Complete Guide to Cohabitation in Malta 2024

What is Cohabitation?

The term "cohabitation" refers to a living arrangement in which two individuals in a relationship who are not married share a household. In Malta, the Cohabitation Act, enacted in June 2020, provides a legal framework for such couples to register their union. This registration affords them rights and protections similar to those available to married couples, covering various legal aspects, from the formal recognition of the relationship to the implications of its dissolution. It's important for couples considering cohabitation in Malta to understand these regulations to safeguard their rights and responsibilities fully.

Benefits and Obligations

• Social Benefits: Entitlement to non-contributory social assistance, a widow’s pension, retirement pension eligibility, sickness assistance, unemployment benefits, and maternity benefits.
• Allowances: Eligibility for various allowances, including supplementary allowance, children's allowance, allowance for children in care, and allowance for disabled children.
• Medical Decision Rights: Right to make decisions regarding the medical care of the other cohabitant.
• Habitation Rights: Right to continue living in the cohabitation home.
• Mutual Support: Obligation to support each other materially and morally, contributing towards the needs of the family according to their means and abilities.
• Children’s Welfare: Responsibilities towards any children from the cohabitation, including their maintenance, education, and overall well-being, considering the children’s abilities and aspirations.

Cohabitation vs Marriage

Cohabitation and marriage in Malta share many legal rights and responsibilities but maintain distinct differences. Like married couples, Cohabitants are granted a range of legal protections and social benefits such as pension rights and medical decision-making capabilities for each other. However, the legal framework around cohabitation offers more flexibility compared to marriage. For instance, cohabitants' assets generally remain separate unless specifically united under the cohabitation agreement, contrasting with the default community of property in marriage. Additionally, dissolving a cohabitation agreement can be less cumbersome than divorce, not requiring fault to be proven and often resolved through mediation before escalating to court proceedings. Despite these differences, both arrangements aim to provide a stable and legally recognised framework for couples, albeit tailored to different needs and preferences.

Eligibility Criteria

• Minimum Age: Individuals must be at least eighteen years old to enter into a cohabitation agreement, although exceptions exist for minors aged sixteen and up.
• Capacity to Contract: Individuals must be capable of using reason and should not be interdicted or incapacitated.
• Marital Status: Individuals must not be married or in a civil union with another person.
• Existing Cohabitation Agreements: They must not have previously entered a deed of cohabitation with another person.
• Biological and Legal Constraints: The cohabitation agreement cannot be between direct descendants or ascendants, siblings, the person adopting and the adoptee, or any similar relationships where legal or biological constraints exist.
• Consent: Mutual consent must be given to the cohabitation agreement.
• Freedom from Previous Bonds: Individuals must not be bound by any relationship regulated under a foreign law that provides for rights and obligations between the parties, irrespective of its title.

Establishing a Cohabitation

1. Eligibility Check: Ensure both parties meet the eligibility criteria, including being at least eighteen years old (or sixteen with specific legal authorisation), not being married or in a civil union, and not being biologically closely related or previously bound by another cohabitation agreement.
2. Community of Assets: Decide whether to include the community of assets in the cohabitation agreement. If chosen, this provision will apply to assets such as the cohabitation home and movables acquired after signing the deed unless explicitly excluded.
3. Choose Applicable Law: Determine which law will govern the cohabitation agreement. By default, this choice will be Maltese law unless another jurisdiction is specified in the agreement.
4. Drafting the Agreement: Find a family lawyer in Malta to draft the cohabitation agreement; your lawyer will then explain the legal implications and ensure that the agreement complies with Maltese law.
5. Declaration and Certificates: Both parties must declare before a notary that nothing legally precludes them from entering into the agreement. They must also provide a free status certificate or an equivalent document, which should not be issued more than ninety days before the agreement's publication.
6. Signing the Agreement: Sign the public deed of cohabitation before the notary. This act formally documents the agreement and the mutual consent to cohabit under the stipulated terms.
7. Registration: The notary publishes the public deed of cohabitation and enrols it in the Public Registry. This step makes the agreement effective firstly between the parties and subsequently, upon registration, against third parties.
8. Obtain Cohabitation Certificate: After the agreement is registered, the Director of the Public Registry will issue a Cohabitation Certificate within twenty working days. This certificate serves as the official document affirming the cohabitation status.

Termination of a Cohabitation

1. Legal Representation: Engage an advocate to assist throughout the process, providing legal advice and representing your interests during mediation and possible court proceedings.
2. Filing for Dissolution: To initiate the dissolution process, file a letter at the Family Court Registry registering the intent to proceed with the dissolution of the cohabitation. One party can file this letter unilaterally or mutually by both cohabitants.
3. Mediation: After filing for dissolution, both parties are required to attend a mediation session. During this session, the mediator will first attempt to reconcile the parties. If reconciliation is not achieved, the mediator will then work with the parties and their legal representatives to explore the possibility of concluding a dissolution of the cohabitation agreement. Should an agreement be reached, it will be presented to the court for authorisation, allowing the parties to proceed with signing the formal dissolution agreement.
4. Court Proceedings: If the mediation does not result in an agreement, present the case before a judge in the Family Section of the Civil Court. The court process will require both parties to discuss and settle matters related to asset division, maintenance, and child custody (if applicable).
5. Judgment and Registration: Once the court reaches a decision, the judgment on the dissolution of the cohabitation will be issued. The court will instruct the Registrar of Courts to notify the Director of the Public Registry to register the dissolution.
6. Issuance of Dissolution Certificate: After the registration of the dissolution, a certificate confirming the termination of the cohabitation agreement will be issued by the Public Registry.