COHABITATION ACT *

COHABITATION

CHAPTER 571

COHABITATION ACT *

AN ACT to regulate cohabitations and to provide for other matters dealing

with them or ancillary to them.

21st April, 2017 †

ACT XV of 2017. As Amended by Act XIII of 2018.

The short title of this Act is the Cohabitation Act.

(1) In this Act, unless the context otherwise requires

"basic rights and duties" means those rights and duties listed

under article 30;

"cohabitant" means a person who is continually and habitually

living with another person in an ordinary, primary, common home,

with whom he has an intimate relationship, and together consider

themselves a couple, and is not already legally bound to another

person

Provided that for the purposes of de facto cohabitation, a

person who, altho ugh bein g in a m arriage o r civil union is

separated de jure shall also be considered as a cohabitant;

"Cohabitations Register" in relation to cohabitations that are

registered in the island of Malta means that section within the

O ff i c e o f t h e P u b li c R e g i s t r a r i n t h e s a m e i s l a n d o f M a l t a

responsible for affairs relating to cohabitations, and in relation to

contracts of cohabitation done in the island of Gozo means that

section within the Office of Public Registrar in the same island of

Gozo entrusted to do that as previously stated;

*Repealed by Act XXVII of 2020.

†See Legal Notice 130 of 2017.

COHABITATION

"Court" means the Civil Court (Family Section) or any other

Court which from time to time shall be given the duty to take

cognition of family matters;

"de facto cohabitation" means a cohabitation between two

persons which cohabitation is not registered nor is it unilaterally

declared under this Act and also includes persons who, although

being in a marriage or civil union, are separated de jure;

"dependent child" in relation to a cohabitant or a cohabiting

couple, means any child of the cohabitants or any one of the

cohabitants, or any child upon whom they are acting as loco

parentis in accordance with the Civil Code and still have the right to

receive maintenance from them in accordance to the same Code;

"Minister" means, unless otherwise indicated, the Minister

responsible for justice;

"notary" means a public official vested with all the powers

conferred to him by the Notarial Profession and the Notarial Archives

Act;

"ordinary, primary, common home" means that home within

which the cohabitants live together, belonging to either one of the

cohabitants or to both of them in whichever portion, or possessed

by title of lease or any other title, either together or by one of the

cohabitants;

"registered" means enrolled in the Public Registry;

"registrar" means that public official identified by the Minister to

fulfil the functions of the Registrar for Cohabitations for the

Register of Cohabitations, and includes, for all purposes of this

Act, any person authorised by the Registrar for this.

(2) All the provisions of this Act shall apply only for those

cohabitations which are set up in accordance with the provisions of

t hi s Act an d f or n o oth er form of coh abi tat io n f or w hi ch a

declaration or contract has been registered and is not in accordance

with the provisions of this Act.

Part II

De facto Cohabitation

A de facto cohabitation does not give rise to mutual legal

rights and obligations between cohabitants, and for all intents and

purposes of the law, does not confer legal recognition to the

relationship between the couple, except after two years and limited

to the following

(a) a cohabitant shall be considered as a tenant for all

intents and purposes of the law with regard to all rents

of the ordinary, primary, common home that were

legally constituted by any one of the cohabitants,

irrespective of the date of constitution of the rent, and

also with regard to any commercial rent under the Civil

COHABITATION

Code, until the said contract is terminated

Provided that the owner of the ordinary, primary,

common home retains the right to refuse to renew the

aforementioned contract constituted by any one of the

cohabitants once that contract expires unless, in the case

of a contract that is automatically extended the owner has

sent an official letter giving prior notice that the said

contract is not going to be extended;

(b) a cohabitant shall be considered as the closest person

to the other cohabitant for all intents and purposes of

the law;

(c) a cohabitant shall have the right to take decisions

relating to the medical care of the other cohabitant

Provided that this sub-article shall not apply when any one

of the cohabitants has declared, in writing, that such

decisions should be taken by another person.

Part III

Cohabitation by means of a contract between the parties

Persons who have the intent of cohabitating and, or, persons

who are already cohabiting may choose to regulate their

cohabitation by entering into a contract in conformity with the

provisions of this Act, which contract shall be registered by the

notary as provided hereunder in this Act.

(1) A contract of cohabitation concluded between

(a) persons, one of whom is under the age of assuming

contractual obligations, unless that person is so

authorised at law;

(b) ascendants and descendants in the direct line;

(c) siblings, from the same parents, or from one and the

same single parent;

(d) persons being related by affinity in the direct line;

(e) the person adopting and the adoptee;

(f)

persons, one of whom is unable to give his consent for

the contract due to interdiction, incapacitation or the

lack of the use of reason;

(g) persons who are married or are in a civil union

relationship, either between themselves or with third

parties;

(h) persons who are in a contract of cohabitation with

third parties according to the provisions of this Act;

(i)

persons who are in a cohabitation with third parties,

one of whom has declared the relationship as such by a

unilateral declaration in accordance with this Act;

(j)

cohabitants whose intimate relationship between

themselves or with third parties is regulated by a

foreign law that provides for rights and obligations

between themselves, irrespective of its title as long as

COHABITATION

such relationship is regulated in a way that has or may

have legal effects in Malta,

shall be null and void.

(2) For the purposes of sub-article (1), the relationship of an

adopted person shall be considered to exist both in reference to that

person’s biological family as well as his adoptive family.

(3) The Court of Voluntary Jurisdiction under which one of the

parties intending to enter into a contract of cohabitation falls may,

if good cause is shown, refrain from applying the provisions of

article 5(1)(d).

(1) The contract regulating the cohabitation between two

parties shall be made by a public deed for which a certificate of

cohabitation shall be issued as prescribed by the Schedule of this

Act, after the registration of the contract.

(2) In order for a contract regulating cohabitation between two

parties to have the legal effects contemplated by this Act, it shall be

done as prescribed by the provisions of this Act and shall be

deemed to be valid only if all the provisions of this Act are

observed and, or fulfilled.

(3) The parties must declare before the notary that there is

nothing precluding them from entering into a legally valid contract

of cohabitation, taking into account that which is prescribed under

article 5, and the notary is obliged to do the annotations of this

declaration in the said contract.

(4) The declaration mentioned in the preceding sub-article shall

make good in the instances where the notary does not have the

means to verify that there is nothing precluding the parties from

being cohabitants, taking into account that which is prescribed in

article 5.

(5) The parties shall also declare before the notary if they had

already entered into any other contract of cohabitation together in

the past, which contract was rescinded in accordance with this Act.

(6) After verifying by the appropriate searches whether the

parties had entered into a contractual cohabitation between

themselves, which contract had been terminated in accordance with

the provisions of this Act, the notary shall

(a) if there were no previous contracts, state this in the

said contract; or

(b) if there was a previous contract, forward a copy

thereof, together with the draft of the new contract to

the competent Court for the authorisation of the same,

in accordance with article 16, and shall forward the

new contract for publication and registration only after

obtaining the said authorisation.

COHABITATION

(7) For the purposes of this article, the notary shall ensure that

the official Public Registry search be updated officially up to not

more than twenty-one days prior to the date of publication of the

contract of cohabitation, unless he chooses to update it through an

online search, in which case he shall update the search up to not

more than seven days prior to the date of publication of the said

contract.

(1) The registration of a contract regulating cohabitation

between two parties is essential for the validity of the said contract

with regard to the rights and duties of third parties.

(2) The registration of a contract governing cohabitation

between two parties cannot operate to validate a contract of

cohabitation which independently of that registration is null.

In the contract governing cohabitation, the parties, amongst

other things, shall agree on and indicate the following

(a) (i) the house that shall be deemed to be the ordinary,

primary, common home of the cohabitants;

(ii) the legal title of each cohabitant on the said home;

(iii) the transfer of the rights in rem on the said house

which shall take place between the cohabitants in the

event of separation, if appropriate;

(iv) the personal rights of each of the cohabitants, or

whichever one of them, on the tenement, in the event

of separation, if appropriate;

(b) the division of assets and liabilities, both held in

common or belonging to one or the other cohabitant

when the cohabitants wish to make a transfer of assets

or liabilities by one part to the other, in the event of

separation;

(c) maintenance, periodic or as a lump sum if one of the

cohabitants is or becomes dependent on the other

cohabitant, together with the term and the modality of

payment, both for during the period of cohabitation

and in the event of separation, provided that the

cohabitants are free to indicate that such maintenance

is not due under all circumstances or in certain

circumstances;

(d) (i) the annual percentage mark up on the said

maintenance, when and if it is due, or an indication

as to how the mark up should be done for the

amount to remain relevant without the need to

make periodic changes in the contract, provided

that if no mention is made as to the method of

increment, such increase shall be taken to be in line

with the Cost of Living Index;

(ii) where the mark-up is on a fixed periodic basis, this

COHABITATION

shall begin to be measured from the first

anniversary of the registration of the contract,

regardless of whether or not it falls due during that

period;

(iii)

where it is indicated that the increase shall be

proportional to the salary of the cohabitant from

whom maintenance is due, there shall be a clear

indication in the contract of the amount that the

said cohabitant has in salary at the time of the

contract. If there is no other indication, the salary

in question shall be deemed to be the net

revenue;

(e) the right of the children of one of the cohabitants to

live in the house considered as the ordinary, primary,

common home of the cohabitants, if appropriate and

unless otherwise ordered by the competent Court in

previous proceedings;

(f)

where there are children, which cohabitant will have

the care and custody of any dependent children in the

event of separation, unless otherwise ordered by the

competent Court in previous proceedings;

(g) (i) a minimum amount of maintenance which a

cohabitant shall provide to the other cohabitant for

dependent children, together with the modality of

payment, unless otherwise ordered by the

competent Court at the request of either party, after

having taken into consideration all the

circumstances of the parties under the Civil Code

Provided that there shall be a clear indication that

this article shall enter into force without the need

for any legal proceedings immediately when the

cohabitants are separated or no longer cohabiting

together, whichever occurs first, as appropriate;

(ii) the parties are not free to indicate that there shall be

no maintenance owed to children, and any clause to

this effect is considered null and void.

(h) article 30 shall apply automatically between the

cohabitants if no reference is made to the provisions of

basic rights and duties as listed in the same article in

the event of separation between the parties.

(1) If a maintenance claim for dependent children is

contested by one of the cohabitants in accordance with article 8(g),

the competent Court shall not take the amount indicated by the

cohabitants as maintenance in the contract governing the

cohabitation between the parties as fixed, provided that this amount

is intended to be a minimum amount and not necessarily an

appropriate one.

COHABITATION

(2) The Court shall not fix maintenance in an amount that is less

than the amount which the contracting parties indicated as the

m i n i m u m a m o u n t t h a t s h a l l b e g r a nt e d a s m a i n t e n a n c e f o r

dependent children

Provided that where the Court finds that the cohabitant

which is obliged to pay the said maintenance has lost his

employment without fault, the Court may consider fixing

m a in t e n a nc e in a n a m o un t w hi c h is l ow e r t h a n t he a m ou nt

indicated by the cohabitants as the minimum amount that shall be

given as maintenance for any dependent children in the contract, as

well as indicating that the full amount of maintenance shall be

immediately due as soon as the cohabitant which is obliged to pay

the said maintenance finds employment.

(1) The notary before whom the parties are to sign the

contract of cohabitation is obliged to explain in detail to the parties

the consequences of the said contract and the clauses selected by

the parties to be bound thereby.

(2) In the contract of cohabitation, the parties shall state that the

notary has duly explained in detail the consequences of that

contract and of the clauses selected by the parties to be bound

thereby and they have understood their obligations and rights

arising therefrom.

The cohabitants wishing to amend the contract of

cohabitation registered according to this Act, may do so only

(a) by means of a deed of correction registered by a notary

without the requirement of any authorisation of the

competent Court, if such act is intended to update any

information about property, including the address of

the ordinary, primary, common home, or to add clauses

relating to children born after the registration of the

original act; or

(b) in any other instance, by means of a deed of correction

registered by a notary after the parties have jointly

obtained the authorisation of the competent Court,

which Court shall ensure that there is nothing in the

amendments that runs contrary to the best interest of

the dependent children or that puts one cohabitant in a

vulnerable situation.

In every instance where the Court is requested to give its

authorisation for a deed of correction it shall, if it feels that it is

appropriate to ensure that this deed is not done with abuse of a

cohabitant on the other, hear the parties viva voce.

Where the cohabitants change the house considered to be the

ordinary, primary, common home according to their contract of

cohabitation without amending the said contract as prescribed in

article 11(a), the provisions which they had stipulated in the

contract of cohabitation with regard to the ordinary, primary,

common home according to article 8(a) shall apply to the new

ordinary, primary, common home in the same manner.

COHABITATION

A cohabitant registered under this Act shall benefit from the

rights listed in the subsequent article and from further rights

referred to directly in the law as applicable to registered

cohabitants under this Act.

The rights conferred to the cohabitant registered under this

Act are the following, namely that the cohabitant

(a) shall be considered as a tenant for all intents and

purposes of the law with regard to any lease of the

ordinary, primary, common home legally constituted

by any one of the cohabitants, irrespective of the date

of the constitution of the lease, as well as with regard

to any commercial lease under the Civil Code

Provided that the owner of the ordinary, primary,

common home retains the right to refuse to renew the

aforementioned contract constituted by any one of the

cohabitants once that contract expires unless, in the case

of a contract that is automatically extended the owner has

sent an official letter giving prior notice that the said

contract is not going to be extended;

(b) shall be considered as a tenant in respect of farmers’

rights and, or obligations and therefore as included in

the definition of ‘lessee’ under article 2 of the

Agricultural Leases (Reletting) Act;

(c) shall be regarded as ‘family member’ for the

enjoyment of all rights related to renewal of lease of

land under the Agricultural Leases (Reletting) Act;

(d) shall be regarded as having the same rights granted to

a person who is married or in a civil union in terms of

rights related to labour and family, including various

rights related to leave, as well as those rights found in

primary and subsidiary laws as well as under codes

and working practices, excluding however the right of

leave to accompany one’s spouse to courses sponsored

by the government abroad;

(e) shall be considered as the closest person to the

cohabitant for all intents and purposes of the law;

(f)

shall have the right to take decisions relating to the

medical care of the other cohabitant

Provided that this sub-article shall not apply when any one

of the cohabitants has declared, in writing, that such

decisions should be taken by another person;

(g) shall have, in the event that one of the cohabitants dies

intestate during the cohabitation, and the survivor is

entitled for maintenance in the course of separation as

agreed in the contract of cohabitation, the right to

receive the amount equivalent to eighty percent of five

years’ maintenance as stipulated in the contract of

cohabitation in a lump sum as a legitimate portion,

unless the contract of cohabitation does not expressly

COHABITATION

provide that this clause shall not apply

Provided that this amount shall not exceed one quarter

of the value of the estate when there are descendants,

or one third of the value of the estate when there are no

children

Provided further that any action under this article shall

be brought forward by not later than twelve months

from the opening of succession as registered according

to this Act, and such action may only be brought by the

surviving cohabitant;

(h) without prejudice to the provisions of the Civil Code,

shall have, in the event of death of one of the

cohabitants during the cohabitation, the right of

habitation vita durante in the ordinary, primary,

common home held jointly with the deceased

Provided that this right of habitation shall cease if the

survivor contracts a marriage, civil union or enters into

cohabitation with another person.

(i)

shall have the right to be entitled to non-contributory

social assistance when the cohabitant is a person who

in the opinion of the director of social services is

living with the head of the family as a spouse in

marriage under article 30 of the Social Security Act;

(j)

shall have the right to have an invalidity pension paid

to the cohabitant if the said cohabitant is maintaining

the other cohabitant under article 26 of the Social

Security Act;

(k) shall have the right to a widow’s pension under articles

31 to 43 (both inclusive) of the Social Security Act;

(l)

shall have the right, upon the death of the other

cohabitant, to apply for a retirement pension if he is a

person who is or was entitled to be maintained by the

deceased under article 46 of the Social Security Act;

(m)

shall have the right to payment of an age pension

when both cohabitants qualify under article 66 of the

Social Security Act;

(n) shall have the right to receive social benefits as a

foster carer in accordance with article 76A of the

Social Security Act;

(o) shall have the right to sickness assistance when the

cohabitant is living with the head of the family during

a period when such sickness assistance is being, or

could be paid;

(p) shall have the right to unemployment benefit and to

special unemployment benefit if the cohabitant is

maintaining the other cohabitant in accordance with

article 30 of the Social Security Act;

(q) shall have the right to maternity benefit and maternity

leave benefit in accordance with articles 71 and 72 of

the Social Security Act;

COHABITATION

(r) shall have the right to the supplementary allowance

under article 73 of the Social Security Act;

(s) shall have the right to children’s allowance under

articles 76, 80, 81 and 82 of the Social Security Act;

(t)

shall have the right to allowance in respect of children

in care under articles 76A, 80, 81 and 82 of the Social

Security Act;

(u) shall have the right to an allowance for disabled

children under articles 77, 80, 81 and 82 of the Social

Security Act.

(1) A contract of cohabitation is terminated

(a) when one of the cohabitants dies;

(b) when the cohabitants agree to terminate the said

contract by means of a public deed registered by the

notary;

(c) when the cohabitants cease to cohabit together, one of the

parties lodges an application declaring, under oath, the date from

which the parties ceased to cohabit together, requesting that the

Court declare the contract of cohabitation to be terminated, and

requests the Court to order that the rights and obligations arising

from the same contract of cohabitation enter into force.

(2) The Court shall, in its decree, order the Registrar of the

C ou r ts t o no t if y t he D ir e c to r o f t h e P u b li c Re g i s tr y o f t he

termination of the contract of cohabitation in order for such

termination to be registered in the Public Registry within fifteen

working days.

(1) Upon termination of the contract of cohabitation by the

means referred to in article 16, the parties shall have the right to

enforce all their rights and be bound by all the obligations

contained in the contract of cohabitation.

(2) Any respective rights and, or obligations in the contract of

cohabitation which are triggered by the separation of the

cohabitants or as soon as the parties are no longer cohabiting shall

come into effect immediately upon such separation or end of

cohabitation, and not only upon the termination of the contract of

cohabitation in accordance with article 16

Provided that no action presented between persons who are,

or were at any time cohabitants shall be considered null or vitiated

due to illegal or unlawful considerations.

Every action made under articles 16 and 17 shall be made

within the peremptory period of two years from when the parties

terminate the contract of cohabitation or from when the parties are

no longer cohabiting together, whichever occurs last, except for

those actions relating to children, which actions are not limited by

time.

(1) If the cohabitants terminate the contract of cohabitation

in accordance with article 16(b) while they are still cohabiting, and

COHABITATION

subsequently they wish to enter into another contract of

cohabitation together, this contract may not be published and

registered without the authorisation of the competent Court, which

Court shall ensure that nothing in this contract goes against the best

interest of the dependent children, if appropriate, or places any one

of the parties in a vulnerable situation when compared to the

contract which has been terminated by the cohabitants.

(2) In every instance where the Court is requested to give its

authorisation to the publication and registration of a contract of

cohabitation in accordance with the preceding sub-article it shall, if

it feels that it is appropriate to ensure that this contract is not being

done with abuse of a party over the other party, hear the parties viva

voce.

Part IV

Cohabitation by means of a unilateral declaration

A cohabitant who wishes to acquire the basic rights and

duties listed in article 30 in relation to the cohabitant with whom he

has been cohabiting for a period of at least two years, which

cohabitant is refusing to enter into a contract governing the

c oh a b it a t io n b e tw e e n th e m u n de r th is A c t, m a y d o s o b y a

unilateral declaration by judicial letter in accordance with this Act

Provided that such unilateral declaration shall not terminate

the rights which the cohabitants already enjoy as a result of their de

facto cohabitation.

(1) For the unilateral declaration by means of the judicial

letter mentioned in the previous article to create rights and

obligations which are legally valid and enforceable under this Act,

it must indicate, clearly and unequivocally, the following

(a) the personal details of the cohabitants, including their

identity card number;

(b) the address where the cohabitants are residing

together;

(c) a declaration to the effect that there is nothing

precluding the said cohabitants from entering into a

legally valid contract of cohabitation taking into

account that which is set forward in article 5;

(d) the date from which the parties may have been referred

to as cohabitants under this Act, and that from that

date onwards none of the conditions set forward in

article 5 were in place; and

(e) a clear declaration, on pain of nullity, on the grounds

upon which the judicial act is made.

(2) The content of the said judicial letter shall be confirmed on

oath by the applicant before the Registrar of the Court or a legal

pr o c u r a t or ap po i nt e d as C o m m is s io n e r fo r oat h s un d e r t h e

Commissioners for Oaths Ordinance, and shall be notified to the

other party, provided that the provisions of sub-articles (3), (5) or

(6) of article 187 of the Code of Organization and Civil Procedure

COHABITATION

may not be used to effect the service of the said judicial letter.

(3) The judicial letter must also contain, on pain of nullity, a

formal notice to the respondent that if he does not reply within

sixty days from when he is served with the said judicial letter by

presenting a note in the acts of that judicial letter in accordance

with the subsequent article, he shall automatically be bound to the

basic rights and duties under this Act with the other party, and in

absence of proof to the contrary, the judicial letter shall constitute

the necessary proof that the cohabitation between the parties

commenced on the date indicated by the applicant.

By means of a note presented in the acts of the said judicial

letter, the respondent may, within sixty days from the date of

notification

(a) reject the claim on the ground that the parties are not

truly cohabiting as required by this Act;

(b) oppose the date from which such cohabitation should

be presumed to be in conformity with this Act, in

which case the basic rights and duties referred to in

this Act shall be deemed to have come into effect from

the date mentioned by the respondent, save for the

right of the applicant to provide evidence by sworn

application that the date was indeed the one referred to

in the judicial letter

Provided that where the cohabitation between the

parties did not comply with article 21(1)(d) on the date

referred to in the unilateral declaration, the date of

commencement of cohabitation shall, for all purposes

of the law, be considered to be the date from which the

cohabitation could have been registered under the

same article 21(1)(d), even where the respondent made

no objection to that point during the stipulated time;

(c) present a contract of cohabitation drawn up and

registered under this Act, in which case the judicial

letter will be considered null and void.

The judicial letter referred to in articles 20 and 21, as well as

the respondent’s note referred to in article 22 shall, on pain of

nullity, be notified to the Registrar by the party which presented the

judicial letter and, or the note, as appropriate.

(1) The rights and duties acquired under the provisions of

article 20, provided that there was no opposition on the part of the

respondent, shall be rescinded and declared null and without effect

if a request by an application is lodged before the Civil Court

(Family Section) or the Court of Magistrates (Gozo) (Family

Section) (Superior Jurisdiction), as appropriate, by the respondent

within twenty days from the first notification served unto him of

any executive warrant, any other judicial act or any criminal case

based on those rights and duties, and the Court is satisfied

(a) that the respondent did not have knowledge of the

judicial letter because he was not duly notified; or

(b) that the judicial letter did not contain the requirements

COHABITATION

set out in article 21

Provided that this application shall be appointed for

hearing within two weeks.

(2) In the event of a criminal case based on the duties of a party

arising from this Act with which the competent Court has yet to

decide whether the same duties obtained under article 20 should be

rescinded and declared null and void, the Court of Magistrates as a

Court of Criminal Judicature shall defer the case for another date.

(3) Without prejudice to article 25, no objection, except that

which is specifically prescribed in this article, shall prevent the

issue or execution of any executive act or be regarded as a valid

reason at law not to honour the duties of the respondent under this

Act or r eason for th e establis hment or deferral of crimin al

proceedings arising from a dereliction of duties pursuant to this

Act.-Registration of the judicial letter.

(1) A judicial letter issued in accordance with the

provisions of this Act may not be used to enforce the rights and

duties referred to in the same act unless it has been registered in

accordance with the provisions of this article, which should apply

for the registration of those judicial letters as instruments which

create rights and obligations that are legally valid and enforceable.

(2) The applicant for the registration of the judicial letter shall

submit an authentic copy of the judicial letter to the Registrar,

including proof of service and a copy of every reply received

thereto, if any.

(3) Once the documents referred to in sub-article (2) are

received, the Registrar shall examine the documents submitted,

check whether the respondent has lodged a note in accordance with

article 22 within the established time limit and if he is satisfied that

the conditions for the registration of the judicial letter as conferring

rights and duties which are legally valid and enforceable subsist, he

shall proceed to register the documents presented in the Register of

Cohabitation.

A judicial letter issued in accordance with the articles of this

Act may not be used to enforce the rights and duties referred to in

this Act once a contract governing the cohabitation of the said

parties according to this Act is registered.

A unilateral declaration of cohabitation has legal effects

only with regard to the parties.

A unilateral declaration of cohabitation under this Act can

only be registered until five years from the entry into force of this

Act.

Without prejudice to the preceding article, the rights and

duties of cohabitants in a cohabitation regulated by a unilateral

declaration in accordance with the provisions of this Act, as well as

the same cohabitation, remain valid and enforceable.

COHABITATION

Part V

Basic Rights and Duties

(1) The basic rights and duties referred to in this Act are as

follows

(a) the right to certain movables found in the ordinary,

primary, common home of the parties under article 31;

(b) the right to financial aid under article 32;

(c) the right of the cohabitant to continue to reside in the

ordinary, primary, common home for a reasonable

period of time after the separation under article 33;

(d) the duty to pay for utilities under article 34;

(e) the right of the surviving cohabitant to reside in the

ordinary, primary, common residence of the parties

under article 35.

(2) The rights and duties listed in the preceding sub-article shall

apply automatically in the case of cohabitation by means of a

contract between the parties, as well as in the case of cohabitation

by means of a unilateral declaration.

There shall be a iuris tantum presumption that cohabitants

are entitled to an equal portion of the movables found in the

ordinary, primary, common home which were acquired during the

period of cohabitation established under the registered contract of

cohabitation or under the proviso of article 21(b), as appropriate,

unless those movables were not given to either one of the

cohabitants by a donation, personal gift or were devolved upon

them by succession from third parties

Provided that in this article, ‘movables’ shall include the

ornamental and decorative movables kept at the ordinary, primary,

com mo n ho me of th e cohabit an ts or su ch hou se w hich w as

considered the ordinary, primary, common home of the cohabitants

for some time, and shall exclude moneys, securities, vehicles and

domestic animals.

(1) Where the cohabitants have a dependent child or

children who are young or disabled, both during the period of

cohabitation and in the event of separation, the party who is taking

care of the upbringing of the said child or children and because of

their age or disability, is financially dependent on the other party,

shall have the right to ask for financial assistance from the other

party to make good for the economic disadvantage.

(2) The financial aid referred to in this article may be periodic

or lump sum and the Court, before reaching its decision, shall

consider, among others, the following circumstances

(a) the financial circumstances, requirements and

obligations of each cohabitant at the date of the

request;

(b) the rights and benefits that the cohabitant is legally

bound with to a person with whom he had previously

COHABITATION

contracted marriage or civil union in a previous

period, so however that the rights of that person shall

remain unaffected;

(c) the rights and benefits of each dependent child or of

any child from a previous relationship of each

cohabitant so however that the rights of the said

children shall remain unaffected;

(d) every contribution made by any one of the cohabitants

to look after the ordinary, primary, common home and,

or the said children;

(e) the effect on the earning capacity of each cohabitant as

a consequence of the responsibilities that they have or

had during the period within which the parties have

lived as a cohabiting couple, and the degree to which

the capacity of future earnings of the parties was

reduced because the cohabitant has relinquished or lost

the opportunity of gainful activity in order to take care

of the ordinary, primary, common home and, or the

children;

(f)

any physical or mental incapacity of the cohabitants;

and

(g) the conduct of each cohabitant if the conduct is such

that in the opinion of the Court, it would be unfair if it

is not taken into account.

(3) Before reaching its decision, the Court may order to give

notice to any other person or persons whom it specifies and may

hear the person or persons on such terms and in relation to those

matters which it deems appropriate in the interests of justice.

(4) The said financial aid in this article cannot be requested for a

period preceding the time when the request is being made.

(5) Without prejudice to the preceding sub-articles, if a

cohabitant who has no dependent young or disabled children, both

during the period of cohabitation as well in the case of separation,

and is financially dependent on the other party and his financial

dependency is a result of the relationship or the end of such

relationship with the other cohabitant, that party has the right to

request financial aid from the other party.

(6) Before determining whether to grant or reject the request

mentioned in the previous sub-article, the Court shall consider

(a) the circumstances referred to in article 32(2);

(b) the duration of the relationship between the parties;

(c) the basis on which the parties have entered that

relationship;

(d) the degree of commitment of the parties to each other;

(e) the age of the parties; and

(f)

the capacity of the requesting party to find gainful

COHABITATION

employment.

(7) The Court may, if it feels it should grant the request, do so

for a limited period of time or decide to grant such request until the

existence of particular circumstance or circumstances subsist.

(8) The Court shall not grant the demand if it believes that the

granting of financial aid to one of the parties would constitute an

injustice to the other party.

(9) If the Court, upon a request made by one of the cohabitants,

having regard to any change in the circumstances of the case and to

any new evidence, including some variation by another order of the

Court made in favour of any person with whom the cohabitant was

married or in a civil union with, or evidence that the party receiving

the financial aid has adequate income may, if it considers it

appropriate, by order vary any other order made under this article.

(10) The rights arising from this article are terminated, without

the need to request such termination, as soon as the party receiving

the financial aid contracts a marriage or civil union, as well as if

such party is cohabiting, even if only in de facto form, with another

person.

(1) In case of separation between the cohabitants, each

cohabitant has the right to continue to reside in the ordinary,

primary, common home for a period which the Court considers

reasonable under the circumstances

Provided that in the case where the cohabitants live in the

said ordinary, primary, common home by means of a legally

constituted lease, such right shall apply only until the owner does not

extend a contract that is automatically extended, and the owner has sent

an official letter to the cohabitants giving prior notice that the said

contract is not going to be extended.

(2) The period referred to in the previous sub-article shall be

interpreted limitedly to allow the cohabitant who does not enjoy

real rights on the said ordinary, primary, common home to find

suitable alternative accommodation.

In case of separation between the cohabitants, when there is

no decree of a competent Court or written agreement between the

coh ab itants stati ng ot herwise, there sh ould be a rebu ttable

presumption that cohabitants have the duty to pay for all utilities

related to the ordinary, primary, common home in which they reside

in equal shares among themselves for the period they resided in it,

irrespective of whether the accounts of the utilities are addressed to

one cohabitant only.

(1) In the case of death of one of the cohabitants, the

survivor shall be entitled to the right of habitation over the

ordinary, primary, common home of the cohabitants for a period of

years equivalent to the number of years that they had been

cohabiting

COHABITATION

Provided that this number of years cannot exceed fifteen

years.

(2) The survivor is entitled to the said right vita durante or until

he enters into another contract of cohabitation, marriage or civil

union.

During a unilaterally declared cohabitation, the cohabitant,

or at the end of such cohabitation, a person who was cohabiting

with another person and has the basic rights and duties emanating

from this Act, may obtain the said rights and enforce the said duties

upon request by means of an application in the Civil Court (Family

Section) or the Court of Magistrates (Gozo) (Family Section)

(Superior Jurisdiction).

Every action made under article 36 shall be made within two

years from when the parties are no longer cohabiting together

Provided that no action can be taken under this Act from the

date of registration of a marriage or civil union between the parties,

without prejudice to any outstanding action they had commenced

before that date.

Part VI

General provisions

When two cohabitants contract a marriage or civil union

between them

(a) the contract of cohabitation, concluded and registered;

or

(b) the provisions of the law in the context of a unilateral

declaration of cohabitation;

shall immediately be null and void with regard to the parties, who,

from the date when the marriage or civil union is contracted, shall

have no right of action on the basis of their cohabitation against each

other.

None of the provisions of this Act shall prejudice the rights

of third parties in relation to any cohabitant.

(1) Where a request is made for action under this Act to the

competent Civil Court by one or the other cohabitants, or by both

of the cohabitants who have agreed to end their cohabitation, save

the action contemplated in article 17, before granting authorisation

to the cohabitant or cohabitants to proceed with the cause, the

Court shall summon the parties to appear before a mediator, either

appointed by the Court itself or with the consent of both parties, so

that where they have not already agreed on the terms of separation,

such mediator helps the parties reach a contract of separation from

the cohabitation on an agreed basis

Provided that where the Court is presented with evidence of

domestic violence between the cohabitants, the Court shall not

summon the parties to appear before a mediator

COHABITATION

Provided also that where, during the mediation, the mediator

becomes aware of any incident of domestic violence, he shall

immediately cease the mediation and inform the Court on the

matter.

(2) This agreement shall include the following terms, as

applicable and if appropriate

(a) the care and custody of the children;

(b)

the access of the two parties to the children;

(c) the maintenance of the cohabitants, or of one of them,

and of each child;

(d) the ordinary, primary, common home where the parties

have resided as cohabitants;

(e) other rights emanating from this Act but which the

parties wish to come to an independent agreement on.

(3) In all procedures of separation in the case of cohabitation

before the competent Civil Court made upon request of one of the

cohabitants or both, having agreed that their cohabitation shall be

terminated, even where the cohabitants are separated by contract or

by a judgement given by the competent Court, the Court may, when

it deems it necessary on its own initiative, or at the request of the

mediator or one of the cohabitants

(a) appoint a children’s advocate to represent the interests

of the minor children of the parties, or of any of them;

and

(b) hear the minor children of the parties, or any of them,

where it considers it to be in their best interest to do

so

Provided that in all procedures of separation from

cohabitation before the competent Civil Court as

referred to in this article, the Court may order the

parties to submit information about the payment of

children’s maintenance.

(4) For every action requested under this Act, save for the action

contemplated in article 17, articles 37 and 39 of the Civil Code shall

mutatis mutandis apply.

The Minister may make regulations to establish the

procedure relating to mediation between the parties as provided for

in this subtitle.

In the absence of specific regulations the Civil Court (Family

Section), the First Hall of the Civil Court and the Court of Magistrates

(Gozo) (Family Section) (Superior Jurisdiction) Regulations shall,

mutatis mutandis, apply to any action brought under this Act with

the exclusion of the action contemplated in article 17.

(1) When the cohabitants have contracted and registered

their cohabitation outside of Malta, or when their cohabitation is

already governed by foreign legislation and both of them wish for

their cohabitation to have the same legal effects as cohabitations

registered in Malta, they shall enter into a contract of cohabitation

COHABITATION

by means of a public deed for which a certificate of cohabitation as

prescribed in the Schedule of this Act shall be issued.

(2) In this case, in order for the rights and duties arising from

this Act to apply to the parties with regard to their cohabitation,

which has been registered under this Act, they shall

(a) provide to the notary drawing up the contract

documents showing that the cohabitation of the parties

is indeed recognised in the said foreign jurisdiction

which governed their cohabitation, which documents

the notary shall annex to the contract;

(b) lay down the date on which the said cohabitation was

recognised in the foreign country in question;

(c) lay down the rights and duties which the cohabitants

shall be bound by in an unequivocal manner in the

contract, provided that these shall at least match the

minimum requirements under article 8;

(d) make a declaration in the same public deed stating that

they wish to have the rights and duties emanating from

their cohabitation, if and when claimed before the

Maltese Courts, regulated under this Act and not be

subject to any other foreign law.

(3) In this case, the date upon which the cohabitation should be

considered to have been constituted between the parties in this case

shall be deemed to be, for all intents and purposes of this Act, the

date stated in the contract of cohabitation of the parties in

accordance with sub-article (2)(b), and not the date on which the

cohabitation has been registered under this Act.

(4) All articles, with the exception of those relating to the

constitution of registered cohabitation referred to in this Act with

regard to registered cohabitation between two cohabitants shall

apply mutatis mutandis for recognition of cohabitation according to

this article.

When cohabitants are entitled to maintenance under a

contract of cohabitation or under this Act and, or, ordered by a

competent Court, they shall immediately notify the department of

social services

Provided that if the cohabitants fail to do so, all benefits

given and which were not due shall be refunded to the department

Provided further that if it is proven that a cohabitant

knowingly failed to observe the provisions of this article, he shall

upon conviction be liable to the punishment envisaged for fraud in

social benefits.

Wherever in the Laws of Malta it is considered that there is

or may be a conflict of interest due to affinity between two persons,

in any circumstance, this shall be construed as applying also to

registered, unilaterally declared or de facto cohabitants.

COHABITATION

(1) Articles 1028A and 1028B of the Civil Code shall apply

where a cohabitant feels that by means of the relationship of

cohabitation, the other cohabitant has unjustly enriched himself, to

the damage of the former cohabitant.

(2) The action for the payment of damages caused in this

manner are barred by the lapse of two years from when the effect of

the unjustified enrichment ceases.

The Minister may make regulations to implement and give

better effect to the provisions of this Act, and without prejudice to

the generality of the foregoing, may prescribe anything which shall

be done or may be prescribed and provide for any consequential

thing, incidental to or connected to the provisions of this Act.

SCHEDULE (Article 6)