It is recently becoming more popular for couples not to commit to marriage, owing to the emotional and financial difficulties that come about from terminating a marriage.
Therefore, many couples tend to live together in a state of cohabitation without any formalities. Traditionally, this meant that the parties in the state of cohabitation had no rights and obligations towards each other and in the event of a breakup, one of the parties could suffer a degree of prejudice.
In order to give the parties an element of stability and security without binding them to the duties and responsibilities that marriage brings with it, the Cohabitation Act (Chapter 614 of the Laws of Malta) seeks to create a legal relationship between the two cohabiting parties.
Who may enter into a state of Cohabitation according to the Act?
Cohabitation may be entered into by anybody who conforms to the provisions of article 4 of the Act. This means that anybody who is over the age of 18, or 16 saving for the formalities required in Article 3 of the Marriage Act, so long as the party/ies are not:
- Ascendants or descendants in the direct line (including adopted persons);
- Siblings or half-siblings;
- Legally incapacitated or interdicted or lack the use of reason;
- Already married or registered by deed or unilateral declaration, in Malta or outside of Malta, together or with a third party.
Types of Cohabitation
De facto Cohabitation
De facto cohabitation is a right of action which a party may file, against another, upon the termination of their relationship, when they would have been previously living together in a state of cohabitation without it being formally registered as such.
An action for de facto cohabitation can be filed, by either party, upon the termination of a relationship wherein the couple resided together for at least two (2) years, within twelve (12) months starting from the date of termination of the relationship, before the competent court.
The rights either party may request from the court are the following:
- The right of habitation in the common home, for a specified period stipulated by the court, in order to have time to find alternative accommodation.
- Where the other party is deceased, the right of habitation in the common home, when said home was owned by the deceased party in full ownership or emphytheusis. This applies as long as this right does not limit the reserved portion of one of his heirs.
- The right to be compensated for any patrimonial loss which that person may have suffered, where the other person has enriched himself to their detriment, in accordance with articles 1028A and 1028B of the Civil Code.
It is also useful to note that, similar to cases of divorce and separation, the rights laid down in 1. and 2. above shall cease upon the plaintiff entering any subsequent marriage, cohabitation or civil union with a third party.
Cohabitation by unilateral declaration
The provisions allowing for one of the parties to enter into cohabitation by unilateral declaration, as stipulated in the old Cohabitation Act (Chapter 571), have been repealed by the new Cohabitation Act and thus such a form of cohabitation is no longer allowed. However, Chapter 571 shall still apply to any cohabitation of this kind, entered into before the coming into force of Chapter 614, until the five (5) year period elapses or until the couple changes their status.
Registered cohabitation
For a couple to be able to take full advantage of the rights conferred to them by this Act, they would have to enter into a public deed wherein the parties declare themselves as being in a state of cohabitation. As it is a public deed it must be signed before a notary and registered within the public registry.
When entering into cohabitation, the parties may opt to choose a particular law which they’d wish to govern their relationship.
Their options consist of:
- Either the law of the state in which one of the parties habitually resides at the time of signing the deed;
- The law of a state of citizenship of either one of the parties at the time the public deed of cohabitation is concluded;
- The law of the State under whose law the public deed of cohabitation was constituted.
Should the parties refrain from stipulating any of the aforementioned laws in their contract, Maltese law shall apply.
Rights Conferred by the Cohabitation Act
Once a couple registers their deed of cohabitation, they are subjecting themselves to the rights and obligations as stipulated in Chapter 614. These rights are, as previously mentioned, akin to a stripped down version of the rights and obligations of matrimony.
Such duties include the duty to provide and take care of the other party, both morally and materially and the duty to maintain, educate and take care of any dependant children.
Furthermore, both parties are given rights regarding the sale of the cohabitation home, even if the house is owned solely by one of the parties.
Lastly, the parties may even opt to enter into a ‘community of assets’ when drafting their deed of cohabitation. The community of assets shall vest both parties with equal ownership of the cohabitation home and its furnishings if such assets were acquired by onerous title after the public deed of cohabitation. Therefore, any such assets given to the parties by donation inter vivos or causa mortis shall not constitute as part of the community.
Termination of Cohabitation
Cohabitation may be terminated unilaterally or by mutual consent. In both cases, one must file an application to the competent court in order to attain a decree or judgement declaring the termination of the cohabitation. In the case of the latter, the parties must follow up the decree with a public deed.
Ultimately, cohabitation offers the parties a certain amount of security within a relationship without the being in the confines of marriage. It is thus easier to get into and easier to get out of, making it an alternative option for the couple.
SMM Legal
At SMM Advocates we can assist with sensitive matters and provide legal advice related to the Cohabitation, as well as general advice on various family law related matters. We are available for both face-to-face or online consultations, get in touch by filling in our contact form or call +356 2123 7167 for immediate assistance.