Cohabitation in Malta
The term cohabitation refers to the arrangement where two people, who are not married, choose to live together in a committed partnership. This form of relationship has become more prevalent in Malta.
Chapter 614 of the Laws of Malta1 repealed and replaced Chapter 571 of the Laws of Malta. Under Maltese Law, a cohabitation relationship must be formalized through a contract. Cohabitation can only be established by individuals who are at least 18 years old and are not related by blood. Individuals who are legally incapacitated, unable to reason, or are already married or in a civil union with someone else, or who have previously entered into a cohabitation agreement with another party, are not eligible to enter into a cohabitation agreement.
The cohabitation agreement must be formalized through a public deed, prepared by a notary, who is required to thoroughly explain the implications of the agreement to the parties involved. The parties must also affirm that there are no legal barriers preventing them from entering into a valid cohabitation agreement and are required to provide the notary with a free status certificate. Additionally, the parties have the option to choose which legal system will govern their cohabitation agreement. If no specific choice is made, Maltese law will be assumed to apply.
The deed becomes effective between the parties on the date of its publication, and it will be enforceable against third parties once it is registered in the Public Registry. Following registration, the director of the Public Registry has 20 working days to issue a cohabitation certificate.
Cohabitation provides cohabitants with a range of rights typically granted to married individuals, particularly in relation to labour and family matters. When certain legal criteria are met, cohabitants become eligible for non-contributory social assistance, widow's pensions, retirement pensions, sickness benefits, unemployment benefits and maternity allowances. Cohabitants will also qualify for various other benefits including supplementary allowances, children's allowances, allowances for children in care, and support for children with disabilities. Additionally, cohabitants have the right to reside in the shared home and, crucially, to make decisions regarding each other's medical care.
Cohabitants are granted equal rights and responsibilities, including an obligation to provide both moral and material support to one another. They are expected to contribute to the family's needs according to their financial capacity and their ability to work. Moreover, they have duties toward their children, including the responsibility to care for, support and educate them in a manner that respects the children's abilities, natural tendencies and aspirations.
Unlike married couples, cohabitants retain separate ownership of their assets upon entering into a cohabitation arrangement, with each party maintaining control over their individual property. However, cohabitants have the option to create a community of assets through the cohabitation agreement. This community of assets will only apply to the cohabitation home and moveable property located within the home that is acquired after the public deed of cohabitation is executed. The term "moveables found in the cohabitation home" includes decorative and ornamental items but excludes money, securities, vehicles, boats and other items intended for the exclusive use of one cohabitant. Any assets unrelated to the cohabitation home remain the separate property of each individual party.
Can a Cohabitation Agreement be dissolved?
A request to dissolve a cohabitation agreement can be made either by one cohabitant against the other or mutually. The process requires legal representation and authorization from the Civil Court, family section. To kickstart the dissolution procedure, a letter must be submitted to the Family Court Registry indicating the intent to proceed. Following this, the parties must attend a mediation session.
The mediator's first task is to attempt reconciliation. If reconciliation fails, the mediator will then discuss with the parties as well as their respective legal representatives, the possibility of reaching a mutual agreement to dissolve the cohabitation. If an agreement is reached, the court will authorize the parties to sign the dissolution agreement. If on the other hand, mediation does not succeed, the case will be brough before a Juge for a decision.
In a cohabitation dissolution application, there is no need for one party to assign blame for the dissolution. The Cohabitation Act2 specifies that the grounds for personal separation specified in the Civil Code3 such as adultery, desertion, cruelty, or violence, do not apply to cohabitation dissolution. However, if there is evidence of domestic violence, the Court may issue a protection or treatment order to ensure the safety of the parties involved or protect the children's best interests. The party responding to the application has the right to file a reply and raise any legal points they believe are relevant.
During the dissolution proceedings, the Court may issue temporary orders regarding who will remain in the cohabitation home, whether maintenance payments should be made to either party, and how custody and child support should be handled. When the Court delivers its final judgements, it will decide the fate of the cohabitation home, determine the child custody arrangements, set visitation rights and if applicable, dissolve the community of assets.
If the parties reconcile during the dissolution proceedings, the action for the dissolution of cohabitation is terminated. However, if the parties reconcile after the cohabitation agreement has been dissolved, it does not amount to a reunion. In such an instance, the parties would need to enter into a new cohabitation agreement to regain the rights and obligations provided under the Cohabitation Act.
Footnotes
1. The cohabitation act.
2. Chapter 614, Laws of Malta.
3. Article 48, chapter 16, Laws of Malta.
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.
