29 August 2012 by Annaliza Borg
Cohabitation is a state of fact, a choice made by several couples and a social reality, and the government is therefore obliged to regulate it by law, said Justice and Family Minister Chris Said yesterday.
Nevertheless, a gay couple is not a family: “It is not the government’s intention to have a gay couple on the same level as a family,” Dr Said remarked.
Launching the nine-page Bill, he made it clear from the outset that cohabitation is definitely not another type of marriage. The Bill is entitled ‘Act to Provide for the Regulation of Cohabitation’, recognises same-sex relationships and heterosexual couples living together, and introduces rights and obligations.
Shortly after the news conference, the Malta Gay Rights Movement and several people commenting on social media including Facebook, described the Act as hugely disappointing. According to the MGRM it fails to attain even the minimal level of recognition acceptable, that is civil unions at par with marriage.
In a comment on his Facebook wall, independent MP Jeffrey Pullicino Orlando said: “The proposed Bill, which provides for the regulation of cohabitation, is a long-overdue step in the right direction. I may be proposing some amendments at the appropriate moment during the forthcoming parliamentary debate.”
The Bill is open for consultation till the end of September and the government plans to have it moved in Parliament in the next session, that is, between September and December this year. In the meantime, the Embryo Protection Bill, often referred to as the IVF Bill, is also in consultation till 14 September.
Dr Said noted that same sex relationships are no longer regarded as illicit or illegal. This is not about interfering with people’s lives, he said, but to respect the rights especially of the weaker partner.
There are two types of cohabitation – de facto and de jure. In the latter, couples decide to regulate their relationship by means of a public contract. Although this has always been possible, such contracts will have more weight once the law is enacted.
De facto cohabitation is when there is no contract between the couple or one part refuses to have a contract signed. The law will therefore recognise such relationships and introduces rights and obligations.
The definition of a cohabitant in the Act is: “One of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship, who are not related to each other within the prohibited degrees of relationship or married to each other and who immediately before the time that the relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period.”
A number of criteria need to be followed for relationships in which no contracts apply. The couple need to be living together for two years or more if there is a child or for five years or more in cases where there are no children.
The law also provides guidelines for the courts in case of partnership dissolution and states that children’s rights must be protected by the courts at any stage. It also outlines how a civil partnership can be terminated.
The law is intended to underline the principles of civil partnerships and regularise them, however it does not speak of benefits or rights which couples in cohabitation may have, such as lower income tax rates as married couples have. Such regulations may eventually be introduced by the responsible ministers.
The Cohabitation Bill was one of the things promised in the President’s opening speech of Parliament, at the beginning of the legislature, in May 2008. Dr Said explained that while he has concluded the draft, he has continued on the work carried out by his predecessors, including former minister Carmelo Mifsud Bonnici.
Asked whether this Bill is generating controversy among PN MPs, Dr Said noted it has been discussed with the Parliamentary Group and there has been agreement for the Bill to be taken forward. When it comes to civil society, he said if one waits for 100% backing, this will never happen because the Bill is of a sensitive nature. The government though is not bowing to the Church’s demands or teachings because if so, it would never have been proposed. There is agreement however that the Bill is very good to regulate the situation, he said.
Since the Bill does not at all provide for people related to each other and live together, Dr Said replied there are currently discussions on the succession law because although the phenomenon is regulated, there is space for fine tuning. This also needs to happen in view of some EU directive that must come in within three years.
The Act can be downloaded from the government’s website: https://secure3.gov.mt/socialpolicy/SocProt/family/cohabitantsact.aspx
The consultation period ends on 30 September and submissions can be sent by email to email@example.com or by post to the Justice, Public Consultation and Family Ministry at Auberge de Castille, Valletta.
MGRM expresses disappointment
In a statement, the Malta Gay Rights Movement (MGRM) said it was involved in a number of consultation meetings with Minister Said regarding the legal recognition of same-sex couples and their families. MGRM presented the minister with its position paper on marriage equality published in January and which laid out the reasoning behind the movement’s demands.
“It is hugely disappointing that the Bill proposed does not accede to most of MGRM’s demands and fails to attain even the minimal level of recognition acceptable, that is civil unions at par with marriage. As things stand, the Bill acknowledges those who enter into a de jure cohabitation agreement as next of kin and grants residency rights to those who come from Third Countries but continues to exclude these couples from the government’s definition of family.”
The Malta Gay Rights Movement believes such a Bill continues to stigmatise same-sex couples and their families as inferior by preventing access to equal rights and creating a separate form of recognition that is by far inferior to marriage. It also serves to justify and perpetuate the homophobia that exists in society.
“We call on the government to take a leadership role in this matter and ensure that all citizens have access to equal recognition before the law rather than allow for the prejudice and homophobia of some sectors of society from presenting a more just law,” it said.
For those same-sex headed households which also include children, the role and contribution of the non-biological parent is only recognised if and when the biological parent dies, to the detriment of the children concerned. For those same-sex couples who are both registered on the child’s birth certificate as parents, as is possible for those children born in the UK and a number of other EU countries or Australia for example, it will not be able to register their child in Malta in a similar manner. In effect, the child will lose a legal parent on moving to Malta. This is unacceptable and considered to be an infringement of the child’s rights as well as a breach of the freedom of movement directive where EU citizens are concerned.
‘It is not the government’s intention to have a gay couple on the same level as a family’