Thursday, 18 October 2012

Parliament: Bill 120 / 2012: Civil Partnerships and Rights and Obligations of Cohabitants Act
18.10.12 [Malti / English] - [SECOND READING] 
[View the FIRST READING here.]

[PDF Version]

A Bill


AN ACT to provide for the regulation of cohabitation.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same as follows:-

Short title and commencement.
1. (1) The short title of this Act is the Civil Partnerships and Rights and Obligations of Cohabitants Act, 2012.

(2) This Act shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint and different dates may be so appointed for different purposes or provisions of this Act.

2. In this Act, unless the context otherwise requires:
"cohabitant" has the meaning as that assigned to it under article 3;
"court" means the appropriate section of the civil court established by regulations;
"dependent child" in relation to a cohabitant or a couple of cohabitants, means any child of whom both the cohabitants are the parents and who is: 

(a) under the age of 18 years; or 

(b) 18 years of age or over and is: 

(i) receiving full-time education or instruction and is under the age of 23 years, or
(ii) incapable of taking care of his own needs because of mental or physical disability;

"the Minister" means the Minister responsible for justice.

3. (1) For the purposes of this Act, a cohabitant 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 the relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period:

(a) of two years or more, in the case where they are the parents of one or more dependent children, and

(b) of five years or more, in any other case.

(2) In determining whether or not two adults are cohabitants, the court shall take into account all the circumstances of the relationship, and in particular shall have regard to the following:

(a) the duration of the relationship;

(b) the basis on which the couple live together;

(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;

(d) the degree and nature of any financial arrangements between the adults including any joint purchase of property or interest in land or joint acquisition of personal property;

(e) whether there are one or more dependent children;

(f) whether one of the adults cares for and supports the children of the other; and

(g) the degree to which the adults present themselves to others as a couple.

(3) For the purposes of this article, two adults are within a prohibited degree of relationship, if they are:

(a) an ascendant and a descendant in the direct line;

(b) a brother and a sister, whether of the full or half blood;

(c) persons related by affinity in the direct line; or

(d) the adopter and the adopted person or a descendant, or the husband or wife, of the adopted person.

(4) Notwithstanding the provisions of subarticle (1), an adult who would otherwise qualify as a cohabitant in terms of this Act shall not be deemed to be a cohabitant for purposes of this Act if:

(a) one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and

(b) at the time the relationship concerned ends, each adult who is or was married has not lived apart from his spouse for a period or periods of at least four years during the previous five years.

Civil partnership.
4. Cohabitants may choose to regulate their cohabitation by entering into a civil partnership in
terms of article 5.

Form of civil partnership.
5. (1) A civil partnership shall be constituted by a public deed and a civil partnership certificate shall be issued as prescribed in the Schedule to this Act.

(2) The constitutive document of the civil partnership may provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise.

(3) The constitutive document is valid only if the cohabitants:

(a) have each received independent legal advice before entering into it; or

(b) have received legal advice together and have waived in writing the right to independent legal advice.

(4) The constitutive document shall contain:

(a) the reciprocal common and individual obligations of the parties;
(b) in case of dependence, the amounts which are due to the dependant party, together with the modalities of payment;
(c) a description of the dwelling or dwellings where the cohabitation shall be established and the legal title by which such dwelling or dwellings shall be in the possession of the civil partnership; and

(d) in the case of common children, the manner in which and how they are to be maintained, brought up and educated:
Provided that the constitutive document may be varied so as to include common children born following the registration of the said partnership in order to provide for their maintenance, bringing up and education.

(5) Subject to the provisions of subarticle (6), a constitutive document may provide that neither cohabitant may apply for an order for redress referred to in article 7.

(6) The court may vary or set aside a constitutive document in exceptional circumstances when its enforceability would cause serious injustice.

Other agreements.
6. (1) The parties may agree in the constitutive document that:
(a) the children of one of the parties live with them in the dwelling or dwellings where the cohabitation is established;

(b) that a person who is declared dependant shall continue to receive from the other party, the same proceeds from the assets of the civil partnership which that party received prior to the termination thereof.

(2) When the parties have not included any of the above provisions in the original constitutive document, they may at any time thereafter agree to include or add these provisions and the constitutive document shall be amended and registered accordingly.

Redress for economically dependent cohabitant.
7. (1) A cohabitant may, subject to any agreement under article 5, apply to the court, notifying the other cohabitant, for an order under article 8 and, or article 9.

(2) If the cohabitant satisfies the court that he is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the end of the relationship, the court may, if it is so satisfied, make such an order.

(3) In determining whether or not an order will be made, the court shall have regard to:

(a) the financial circumstances, needs and obligations of each cohabitant existing as at the date of the application or which are likely to arise in the future;

(b) subject to subarticle (5), the rights and entitlements of any spouse or former spouse;

(c) the rights and entitlements of any dependant child or of any child of a previous relationship of either cohabitant;

(d) the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another;

(e) the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other;

(f) any contributions made by either of cohabitants in looking after the home;

(g) the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a cohabitant is impaired by reason of that cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home;

(h) any physical or mental disability of the cohabitants;


(i) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.

(4) The court may order that notice be given to any other person that it specifies and may hear the other person on the terms and in respect of the matters it thinks fit in the interests of justice before making an order referred to in this article.

(5) The court shall not make an order referred to in this article in favour of a cohabitant that would affect any right of any person to whom the other cohabitant is or was married or of any dependant children.

(6) The court may, on the application made by one of the cohabitants if it considers it proper to do so having regard to any change in the circumstances of the case and to any new evidence, including any variation by another order of the court made in favour of a person to whom the other cohabitant is or was married, by order vary any order under article 8.

Property adjustment orders.
8. (1) An order under this article may provide for one or more of the following matters:

(a) the transfer by either of the cohabitants to or for the benefit of the other or of a dependent child, of specified property in which the cohabitant has a title;

(b) the variation for the benefit of either of the cohabitants or of a dependent child of an agreement referred to in article 5.

(2) Before making an order under this article, the court shall have regard to whether in all the circumstances it would be practicable for the financial needs of the cohabitant to be met by an order made under article 9, having regard to all the circumstances, including the likelihood of a future change of circumstances of either of the cohabitants.

Orders for maintenance.
9. (1) The court may, on application by a cohabitant, during the lifetime of either of the cohabitants, make one or more of the following orders:

(a) an order that either of the cohabitants make to the other the periodical payments in the amounts, during the period and at the times that may be specified in the order;

(b) an order that either of the cohabitants secure to the other, to the satisfaction of the court, the periodical payments of the amounts, during the period and at the times that may be specified in the order;

(c) an order that either of the cohabitants make to the other a lump sum payment or lump sum payments of the amount or amounts and at the time or times that may be specified in the order.

(2) The court may order a cohabitant to pay a lump sum to the other cohabitant to meet any liabilities or expenses reasonably incurred by the former in maintaining himself before the making of an application by the other cohabitant for an order under subarticle (1).

(3) An order under this article for the payment of a lump sum may provide for the payment of the lump sum by instalments of the amounts that may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

(4) The period specified in an order under subarticle (1)(a) or (b) shall not commence before the date of the application for the order and shall end not later than the date of death of the first cohabitant.

(5) An order made under subarticle (1)(a) or (b) shall cease to have effect on the marriage of the cohabitant in whose favour the order was made.

(6) The court shall not make an order under this article in favour of a cohabitant who is married.

Cap. 12.(7) The provisions of article 381(2) of the Code of Organization and Civil Procedure shall, mutatis mutandis, apply in respect of any order for the payment of maintenance made under this article.

Third party rights.
10. In making any order under this Act, the court shall ensure that the rights of any other person with an interest in the matter in dispute, including a spouse or former spouse and any dependant children, are safeguarded.

Subordinate obligations.
11. Any obligation assumed by any one of the cohabitants shall be subordinate to the rights and entitlements of any spouse or former spouse and of any dependant child or of any child of a previous relationship of either cohabitant.

Cohabitant to be considered as tenant.
12. A cohabitant in a civil partnership shall be deemed to be a tenant for all intents and purposes of the law in respect of any lease of dwelling accommodation where the cohabitation is established, contracted by any one of the cohabitants after the coming into force of this Act.

13. (1) A civil partnership shall be terminated by the death of one of the cohabitants.

(2) The civil partnership shall also be terminated in the following cases:

(a) when the parties contract marriage between themselves;

(b) when the parties agree to terminate the civil partnership, by public deed;

(c) when one of the parties contracts marriage with a third party;

(d) when one of the parties files a judicial act on the other party informing that party of the termination of the civil partnership:

Provided that termination takes effect upon service of the judicial act.

Death of one of the cohabitants.
14. (1) In the event of the death of one of the cohabitants, the Court may make an order under articles 8 and 9 in respect of any dependant of the deceased.

(2) In making such an order, the Court shall consider the best interests of the dependant.

(3) Such order shall moreover provide for the maintenance, up bringing, education, welfare and the place of dwelling of the dependant.

Time for filing of actions.
15. Any action under this Act, other than an action under article 7(6), shall, be instituted within two years from the time when the relationship between the cohabitants ends, whether through death or otherwise.

16. The court shall only exercise its jurisdiction to hear and determine an application for an order for redress referred to in article 7 if both of the cohabitants concerned were ordinarily resident in Malta throughout the

one-year period prior to the end of their relationship, and either of the cohabitants:

(a) was domiciled in Malta on the date on which the application is filed, or

(b) was ordinarily resident in Malta for a period of one year immediately preceding the filing of the application.

Consequences of breakdown of cohabitation.
17. (1) Where the court, on the demand of one of the cohabitants, where the cohabitation is not registered by public deed in terms of article 5, finds that one of the cohabitants was responsible for causing the breakdown of the cohabitation without just cause or without appropriately providing for the situation of the other cohabitant, the latter shall have a right to seek redress from the former for damages suffered.

(2) Redress under this article shall be in the form of maintenance and shall not be in respect of a period in excess of three years.

Unregistered cohabitation. 
18. No action filed between persons who are or were at any time cohabitants shall be considered to be null or defective by reason of the ground of illegal or illicit cause.

19. An order for redress referred to in article 7 shall only be made if the application for it is made with respect to a relationship that ends, whether by death or otherwise, after the coming into force of this Act, but the time during which two persons lived as a couple before the said date, shall be included for the purposes of calculating whether the cohabitants are cohabitants within the meaning of this Act.

Cohabitants considered next of kin.
20. A cohabitant in a registered civil partnership shall be considered as the next of kin of the other cohabitant for the purposes of any acts of civil status.

Applicability. Cap. 481.
21. The provisions of the Domestic Violence Act shall mutatis mutandis apply sohowever that any reference in the said Act to "household member" shall be construed as a reference to a cohabitant within the meaning of this Act.

Applicability. Cap. 9.
22. The provisions of articles 633 and 635 of the Criminal Code shall mutatis mutandis apply to a cohabitant in a civil partnership.

Power to make regulations.
23. The Minister may make regulations to implement and to give better effect to the provisions of this Act and without prejudice to the generality of the foregoing may, by such regulations, prescribe anything that is to be or which may be prescribed and provide for any matter consequential, incidental to or connected with the provisions of this Act.

Objects and reasons

The objects of this Bill are to provide for the rights and obligations of cohabitants in both civil partnerships well as unregistered cohabitation and to provide for connected matters such as maintenance and dependency during cohabitation and after its termination.

Schedule 5 - Act of Civil Partnership. 
View the form and declaration by the parties in the PDF Version.

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