An analysis of the notary’s role as imposed by the local legislative framework on cohabitation

Abstract

The aim of this professional report is to assess the progress made with regards to cohabitation in Malta and the role of the notary in light of the current Cohabitation Act. In the late 1990‟s, the thought of regulating cohabitation started to transpire. Nevertheless, it was not until 2017 that the Cohabitation Act was enacted. The legislator wanted to legally recognise and regulate cohabitation, confer rights and obligations on cohabitants and safeguard the interests of vulnerable parties including children. Chapter 1 provides a historical background which goes back to the thought of just regulating cohabitation in the 1990‟s up to the enactment of the Cohabitation Act in 2017. It then delves into the key provisions of Chapter 571 of the Laws of Malta, mainly those concerning the rights and obligations of the cohabitants as well as the three types of cohabitations; De facto, by unilateral declaration and by means of a contract between the parties. The 2017 Cohabitation Act was put into question especially with regards to de facto cohabitation and cohabitation by unilateral declaration. In fact, three years later, this Act was repealed and replaced by Chapter 614. Chapter 2 underlines the criticism the 2017 Cohabitation Act was subject to as well as the changes which were introduced in the 2020 Cohabitation Act, in an attempt to ameliorate the status of cohabitation from a regulatory perspective. The most noticeable change was the elimination of both de facto cohabitation and cohabitation by unilateral agreement which meant that nowadays cohabitation is only recognised by an agreement between the parties, done before a notary. The role and duties of the notary throughout the cohabitation process are also analysed. Chapter 3 is dedicated to cohabitation in foreign jurisdictions, specifically UK, Italy and the Netherlands. Similarities and differences in the way cohabitation is dealt with in these jurisdictions and in Malta are highlighted. Essentially, the situation in Italy is similar to that of Malta since cohabitation is particularly regulated by means of Law Number 76 of 2016 while no cohabitation regulations have been enacted in the UK and the Netherlands to date. This professional report concludes with the author giving her opinion on the introduction of the Cohabitation Act and the changes which were introduced later on.