When a couple chooses to reside together continually and habitually in a common home, they may opt to regulate their position, in accordance with the provisions laid out in Chapter 614 of the laws of Malta, the Cohabitation Act. This law allows for persons who intend to cohabit, or who are already cohabitating, to regulate their Cohabitation by means of a Cohabitation agreement.

ESTABLISHING COHABITATION

Cohabitation can only be contracted by parties who have reached eighteen years of age, and who are not biologically related. Persons who are interdicted or incapacitated, or incapable of using reason, as well as people who are married or in a civil union with third parties or have already entered a deed of Cohabitation with third parties cannot enter into a Cohabitation agreement.

The Cohabitation agreement must be in the form of a public deed drawn up by a Notary, who is obliged to explain in detail, the consequences of the said agreement to the parties. In turn, the parties must declare that nothing precludes them from entering a valid public deed of Cohabitation, and they are obliged to provide the Notary with a free status certificate. The parties have the option to choose the applicable law for the purposes of regulating their Cohabitation agreement. Failing to indicate otherwise, it is presumed that the applicable law is Maltese law.

Upon the date of publication, the deed is effective between the parties, and would subsequently be effective against third parties upon enrolment thereof in the Public Registry. After enrolment, the Director of the Public Registry has twenty working days to issue a Cohabitation Certificate.

RIGHTS AND OBLIGATIONS

Cohabitation allows cohabitants to benefit from several rights specific to labour and the family granted to persons who are married. Upon satisfying certain criteria at law, cohabitants are entitled to non-contributory social assistance, a widow's pension, the right to apply for a retirement pension, sickness assistance, unemployment benefit and the right to maternity benefit. They are also entitled to several allowances, such as the supplementary allowance, the children's allowance, an allowance in connection with children in care, and a right to an allowance for disabled children. Cohabitation grants cohabitants the right of habitation in the Cohabitation home, and more importantly, the right to take all decisions relating to the medical care of the other cohabitant.

Cohabitants shall have equal rights and equal responsibilities, with a duty to support each other morally and materially. They are bound to maintain each other and to contribute towards the needs of the family, in proportion to their means and their ability to work. Cohabitants also have duties towards their children, to look after, maintain, instruct and educate their children taking into account their abilities, natural inclinations and aspirations.

COMMUNITY OF ASSETS

Contrary to spouses in marriage, when entering Cohabitation, the assets of the cohabitants remain separate – belonging to the individual party. Interestingly however, cohabitants may choose to establish the community of assets in the deed of Cohabitation. The community of assets in the cohabitation context will only apply to the Cohabitation home, when the acquisition is made after the public deed of Cohabitation, and to movables found in the Cohabitation home acquired after the public deed of Cohabitation. The law qualifies 'movables found in the cohabitation home' as including ornamental and decorative movables kept in the home but excluding, money, securities, vehicles, boats and other movables purchased for the purpose of being used exclusively by one cohabitant. Therefore, all other assets which do not relate to the Cohabitation home, are considered assets belonging to the individual party.

DISSOLUTION OF COHABITATION

A request for dissolution of a Cohabitation agreement can be filed either by one cohabitant against another or mutually. The procedure requires the assistance of an advocate, and authority to proceed from the Civil Court, Family Section. To initiate the process, a letter needs to be filed in the Family Court Registry registering the intent to proceed with the dissolution of Cohabitation. Following this, the parties are required to appear before a mediator.1 The mediator will first attempt to reconcile the parties, and if unsuccessful will explore with the parties, and their legal representatives, the possibility of concluding a dissolution of Cohabitation agreement. If the cohabitants, reach an agreement, the Court will authorise the parties to proceed with signing a dissolution of Cohabitation agreement, whereas if the mediation process results futile, the matter would need to be presented before the Honourable Judge.

When filing an application to dissolve Cohabitation before the Court, there is no need for one party to attribute fault to either party as a reason for requesting dissolution. In fact, the Cohabitation Act makes it clear that the grounds for obtaining personal separation laid out in the Civil Code – adultery, desertion, excesses, cruelty, threats or grievous injury2 on the part of one spouse against the other or against the children do not apply for the purposes of an action for dissolution of Cohabitation. However, where evidence of acts of domestic violence have been produced, the Court has the power to issue a protection order or a treatment order to protect the safety of the parties involved or in the best interest of the children. The party receiving the application, has a right to file a reply and put forward all pleas which may be made in a cause for separation.

During the pendency of the dissolution of Cohabitation proceedings, the Court may take temporary decisions as to who is to reside in the Cohabitation home, order the payment of a maintenance allowance for either one of the cohabitants, give directions concerning the custody and maintenance due with regards to the children. Whereas upon pronouncing judgement, according to the circumstances of the case, the Court shall decide what shall become of the Cohabitation home; direct to which of the parties will the custody of the children be entrusted, fix the time, place, and the manner the parties will have access to their children and terminate the community of assets, if applicable.

RECONCILIATION

Reconciliation of the parties during the pendency of proceedings, terminates the action for dissolution of Cohabitation. However, if parties reconcile after the Cohabitation agreement has been dissolved, this does not constitute a reunion, but they would need to re-enter into a new Cohabitation agreement to benefit from the rights and obligations laid out in the Cohabitation Act.

Footnotes

1. The Mediator has the same functions as a mediator assisting a couple through the personal separation process. See my previous article entitled 'Separation under Maltese law – Part 1: The Journey to Amicable Solutions' for more information on the mediator's role.

2. For a definition of the grounds for personal separation, see my previous article entitled 'Separation under Maltese law – Part 3: Contentious Personal Separation Proceedings'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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