Monday, 3 September 2012

Independent: Draft cohabitation bill ruffles feathers, raises eyebrows
02 September 2012, by Annaliza Borg

While government MP Jean Pierre Farrugia has made it clear he will be voting along party lines when it comes to deciding on the Cohabitation Bill unveiled this week, he would have preferred the legislation to have referred to any two people who live together and not only those in intimate relationships.

Sharing his views with The Malta Independent on Sunday, Dr Farrugia questioned why such controversial subjects, such as IVF and homosexual rights, were being raised now on the eve of an election and when the government’s majority is not secure.

“The government must decide whether it wants to continue with the legislature till the end, or not, because if it cannot continue governing it is useless to burden the people with such controversial subjects,” he believes.

Although the Bill appears to have been drafted in such a way as to avoid controversy, the subjects themselves are highly controversial, he observed. Meanwhile, independent MP Jeffrey Pullicino Orlando, effectively the government’s coalition partner, said in comments to our sister daily newspaper earlier this week that he thinks the Bill is a good step forward but that he will be moving amendments.

But no one, Dr Farrugia remarked, really knows what he has in mind.

While he believes that the word ‘marriage’ should be reserved for heterosexual couples because, he said, since its inception marriage has always been intended for a man and a woman, he feels gay people should still have rights.

Discussing the proposed Bill, which has been slammed by the gay community as “unacceptable”, an “insult” and a “slap in the face,” Dr Farrugia said it definitely gives rights to people living together and does not discriminate against gay people.

But he observed that such subjects carry a great risk of alienating a great many people.

“The signals people are receiving are not clear,” he noted while explaining that one day things seem to be a matter of business as usual and the next day the government proposes a Bill of this sort.

This, he warned, could very well lead to a lower-than-usual turnout at an election.

Cohabitation and IVF will be discussed at the PN Executive Council tomorrow, along with the Franco Debono conundrum.

The Cohabitation Bill, proposed on Tuesday, is entitled “Act to Provide for the Regulation of Cohabitation”. It recognises same-sex relationships and heterosexual couples living together, and introduces rights and obligations.

The Bill is open for consultation until 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.

Introducing the Bill this week, Family Minister Chris 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 signed contract. The law will therefore recognise such relationships and introduce 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 needs 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.

Discussing the Bill with The Malta Independent on Sunday, Aditus founder Dr Neil Falzon remarked that the rights and obligations emanating from the Bill are mainly related to property and compensation in cases in which a relationship is dissolved.

In de jure relationships, a heterosexual or a gay couple go to the public registry and register the relationship. By means of a public contract, things like maintenance, property, children and what happens in case of a break up, can be regulated. However this can still be done before the Bill comes in.

Partners in such a relationship will be considered as next of kin when it comes to hospital treatment and in issues of foreign affairs in case of third country nationals who would be able to live and work here.

There might also be the possibility of visiting the next of kin in prison and bereavement leave but this is not yet clear.

When it comes to Aditus’ stand on the Bill, the NGO agrees with the Malta Gay Rights Movement that Malta needs to go for marriage equality or have equal rights like married couples.

While the Opposition has refrained from commenting on the content of the Bill, saying it would be making its remarks in Parliament, PL MP Owen Bonnici remarked that the Cohabitation Bill has been presented 14 years after it was proposed in the PN 1998 electoral manifesto.

“It merits close scrutiny and a thorough dissection and therefore I think it is premature to express oneself on the actual merits of the proposed legislation,” he told this newspaper.

The Labour Parliamentary Group is taking this Bill very seriously and is in the process of holding an internal debate on the most salient matters. Making a point of principle, he made it clear that he completely disagrees with Minister Chris Said’s position that a same-sex couple does not constitute a family.

“Minister Said apparently still embraces the ancient view that matters related to same-sex couples are private-life matters. On the contrary, I believe that matters relating to same-sex couples are family matters,” he noted.

Same-sex couples are not second-class couples who should be “merely tolerated” but, rather, people who are born and endowed with civil and human rights like everybody. Rather than pegging the civil rights of same-sex couples to cohabitants, the legal status of same-sex couples should be elevated to a civil union that effectively grants them all the civil rights pertaining to married couples.

“I believe that all men and women are born equal, independently of their race, colour, creed or sexual orientation and therefore I cannot but express disdain at the government’s homophobia,” he said.

When it comes to the content of the Bill, he preferred not to go into further detail before the PL’s parliamentary group studies it properly.

Legalising same sex marriage

Over the past 10 years, several countries and US states followed The Netherlands, the first country to legislate in favour of gay marriage, in 2001. Here is a brief description of marriage equality laws in a number of countries and states.

The Netherlands

This was the first ever State to legalise same-sex marriages in April 2001, after pressure in the mid-eighties and nineties from gay rights activists. By the end of the nineties, in 1998, registered partnerships were introduced in Dutch law. Such partnerships were meant for same-sex couples as an alternative to marriage; however, they could also be entered into by heterosexual couples. It is interesting to note that about one third of the registered partnerships were of opposite-sex couples.


The Equal civil marriage consultation process took place this year on the government’s proposals to enable same-sex couples to have a civil marriage. Current legislation allows same-sex couples to enter into a civil partnership, but not civil marriage. This is set to change despite strong Opposition from the Catholic Church, especially in Scotland.

The key proposals are:

To enable same-sex couples to have a civil marriage i.e. only civil ceremonies in a register office or approved premises (like a hotel)

To make no changes to religious marriages. No religious organisation will be forced to conduct same-sex religious marriages as a result of these proposals

To retain civil partnerships for same-sex couples and allow couples already in a civil partnership to convert this into a marriage

Civil partnership registrations on religious premises will continue as is currently possible, i.e. on a voluntary basis for faith groups and with no religious content

Individuals will, for the first time, be legally able to change their gender without having to end their marriage


In January 2010, the Portuguese Parliament passed a Bill to remove marriage discrimination, but rejected the proposal to allow the entitlement of adoption by same-sex couples. The Bill became effective in June 2010, removing the legal reference to marriage being that between two people of the opposite sex.

In the first year since coming into force, 410 same-sex couples married.


In 1998, Belgium legislated on ‘statutory cohabitation’, giving a limited set of rights to registered same-sex and opposite-sex couples. This model also extended to people living together yet not within a relationship context, such as siblings and other relatives. In 2003, Belgium became the second country in the world to legislate on same-sex marriages.


The law legalising same-sex marriages came into force in 2005. This was preceded by the recognition of civil unions on several city councils during the 1990s and early 2000, granting benefits for unmarried couples of any sex.

United States of America

Marriages and civil unions involving same-sex couples are not recognised by the United States Federal Government. Such couples are also not recognised by the US Immigration Department, with the consequence that homosexual partners of American citizens may not be reunited with their partners. This limitation extends to homosexual couples who have either contracted valid marriages, or entered into civil unions in other jurisdictions.

Despite this ban at federal level, six US states recognise marriage equality granting the possibility of same-sex couples to marry in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and Washington DC.

New York legislated in favour of same sex marriage last year.


Before the passing of the act legalising same sex-marriages in 2005, court decisions across Canada, starting from 2003, already legalised same-sex marriages in eight out of 10 provinces and one of three territories. In those years, more than 3,000 same-sex couples celebrated their marriages. However, most legal benefits commonly associated with marriage had already been extended to cohabiting same-sex couples since 1999.

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