Patrimonial rights in the Cohabitation Act : comparisons of the Maltese law to the relative foreign law

Abstract

The development of families has created the necessity of regulating cohabitation in various countries; in Malta this has taken place through the enactment of the Cohabitation Act in 2017. Cohabitants in England have no option but to rely on the English courts for protection, mostly needed by a weaker party. The power is in the hands of the court because the English parliament has never enacted a law to regulate cohabitations, in spite of several bills having been presented before it. The English courts apply different doctrines to solve disputes on patrimonial rights arising due to cohabitation, namely the purchase money resulting trust, estoppel and the common intention constructive trust, the latter being the most commonly used trust to strike a fair balance between the cohabitants and award the rights due according to their contributions. The current Act regulating cohabitations in Malta was preceded by a bill presented to parliament in 2012, which bill was never enacted as law. This bill is noteworthy since it presented a different possibility for regulating cohabitations. Also, before the said bill was presented to parliament, a series of discussions were held at committee stage with different stakeholders, whose comments and concerns remain valid. Amongst other issues covered by the Cohabitation Act, it provides for the protection of certain patrimonial rights of the parties. An analyses of this law also reveals the legislator’s intention to award greater protection in areas deemed sensitive, such as the matrimonial home and right of habitation in it.