'Two of a kind' a private law for non-marital unions in Malta

Abstract

I was first provoked into writing my M. Phil. dissertation on the subject of non-marital unions in view of the fact that, notwithstanding the plethora of legislation promulgated over the last years at both the national and supranational level on every subject underneath the sun, non- marital unions and cohabitation remained, at least in Malta and at the point in time when I endevoured on this project until very recently, widespread social phenomena the mere mention of which seems to leave the legislator with a trembling hand. I wondered why this was so and what were the legal consequences ensuing from the lack of 'ad hoc' regulation. I also wondered whether a comparative study of the regulation or non-regulation of cohabitation, particularly in Europe, would be of any help in determining the optimum method of regulation, particularly, for Malta. I was furthermore left entirely exasperated by the fact that there was literally no national debate as to which rights and obligations could or had to be afforded to cohabitees - a discussion which to my mind had to run concurrently with any other possible discussion as to whether a law regulating cohabitation was desirable.

At Maltese private law, the legal institute of marriage necessarily requires two persons of a different sex, forming a stable relationship founded on rights and obligations deriving from the very formalisation of that relationship. Though cohabitation is one fundamental characteristic of the latter and constitutes one of the major reciprocal obligations of spouses, cohabitation 'sic et simpliciter' can and does in fact occur when the two partners decide not to formalise their union or, being otherwise unable to do so, decide nevertheless to settle for a situation of 'living together' . Such a relationship, lacking any external legal formality, will grow or otherwise change in time entirely by and through the free will of both partners or of either partner.

Truly enough it has been suggested, all over the world since Napoleonic times, that unmarried 'partners' simply do not wish their rights and obligations to be legally regulated. In reply to this it is submitted that this by itself does not provide sufficient justification to let cohabitees fall in a legal 'limbo' of self-regulation or piecemeal regulation as is currently available at Maltese law. A comparative study of foreign laws regulating cohabitation also reveals that there is more than one reason to justify the enactment and bringing into force of such a law. A comparative study of foreign laws regulating cohabitation also reveals that there is more than one reason to justify the enactment and bringing into force of such a law. Such foreign laws still deem it necessary to regulate cohabitation - as an institute distinct from marriage - notwithstanding the existence of divorce and of same-sex marriage. Of particular interest is the history of Spain in this regard whereby since 1994 Spain has recognised unregistered cohabitation for both homosexual and heterosexual couples. [...]