Wednesday, 26 December 2012

Times: Rights and wrongs in cohabitation Bill
Monday, December 17, 2012 by Joanne Vella Cuschieri

Cohabitation and LGBT rights have been a topic of intense discussion after the Government, following pressure by other political parties and organisations, submitted a draft law to be discussed in Parliament.
This law creates further discrimination between citizens simply based on their sexual orientation
- Joanne Vella Cuschieri
Lately, I was invited to discuss the subject on a TV programme. As soon as I noted this on Facebook, I was asked what link I had with these subjects; whether I was part of the LGBT community and what contribution I could give if I were not. I was outraged at such questions.
Cohabitation rights do not only concern persons from the LGBT community but also heterosexual couples who, for some reason or other, never got married, perhaps not out of choice. Being a practising lawyer within the Family Court I daily encounter persons who are not married but have problems with their partners. So far, the law provides for a dispute resolution system only in those cases where the children’s rights are involved. Otherwise, the law completely omits any rights or duties pertaining to these people during or after the termination of their cohabitation.
The need for a law catering for property and maintenance rights, succession, next-of-kin rights, compensation for contribution in the relationship, permanent residence for third country nationals whose partner is Maltese and other ancillary rights has long been felt.
In truth, the law has little to do with granting equal rights to the LGBT community. It is wrong to associate cohabitation rights with LGBT rights because this does not do justice to non-LGBT persons who need to resort to this law for protection and neither does a cohabitation law cater for the equality sought by the LGBT community.
Having said that, I don’t blame those citizens who have been drawn into the mistake of thinking this Bill only concerns the LGBT community because it was the Government that proposed a single law intended to cover both cohabitation and LGBT rights. The question therefore arises: was this wise? It could be that the Government, fearing repercussions from its constituents, thought it could do away with trying to please opposing movements within those same supporters. However, the result is definitely a far cry from what was needed to be covered both from the perspective of cohabitating couples and also from the perspective of the LGBT movement, which, throughout the years, has been insisting on a law that gives equal rights to LGBT couples as those existing for married heterosexual couples. From my point of view, the present draft fails painfully in various instances. For example, as far as cohabitation is concerned it makes a distinction between couples with children and those childless. Couples with children are recognised as having the status of cohabitation after two years while those who do not are only given cohabitation rights after five years.
The reason or the legal justification behind this discrimination escapes me. The existence of children can surely be used as a criteria to decide whether or not there was cohabitation, however, it should not be used to exclude outright cohabitation rights after two years to those couples who do not have children.
Also, although cohabitation rights should be aimed to apply both to heterosexual and LGBT couples, it automatically excludes the possibility of LGBT couples to be given cohabitation rights after two years since such couples cannot be expected to satisfy the criteria relating to having children. Therefore, they are automatically excluded unless five years pass. Again, this is a source of discrimination.
With regard to the proposed possibility of entering by means of a contract into a civil partnership, while the possibility of having such a contract does not give any new rights at law to any couple, it does not grant those long sought equality rights to the LGBT community.
In simple words, the LGBT community wants the same rights related to marriage enjoyed by heterosexuals. However, this law requires parties entering into the proposed civil partnership contract to have taken independent legal advice prior to signing the contract or, otherwise, jointly waive the criteria for this independent advise.
Among others, it requires them to give details on maintenance and upbringing of children during their relationship and it gives the right to terminate this partnership by simply filing a judicial act in court.
None of these requisites are demanded from a heterosexual couple when getting married. Therefore, the conclusion is that, instead of promoting equality, this law creates further discrimination between citizens simply based on their sexual orientation.
To top it all up, this law does not cater for the recognition of civil unions undertaken outside Malta, thus making it possible for those who are party in a civil union to get legally married without any questions asked. The existence of a civil partnership does not stop a party to that same partnership from legally getting married.
One only hopes that once this law starts to be discussed in Parliament, the Government comes to its senses and introduce the necessary amendments.
One finds it difficult to understand why the Government is still finding it difficult to think on the lines of equal rights for everyone. Why not a civil union granting the same rights as those applicable to married couples.
After all, what’s in a name?
Joanne Vella Cuschieri is a lawyer and a Labour candidate for the general election.

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