So they've been advised against legalising bigamy, after all

Published: May 22, 2011 at 12:31pm

When news of a planned cohabition law broke, I wrote repeatedly that it was nuts without divorce, because people who are separated from their spouse and living with somebody else are still married and, if their subsequent relationship is given a legal framework, that would be tantamount to bigamy.

Now it appears that this is precisely the advice the government was given, even though it has not denied repeated accusations in the media that it is inconsistent because it wishes to give a legal framework to cohabitation while fighting against divorce legislation.

It is up for discussion whether the government purposely did not specify that separated people will not have their subsequent relationships regulated by the cohabitation law. I hope it was not a deliberate attempt to mislead people into voting against divorce because they can easily make do with cohabitation law instead.

But anyway, I can’t see why anyone would think the one is a substitute for the other, and equally, I can’t understand how so many people – including politicians – actually thought that it would be possible to introduce a form of legalised concubinage (or the male equivalent) into a legal system which bars bigamy.

Besides, heterosexual couples who live together when neither is married to anyone else don’t need a cohabitation law to regularise their position because they have access to a perfectly serviceable law already: marriage.

The only reason they might not want to take that up is because cohabitation law allows you to leave and marry somebody else, while marriage – in the absence of divorce legislation – does not.

There’s a good piece about this in The Malta Independent on Sunday, today.



The Prime Minister’s refusal to publish the cohabitation bill before the referendum on divorce takes place on Saturday clearly indicates that the bill will not regularise the situation of people who have once been married, and who are now separated and are living with a new partner.

The draft cohabitation law being discussed within government structures will only formalise relationships between brothers and sisters, other relatives, and people of the same sex living under one roof. Without a law on divorce, it would be impossible to include provisions for the regularisation of cohabiting couples if one or both were previously married, as this is the closest one can get to legalising bigamy.

An advanced draft presented to Parliament’s Social Affairs Committee specifically excludes the possibility that cohabiting couples could have their relationship formalised in the absence of a divorce law. The government is refusing to answer questions on the matter.

Legal experts told The Malta Independent on Sunday that while the Nationalist Party, on the one hand, is being conservative in fighting adamantly against the introduction of divorce, and has taken an official stand against it, the party is drafting a liberal law that would regularise same-sex relationships (unless one or both of the partners had been married in the past), as well as situations in which people of the same family live in the same house. Without divorce, the cohabitation law has to exclude people who have been married.

As such, a ‘No’ victory in the divorce referendum would effectively deal a double blow to separated people in new relationships: they would not be able to seek a divorce, and they would not be in a position to regularise any new relationship they entered into after their separation.

The only way that cohabiting couples would be able to regularise their position is if divorce were made legal. This would possibly open the way for provisions to be included in the cohabitation law, meaning that people would then have a choice – to either get divorced and remarry, or divorce and cohabit.

There is also the possibility that if divorce becomes legal, the cohabitation law would still not include provisions for cohabiting individuals who have been married previously. This could be done to avoid putting marriage and cohabitation on the same level. But, of course, if divorce is introduced, couples could then re-marry if they want to regularise their relationship.

Legal experts point out that the absence of a divorce law would make it impossible for a relationship in which one or both partners had previously been married, to be formalised, since regularising that relationship would be the closest one could get to legalising bigamy.

They explained that people who are separated are still legally married to their partner, since their marriage has not been dissolved via divorce, and therefore any formalisation of their relationship with another partner would effectively mean that they would be legally linked to two partners at the same time.

An advanced draft of the cohabitation bill that was presented to the Social Affairs Committee when the law was being discussed makes it clear that an absence of divorce legislation would make it impossible for cohabiting couples to regularise their relationships at law.

The report, which The Malta Independent on Sunday has seen, states that “in the absence of a law that provides for divorce in Malta, couples in which one or both partners are married or who have separated from their partners should not be entitled to register their relationship”.

When the government announced it was working on a cohabitation law, the impression it gave was that it would include cohabiting couples. But it is now clear that the people were misled into thinking this would happen, since the cohabitation bill will not include provisions for people who were previously married.

The exclusion of separated people from the draft cohabitation bill was mentioned as one of the bill’s possible “surprises” when Opposition Leader Joseph Muscat was answering questions during the Inkontri programme aired on One TV on Monday.

Likewise, pro-divorce movement chairperson Deborah Schembri, in a televised press conference forming part of the referendum campaign last Tuesday, said she strongly suspected that the cohabitation bill that will be published will not include provisions to cover people who have already been married, and who are now in a relationship with someone else.

A few days ago, in a meeting with the pro-divorce movement, which asked for the publication of the bill specifically for this reason, Prime Minister Lawrence Gonzi said he did not want to publish its contents in the days before the divorce referendum.

Dr Gonzi that day had said that “divorce and cohabitation were not exclusively linked” and that “cohabitation does not necessarily presume marriage but recognises people living together, be they siblings and cousins among others.”

These comments now hold more significance as they appear to be a confirmation that the cohabitation law will do nothing to formalise the relationship of couples with previous marital baggage. While divorce deals with marriages, cohabitation will deal with relatives or people of the same sex who had not been previously married. It is also thought that, in order to formalise a homosexual cohabitation, the couple would need to register themselves not as a couple but rather as flat or house-mates.

6 Comments Comment

  1. Daphne Caruana Galizia says:

    Read the full report here:

  2. Alan says:

    I agree with not including separated people in the cohabition law.

    However, this legislation should have gone hand in hand with the introduction of divorce through a simple addition to the separation laws in our civil code, allowing separated people to remarry while still enforcing a separation contract, not through a referendum.

    But we are in Malta, so viva the square wheel.

    Same-sex couples will now have rights and legal recognition, before separated people who wish to have the same through remarriage.

    Excuse me, but I must say this …. LOL

    • Charlene says:

      Same-sex couples have it difficult enough as it is, so if a new cohabitation law helps them get status and recognition we should go ahead with it.

  3. David says:

    And I suspect the result of this will be that new heterosexual couples will be more inclined towards going for regularized cohabitation rather than marriage, in order to avoid finding themselves in such a complicated straitjacket.

    What’s more? Going into a cohabiting relationship will probably be relatively easy to get out of … would this lead to the equivalent of a Las Vegas style divorce where one can just “leave” the relationship with little more than a few signatures in front of a notary? So much for the conservative 4-year period in the proposed law being a ‘divorzju bla raguni’!

    • Alan says:

      100% correct.

      They invented something new in the process – ‘nofs zwieg’.

      Strengthening the family indeed. LOL just doesn’t cover it. It’s more like 100 ROTFLMAOs.

      Let’s not fix the broken road, but shape the wheels to the pot-holes instead.

      Malta is the laughing stock of the world.

  4. cogito says:

    Alan, I cannot understand what you’re proposing. One can be either married or separated or divorced (single). What separation means in our law is that the spouses remain married and retain all their obligations towards each other except that of living together – hence separation.

    The obligations of reciprocal maintenance between spouses (unless excluded by agreement) and marital fidelity (which cannot be excluded even by agreement) remain unchanged. It is therefore impossible to enact a law giving rights to cohabiting couples if at least one of the two is still married for there would be a breach of the fidelity obligation unless, that is, the obligation of marital fidelity in the case of separated couples is also removed by law.

    This is the situation, pure and simple.

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