Friday, October 5, 2012 by Ann Marie Mangion
The Bill regulating cohabitation is a step forward, finally regulating a reality that legally can be considered as non-existent, to the detriment of the persons concerned. But will cohabitation be at par with marriage? Is the Bill giving marital status to a cohabiting couple?
The Bill caters for persons who share an intimate relationship, that is, siblings living together or a couple of friends living together are not classified as cohabitants.
Is that right? If we are going to equate cohabitation with something in line with civil unions, then, obviously, non-intimate relationships do not form part of the equation. But what if not? Since the rights and obligations stemming out of cohabitation are akin to the ones found in a marital obligation, it makes sense to restrict the Bill to intimate relationships only.
Marriage is the source of many legal rights and obligations and these are triggered as soon as marriage is contracted, that is, there is a definite day. Unlike marriage, in cohabitation this is not that clear.
An issue that might be the source of future problems is the date as to when cohabitation would have effectively started.
The Bill has left this issue completely absent from its considerations. This is one of many other aspects that make cohabitation different from marriage.
The Bill has relied on the goodwill of the parties concerned to enter into a cohabitation deed. Obviously, for a cohabitation deed to be drawn up, both parties must agree.
What happens if one of the parties, for his reasons, decides not to sign a cohabitation deed? And, what happens if later on this particular cohabitation collapses, as many do? How is one going to prove when cohabitation would have effectively started? One would need to produce evidence and witnesses to prove this.
Another crucial difference is the type of rights and obligations belonging to cohabiting couples. The cohabitation deed contemplated in the Bill is similar to a separation agreement without actually dividing whatnot and without marriage and it regulates the existent relationship or its aftermath and not solely its aftermath, as in a separation agreement. It is aimed to delineate the individual obligations of the parties. Are these obligations specific to the couple or should these be universal obligations?
In case of dependence, the cohabitation deed is to specify the amount of maintenance due and how it should be due. When a married couple is living happily together, they don’t normally analyse the amount they contribute to their living. Maintenance issues only crop up after the marriage breaks down. Should this be the same with a cohabiting couple?
Although there is entitlement for maintenance, the fact that they agree on an amount a priori could cause problems. When they are blissfully cohabiting, the couple would not analyse the amount they spend on their day-to-day living, so the amount entered into the deed would be futile.
The amount becomes of concern when cohabitation ends. If the amount originally entered in the deed is a ridiculous one, then the ‘victim’ might get the short end of the stick.
The dwelling place of the cohabiting couple must also be listed in the deed. This will be akin to the matrimonial home. What happens if the couple changes the dwelling place at a later stage after having signed the deed? Would they have to sign another deed?
However, this is an element which is the essence of cohabitation.
Unlike marriage, cohabitation is purely based on the fact that a couple is living together and nothing else. Therefore, the importance of the dwelling place within the deed arises as a result of the definition of cohabitation.
Obviously, the deed would have value and be of use if the relationship breaks down. But what if the agreement is found to be ridiculous? In this case, the court may rightfully do away with it.
Therefore, should a couple planning to cohabit have a straightforward registration? Would such registration equate cohabitation with marriage?
How would cohabitation be deemed to have ended? Not taking into account death or a subsequent marriage, cohabitation can be ended by another public deed or by the filing of a judicial act against the other ex-cohabitant.
The clauses provided in the Bill for termination are appropriate because that is when the issues of maintenance and so on need to be regulated through a public deed or through a court decision.
Article 18 of the Bill states: “A cohabitant in a registered civil cohabitation partnership may be considered as the next of kin of the other cohabitant for the purposes of any acts of civil status.”
Does this also apply for the presumption of the father in the case of a child born out of the cohabiting partnership?
If a couple is cohabiting, is there a presumption that the cohabiting man is the father? Apparently, the Bill does not say so and this is to the detriment of the children.
The Bill is a step forward to regulate the unregulated, even though it leaves out crucial legal elements pertaining to married couples. Was this done to delineate the divergences between the two unions?
Dr Mangion is a lawyer and a published author with a special interest in family and child law.