JCC: Detailed Analysis of the Malta Cohabitation Bill

4.9.12 by Joseph Carmel Chetcuti, View the entire paper [here].

SUMMARY OF CONCLUSIONS AND FINAL RECOMMENDATIONS

It is respectfully submitted that:

• The title of the Bill is inappropriate,

• The Bill misleadingly gives the impression that it offers same-sex and different-sex partners some form of relationship registration when it offers nothing of the sort,

• The Bill offers no opportunity to parties for dispute resolution,

• The Bill seems to be troubled over any talk of ‘sexual intimacy’, as Clause 3 of the Bill makes all too obvious, the Maltese Bill cutting out any reference to the sexual nature of the relationship as contained in sub-section 172 (3) of the Irish Act,

• The Bill is heterosexist, fails to differentiate between different-sex and same-sex relationships, subordinates same-sex partners to spouses and former spouses, and applies the ‘traditional’ heterosexual model of a working husband and a stay-at-home wife which is out-of-sync with today’s reality,

• The Bill fails to distinguish between different forms of parenting, being not only disrespectful towards same-sex parents and their partners who take on the role of parenting but also an affront to children growing up and being nurtured in such relationships which is clearly not in the children’s best interests,

• The Bill fails to make a distinction between ‘cohabitation’ and ‘living together’, and is built on the wrong premise that a de facto relationships subsist only where the parties are cohabiting,

• The requirement that parties execute a ‘public deed’ before they can access certain rights, the introduction of the fault principle and the right to seek compensation for damages all amount to ways of penalising different-sex and same-sex de facto partners,

• The ‘next of kin’ provision lacks detail and fails to make clear how and when a same-sex and a different-sex partner is the ‘next of kin’,

• The Bill has taken large slabs from the Irish Act, creating the impression that the Bill is a ‘cut-and-paste job’ that has not been properly thought through and hurriedly put together, and

• Drafting of the Bill leaves a lot to be desired, reflects poorly on Malta’s legal culture, and should be the source of great shame and embarrassment to the Ministry of Justice, Dialogue and the Family.

The undersigned advocates the following course of action:

• that the Bill currently before the parliament be immediately withdrawn,

• that a new Bill be introduced in parliament to make provision for the recognition of relationships between same-sex and different-sex de facto parties (Bill 1) –

• without such relationships being required to emulate ‘traditional’ heterosexual models of a working husband and a stay-at-home wife,
• without such relationships being made subordinate to other forms of relationships and institutions (e.g., marriage), and
• irrespective of the living arrangements of the parties and their former marital status, and

along the lines of the Relationships Act 2008 (Victoria), the aim of such a Bill being to facilitate not impede same-sex and different-sex de facto relationships,

• that Bill 1 should not seek to regulate the registration of other forms of relationships where parties may be living together but not in an intimate sexual relationship,

• that a committee of jurists be set up to identify and report on those offending areas of Maltese law that discriminate against same-sex and different-sex de facto partners,

• that upon the tabling of the report, a Bill be introduced in parliament to do away with those offending areas of Maltese law that discriminate against same-sex and different-sex de facto partners (Bill 2), and

• that legal remedies be made available to same-sex and different-sex de facto partners either by incorporating them into Bills 1 or 2 or publishing them in a new Bill (Bill 3).

View the entire paper [here].