Thursday, 13 September 2012

Malta Today: The Cohabitation Bill | A guide to the gay and lesbian outrage

Gay activist Silvan Agius explains why the cohabitation bill infuriated human rights advocates and gay community.
National Tuesday 11 September 2012 - 12:30

The fact that a civil cohabitation partnership may be terminated by one of the parties following the simple filing of "a judicial act" makes the process somewhat unceremonious.

Silvan Agius is policy director at the International Lesbian-Gay Association of Europe and lives in Brussels. He writes in his own capacity.

Much speculation on the likely contents of the cohabitation bill was floated in the media in the past couple of years. The initial indications pointed towards a bill that would provide a basic set of rights and duties, as well as the legal recognition of all unmarried couples irrespective of sexual orientation. Then, earlier this year, a spokesperson from the Ministry of Justice was reported to have stated that the bill would recognise the 'civil partnerships' of same-sex couples. Rightly or wrongly, this gave the impression that government was ready to provide for much more than the mere recognition of same-sex partners as cohabitees. In the absence of a Ministerial rebuttal of this claim, many took the media reports as factual. Indeed, faced with this prospect of the legal recognition of their families for the first time, the gay and lesbian community allowed its expectations to grow significantly. Their demand for an equal level of recognition to what is already enjoyed by most of their fellow Western and Central Europeans counterparts seemed to be finally about to materialise.

After a long suspense brought about by several delays in the publication of the bill as well as the raised hopes due to the various media reports and official statements; as far as the gay and lesbian community is concerned, the Rights and Obligations of Cohabitations Act presented by the Minister for Justice, Dialogue and the Family is a bitter reminder of their legal inequality. A comment by a member of a Facebook group calling for the introduction of marriage equality or civil partnerships in Malta managed to sum-up the hurt and frustration of the whole community succinctly: "What an insult to my 16-year relationship!"

So what is it with this bill that has caused this gay and lesbian outrage?

1. Civil cohabitation partnership

The bill covers both different-sex couples who do not want to or cannot marry, and all same-sex couples' relationships that meet the minimum set of criteria - such as the minimum duration of the relationship and joint residence. It then introduces an automatic recognition of their relationships in the form of de facto cohabitation, and provides them with the possibility to enter into a 'civil cohabitation partnership' through a public deed. While both models of cohabitation are open to all couples irrespective of sexual orientation, it is clear that de facto cohabitation was mainly intended for unmarried heterosexual couples, while 'civil cohabitation partnership' was primarily intended for gay and lesbian couples since they are legally precluded from marrying one another.

By way of comparison, in the United Kingdom, 'civil partnership' is a same-sex institution that was introduced in 2004 as a 'separate but equal' form of legal recognition of same-sex relationships providing virtually all the rights and duties of marriage. Few exceptions differentiate civil partnership from marriage, amongst them the ability to have a religious wedding.

The squeezing in of 'cohabitation' between 'civil' and 'partnership' in the Maltese bill is no coincidence. Instead, 'civil' and 'partnership' were meant to outshine 'cohabitation' in the eyes of gays and lesbians and introduce a semantic similarity to the form of same-sex legal recognition found across most of Europe (e.g. UK model referred to above).

On the other hand, the packaging of de facto cohabitation along with civil cohabitation partnership into one bill was in most likelihood meant to hide the usual difference between the two institutions from the sight of those that still find the legal recognition of same-sex partnerships unpalatable. This balancing act is clearly a difficult one, not least because it relies on the need for both sides to accept the deal, and for neither to cry out foul. It also relies on a gay and lesbian acceptance of a bad deal, as the presumption that it better than the current absence of any recognition whatsoever.

2. Few new rights

The form of recognition provided and the few new rights detailed in the 'civil cohabitation partnership' amount to a far cry next to what emanates out of 'civil partnership' in other parts of Europe. In fact, most rights outlined, are already available, despite a law regulating cohabitation as everyone can approach a notary and regulate matters related to common property, payment of maintenance and similar matters.

The key new additions by this bill relate to recognition of same-sex partners as 'next of kin' and the fact that the bill refers to them directly for the first time in Maltese law making. No more.

3. Entry and dissolution

It is peculiar that while the Marriage Act does not require couples to seek independent legal advice about their marriage contract, prospective civil cohabitation partners are legally obliged to do so, in spite of the much weaker form of contract afforded. Once that requirement is met, the partners can then proceed and enter into a civil cohabitation partnership by public deed. The bill does not foresee any secular celebration in an official building and therefore maintains the current inability of same-sex couples to seek an appropriate form of social recognition and public celebration of their relationships, involving their family members, friends and colleagues.

Of greater concern is the fact that a civil cohabitation partnership may be terminated by one of the parties following the simple filing of "a judicial act [...] informing the party of the termination of the civil cohabitation partnership" and when "one of the parties contracts marriage with a third party." Parting is therefore equally unceremonious. No reason, no separation/divorce or any lengthy legal proceedings are needed. Instead, all that one has to do is to terminate the partnership through a judicial notification, or if he/she is unclassy enough - run away and marry someone else of the other sex without even saying goodbye!

4. Definition of family

Maltese law does not define family, and the cohabitation bill does not address this issue either, so there is no problem with the bill in that respect. However, when the Minister was prompted on the subject during the press conference launching the bill, he responded unequivocally that: "If you ask me whether we will be recognising [same-sex partners] as a family; No we will not be recognising them as a family."

While this statement does not have any bearing on the application of the law, it surely rang alarm among all the gays and lesbians in the audience. Indeed, it says much about the thinking that was applied in the drafting of the bill. It also captures the paradox that is encapsulated in the bill, which is that any new recognition afforded was carefully kept away from encroaching on the privileged status of married heterosexual couples in the eyes of the law.

5. Other issues

There are plenty other issues that are problematic, often due to the silence of the bill in their regard. For example, while the bill makes reference to children in cohabiting relationships, it does not introduce any ability for a child to establish a tie with both parents in the event that they are of the same-sex. This leaves children legally vulnerable, not only in the event of the tragic death of their legal parent but also in their daily life. Moreover, the bill does nothing to recognise marriages and registered partnerships of same-sex partners contracted abroad.

Beyond the difficulties that this brings to the couples in question, it also introduces a possibility for persons who are already married or registered in entering into a civil cohabitation partnership in Malta, ironically allowing for the possibility of bigamous relationship.

And what is it that gays and lesbians want?

The Malta Gay Rights Movement and aditus have both called for marriage equality for gay and lesbian couples and their call has garnered support both within the gay and lesbian community and beyond.

This support of an equal form of recognition for heterosexual and same-sex couples was also manifested through the outrage expressed by several people, including the wider gay and lesbian community, towards the Cohabitation Bill.

Moreover, there is a growing consensus that this bill should be rejected altogether (at least from a gay and lesbian point of view) as no set of amendments will bring it up to the level of recognition that same-sex couples and their children deserve.

Beyond this, and more importantly, gays and lesbians care about their families and hence cannot help but oppose any legal barriers that continue to block them from calling the loved ones as their 'husband'/'wife' and their children 'son' or 'daughter' with the same normalcy of different-sex couples.

Clearly, this call does not exclude any other forms of recognition that the legislator may wish to extend to Maltese couples whether it is cohabitation, or registered partnership. And surely, not a call against the recognition of heterosexual couples in the form of de facto cohabitation, civil cohabitation partnership or whatever else.

What this call excludes is a form of fake equal recognition that is camouflaged as something else. Society should not expect anyone to accept a bad deal or second-class treatment. European Malta should surely not expect this from its gay and lesbian citizens or residents either.

Finally, it should not fall to the discriminated and the marginalised to explain to society why they should be included and treated equally.

That role belongs to the political class. They should lead the way and educate society through the active removal of discrimination and any other unnecessary blockages that may exist in law and policy.

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