Cohabitation is not a new phenomenon. It has been around since time immemorial. During Roman times there was concubinage, where due to social class or because of previous marital ties, a man was unable to marry his lover and thus kept her as his concubine – something which was tolerated. As the world progressed, cohabitation began to be shunned, and in fact the law even criminalised adultery. Although adultery may be morally wrong, making it a criminal offence can never be justified. Indeed, in Malta it is not such an offence.
Although ostracised for a time, the number of cohabitants began to rise and it is now no longer considered taboo. There are a multitude of reasons why persons choose to cohabit rather than get married. Some are unable to marry due to legal constraints, some choose to cohabit to “test the waters”, some even do so because they simply do not believe in marriage... the reasons are never ending. But the reasons are actually irrelevant.
Cohabitation is distinct from marital union and should remain so. Cohabitation is not marriage, or, as termed in American states, a common-law marriage. Should cohabitation be widened to include siblings living together? A group of friends living together? Or should it remain solely the dominion of non-traditional families? The fact is, people cohabit and something must be done about it.
Cohabitation cannot remain unregulated since this leads to legal chaos and injustices. For one, partners would not be entitled to the reserved portion according to the law of succession, as is the case for spouses and children. This means that when a partner dies, the surviving partner will only inherit whatever the deceased partner has instructed be given to the surviving partner – no more and no less.
Therefore, if by pure misfortune the deceased partner failed to mention the surviving partner in the will, the latter is left with nothing. This is patently unfair, especially if the two partners had been living together for a good number of years.
What if the partner lived with the deceased for just a few months? Should the surviving partner have any claim over the inheritance? This is an extremely delicate question because if the partner were a spouse, and the two had been married for only a short period before one of them died, the surviving spouse would be entitled to the reserved portion in spite of such a brief marriage.
If cohabitation is going to be regulated, there must be a provision defining clearly when cohabitation starts and when it ends if not terminated by natural means. Otherwise cohabitation could be claimed when it did not actually exist. For instance, if someone stays with a friend while on holiday, he or she cannot claim to have been cohabiting – and cannot claim part of the inheritance if the friend dies during that time.
Thus, the start of cohabitation should be clearly determined through some form of registration. Otherwise it could pave the way for far greater injustices and abuses than unregulated cohabitation already does.
Unregulated cohabitation gives way to maintenance issues as well in cases of the relationship breaking down. Here I am not referring to child maintenance, since this does not depend on whether the child’s parents are married. Rather, what about maintenance due to the partner? What happens if the partner has been forced to abandon a career to suit the other partner and after a time their cohabitation comes to an end? Should the partner who had to give up the career for the sake of the relationship be entitled to some form of compensation? This questions applies not just to a mother who has chosen to give up her career to take care of the children.
One partner may have had to give up a career and leave the country for a number of years to follow the other abroad. In the calculation of maintenance, current legislation takes into consideration the fact that the chances of employability have been diminished because a wife or husband has been out of the labour market for several years. Should this not be a factor to be considered in safeguarding cohabitants’ rights?
In regulating cohabitation, the effort one has put into the relationship, as well as the duration of the relationship, should be taken into account when issues of succession and maintenance are considered. Cohabitation that lasts for few months is one thing but when it lasts for many years it is a totally different matter.
Dr Mangion is a lawyer and published author with a special interest in family and child law