Cohabitation : a matter of choice or necessity? : a comparative study

Abstract

Cohabitation, whether of same-sex or opposite-sex couples is rapidly increasing in Malta. This is not just an important change in the way we live but it is also a political and theoretical marker. At present Maltese law retains important distinctions in the way it treats cohabiting couples and married couples and this can have harmful effects on the welfare of children and partners on cohabitation breakdown or death of a partner. Should the law be changed to reflect this change in society? Debating cohabitation stirs up issues of morality as well. The Catholic Church has throughout the years preached against cohabitation and expressed concern about legislating on such a matter. Is the Catholic Church influential enough to halt any legislative intervention in this area? Do new additions to the Maltese Catholic Church bring with them new ideas? In Malta, compared to other countries cohabitation arises more out of necessity rather than choice as the possibility of remarriage does not crop up in all cases, either due to the partners being previously married or prohibition to marry in the case of same-sex couples. It seems unfair not to legislate on an issue where individuals do not have a right of choice and in consequence leave individuals in a vulnerable position. With the ever increasing percentage of separation cases our Courts have to deal with yearly, it seems unrealistic not to tackle the problem upfront. The Maltese Courts are still being faced with the legal problems of cohabiting partners, however without any legal material to guide them. This analytical work analysis both foreign and local legislature with reference to case law to highlight where appropriate the discrepancy between the law and interpretations taken by the Courts. Evaluating the various fonns of reform adopted by other European countries will aid in selecting the more adequate for of refonn for Malta, thus concluding the study with proposed recommendations for Maltese Legislation.