The cohabitation cart and a horse called Divorce

I didn’t think much of Peter Serracino Inglott’s views about the Valletta theatre project. I thought they were conceited rubbish. But when it comes to his remarks about the proposed cohabitation bill, I’m right there with him.

Views on aesthetics and the purposes and functions of a theatre are debatable and informed by different experiences. But no rational thinker will put the cart of cohabitation before the horse of divorce, not unless there are political pressures which derail the processes of logic and commonsense. No intelligent person can possibly conclude that a government should legislate for cohabitation before it legislates for divorce. So when intelligent people do reach this conclusion, and there are several intelligent people in government, you have to ask yourself why they’ve got themselves trussed up like turkeys. And the answer to this is that they’re so afraid that divorce legislation will bleed them of votes that they’re prepared to try having that horse push the cart instead of pull it.

Serracino Inglott was at a discussion on cohabitation, organised by the Malta Confederation of Women’s Organisations (I can’t believe we still have separate organisations for women and men) when he said that “the problem of divorce” is more pressing than “the need for a law on cohabitation”. He told his audience that Malta needs a cohabitation law, but pointed out that this is not the answer to issues raised by the absence of divorce and of marriage between two people of the same gender. He also remarked that a cohabitation law would be most useful for situations in which marriage cannot be countenanced: two siblings living together, for instance.

In the United Kingdom, which does not have laws which regulate cohabitation, despite popular misconceptions to the contrary promulgated by use of the term ‘common-law wife’, this situation was much discussed a while ago when it transpired that sizeable numbers of elderly siblings who had lived together for decades in the same home were being traumatised at the end of their lives when one of the pair died and the other, who inherited the house, had to sell it to pay death duties – a situation which would not apply between husband and wife in terms of the matrimonial home.

Instead of getting all tangled up in cohabitation, Serracino Inglott said, the government should concentrate its efforts on the more pressing issue of divorce, and it should make a clear distinction between the two. Peter Serracino Inglott is right.

I’m going to repeat myself for the umpteenth time, but these are points that bear frequent repetition in an attempt at breaking through the tidal wave of confused thinking that washed over the issue. A law which regulates cohabitation is neither a substitute for divorce (and the consequent ability to remarry) nor is it a substitute for same-sex marriage.

Couples who can marry do not need to put themselves on a cohabitation register. They wouldn’t even want to do that. If you can marry but don’t, then it’s because you want to avoid formalising the union. Cohabitation, like marriage, is a means of formalising a union.

Couples who wish to marry but can’t do so because one of them is or both are married already will not gain anything, by putting themselves down on a cohabitation register, that they can’t give their companion already by dint of a contract published by a notary. The promoters of this bill argue that it will give cohabitants rights to social benefits. Really? I thought the current drive was to reduce dependency on social benefits, and not increase it.

Besides, the only ‘social benefit’ that comes through marriage is a pension, and then only if you don’t already have pension rights of your own. Ah, but here’s the catch. The pension rights of a man who is married (and I say ‘man’ because that’s the way it is here: the men work and have pensions and the women don’t and depend on their husband’s pension) devolve on his wife, even if he has been separated from her for decades, as long as he continues to pay her maintenance. And if he doesn’t pay her maintenance, it means that she’s working and so has her own pension.

So what is the law going to do in situations where neither the estranged wife nor the state-registered concubine works and pays national insurance: split the man’s pension between all three, which is a fine way of ensuring that all of them starve?

The proposals would allow people who are married to register themselves also as cohabitants with third parties. We will become the first state in the European Union to have sanctioned bigamy, passing it off as non-bigamous because one union is registered in the public records office as marriage while the other, concomitant union is registered in the same office as cohabitation. Will the reverse also apply – will somebody who is a registered cohabitant be permitted to marry a third party while still registered as living with somebody else? We have a fine mess to look forward to.

The more we try to avoid the simple and straightforward solution of divorce – the wheel invented several thousand years ago and used by everyone ever since except for a relatively brief and partial interruption in the theocracies of Christian Europe – the more of a grand stew we make for ourselves.

The absence of divorce law has actually served to make Maltese people perceptibly more licentious, immature and irresponsible in their decisions when it was supposed to serve the opposite purpose. When relationships cannot be formalised – as opposed to ‘will not’, which is a conscious choice – they are less likely to be taken seriously.

Unable to marry, and this is actually a godsend to some men who don’t wish to be ‘tied down’ by women pressing for ‘commitment’, people whose marriages are over in all but legality end up behaving like teenagers at Sliema Pitch or Neptunes, dating in the same way now that they dated then and – I find this really scary and unnerving – in many cases that I know of even dating the same people they dated, or wanted to date, as teenagers. It’s as though they’ve been sucked up into a regression time-warp.

A cohabitation register won’t help same-sex couples, either. They are still going to be denied what they really want: marriage. The cohabitation proposals miss the most crucial point of all: marriage is not only about rights and duties, but more importantly, it is about status and a public declaration of that status. A cohabitation register can give homosexual couples, and for that matter also heterosexual couples, nothing more than they can give themselves already now by virtue of a formal contract drafted and published by a notary and a last will and testament received by him or her. But only marriage can give them the status they crave, and the perceived, non-tangible benefits which accrue from that status.

When people get married, it is not because they want rights and duties, but because they want the status of being married. The benefits they seek have little or nothing to do with inheritance rights, not unless they are self-seeking mercenaries, but are intangible and deeply personal. Marriage in itself means a lot to some just as it means little or nothing to others who are quite content to do without it.

You don’t need to be married to somebody or registered as his or her cohabitant to leave your house, your money, your goods and your chattels to that person. Yes, there are pension rights which come only through marriage, but in the 21st century we should be way past thinking in terms of one adult being dependent on another adult for pension rights. The days when women never worked and never got a pension except through a husband are on the way out. The women who still live like this are the past and not the future and their relationships are regulated by marriage already, anyway.

Unmarried couples can confer property and inheritance rights on each other by the simple expedient of visiting a notary. By the same token and method, married couples can revoke those property and inheritance rights by mutual agreement. We overlook the fact that the laws governing marriage are the default position, and that they can be overridden by mutual consent and a notary.

You don’t need to be married to somebody to leave them your house or set up a joint current account with them. After you are formally separated from your spouse, everything you buy or acquire is 100 per cent yours and your estranged spouse has no claim over it whatsoever. So the popular spectre of a spouse from whom you have been estranged for 30 years arriving to wrest your house off your companion when you die is utter tosh.

Anyone who refuses to use a notary to share property with his or her companion before and after death is unlikely to be standing in line to put his or her name down on a register that will regulate the relationship and give that companion rights which have so far been avoided. One half of a couple cannot make a unilateral decision to register as a cohabitant. Both must do it together, by consensus – like marriage.

This article is published in The Malta Independent on Sunday today.