Wednesday, 25 May 2011

Independent: Cohabitation law to exclude separated persons

'PN is saying no to divorce, but yes to same sex relationships'
22.5.2011 by STEPHEN CALLEJA

The Prime Minister's refusal to publish the cohabitation bill before the referendum on divorce takes place on Saturday clearly indicates that the bill will not regularise the situation of people who have once been married, and who are now separated and are living with a new partner.

The draft cohabitation law being discussed within government structures will only formalise relationships between brothers and sisters, other relatives, and people of the same sex living under one roof. Without a law on divorce, it would be impossible to include provisions for the regularisation of cohabiting couples if one or both were previously married, as this is the closest one can get to legalising bigamy.

An advanced draft presented to Parliament's Social Affairs Committee specifically excludes the possibility that cohabiting couples could have their relationship formalised in the absence of a divorce law. The government is refusing to answer questions on the matter.

Legal experts told The Malta Independent on Sunday that while the Nationalist Party, on the one hand, is being conservative in fighting adamantly against the introduction of divorce, and has taken an official stand against it, the party is drafting a liberal law that would regularise same-sex relationships (unless one or both of the partners had been married in the past), as well as situations in which people of the same family live in the same house. Without divorce, the cohabitation law has to exclude people who have been married.

As such, a 'No' victory in the divorce referendum would effectively deal a double blow to separated people in new relationships: they would not be able to seek a divorce, and they would not be in a position to regularise any new relationship they entered into after their separation.

The only way that cohabiting couples would be able to regularise their position is if divorce were made legal. This would possibly open the way for provisions to be included in the cohabitation law, meaning that people would then have a choice – to either get divorced and remarry, or divorce and cohabit.

There is also the possibility that if divorce becomes legal, the cohabitation law would still not include provisions for cohabiting individuals who have been married previously. This could be done to avoid putting marriage and cohabitation on the same level. But, of course, if divorce is introduced, couples could then re-marry if they want to regularise their relationship.

Legal experts point out that the absence of a divorce law would make it impossible for a relationship in which one or both partners had previously been married, to be formalised, since regularising that relationship would be the closest one could get to legalising bigamy.

They explained that people who are separated are still legally married to their partner, since their marriage has not been dissolved via divorce, and therefore any formalisation of their relationship with another partner would effectively mean that they would be legally linked to two partners at the same time.

An advanced draft of the cohabitation bill that was presented to the Social Affairs Committee when the law was being discussed makes it clear that an absence of divorce legislation would make it impossible for cohabiting couples to regularise their relationships at law.

The report, which The Malta Independent on Sunday has seen, states that "in the absence of a law that provides for divorce in Malta, couples in which one or both partners are married or who have separated from their partners should not be entitled to register their relationship".

When the government announced it was working on a cohabitation law, the impression it gave was that it would include cohabiting couples. But it is now clear that the people were misled into thinking this would happen, since the cohabitation bill will not include provisions for people who were previously married.

The exclusion of separated people from the draft cohabitation bill was mentioned as one of the bill's possible "surprises" when Opposition Leader Joseph Muscat was answering questions during the Inkontri programme aired on One TV on Monday.

Likewise, pro-divorce movement chairperson Deborah Schembri, in a televised press conference forming part of the referendum campaign last Tuesday, said she strongly suspected that the cohabitation bill that will be published will not include provisions to cover people who have already been married, and who are now in a relationship with someone else.

A few days ago, in a meeting with the pro-divorce movement, which asked for the publication of the bill specifically for this reason, Prime Minister Lawrence Gonzi said he did not want to publish its contents in the days before the divorce referendum.

Dr Gonzi that day had said that "divorce and cohabitation were not exclusively linked" and that "cohabitation does not necessarily presume marriage but recognises people living together, be they siblings and cousins among others."

These comments now hold more significance as they appear to be a confirmation that the cohabitation law will do nothing to formalise the relationship of couples with previous marital baggage. While divorce deals with marriages, cohabitation will deal with relatives or people of the same sex who had not been previously married. It is also thought that, in order to formalise a homosexual cohabitation, the couple would need to register themselves not as a couple but rather as flat or house-mates.

It is expected that the cohabitation law, which did not form part of the Nationalist Party's election manifesto, but which was mentioned in the President's address to the House of Representatives on the opening day of Parliament after the 2008 election, will be debated in Parliament by the end of the year, Justice and Home Affairs Minister Carmelo Mifsud Bonnici has said.

But the government is keeping tight lipped on the subject, as it seeks to separate the issues of divorce and cohabitation.

Reports that the draft bill had been finalised and has been sent to the Office of the President (OPR) could not be confirmed. Questions sent to both the OPR and to the Foreign Affairs Ministry (as Minister Tonio Borg is also the Leader of the House) remained unanswered this week.

The Justice and Home Affairs Ministry was also silent on a specific question that was sent by this newspaper last Tuesday. The question was: "Will the cohabitation bill being drafted by the government exclude regularising the position of cohabiting couples, one or both of whom were previously married to someone else?"

No answer has been forthcoming from the ministry, although one was promised.

Last Monday, Dr Muscat said that one reason why the government is not giving any details about the cohabitation bill could be because it will contain a surprise. The Opposition Leader raised the question of whether the draft bill will regularise the position of "only those who have never been married".

In this case, Dr Muscat remarked: "What's the use" of such a bill, considering that although there are a number of relatives who live under the same roof and whose legal position needs to be clarified, the great majority of cohabiting people are couples with one or both partners having been married previously to someone else.

Dr Muscat said that one of the drafts being discussed at government level specifically excluded people who had been married from benefiting from the cohabitation bill.

Logically, a cohabitation law would make sense if it follows a law legalising divorce, he said. In the present situation, cohabitation is an imposition, because people cannot get married a second time. By introducing divorce, people would then have the right to choose between cohabiting and remarrying.

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