Maltese family and sucession laws recognise three models of couple's relationship:
MARRIAGE between persons of the same or opposite sex
REGISTERED PARTNERSHIP between persons of the same sex or opposite sex
COHABITATION between persons of opposite or same sex
The marriage is regulated under the Civil Code, the registered parthnership is regulated under the Civil Union Act (Chapter 530), and the cohabitation is regulated under the Cohabitation Act (Chapter 571).
Before 2017, only persons of opposite sex could get married. Now marriage, registered partnership and cohabitation are allowed for both, different and same-sex couples. Only limited legal effects are attached to the cohabitations.
Links to applicable regulations
MARRIAGE AND SUCCESIONS: Civil Code
REGISTERED PARTNERSHIP: Civil Union Act (chapter 530)
COHABITATION: Cohabitation Act (chapter 571)
Regarding the matrimonial property, after contracting marriage the couples establish the community of acquests, spouses are obliged to maintain each other according to their means, they owe each other fidelity and by default bequeath everything to each other and their children upon their death.
By default, when a couple gets married in Malta the Community of Acquests regime applies (Art. 1316of the Civil Code), unless they conclude a marriage contract. Whenever marriage is regulated by the Community of Acquests regime (set of rules), it is assumed that almost all of the property brought in by the spouses during the marriage falls into one large ‘estate’. The administrators of this estate (community of property) are the spouses themselves and they jointly administer the goods composing such estate. In ordinary circumstances, under the Community of Acquests régime everything acquired by the spouses during marriage is deemed to belong to both in equal shares.
Maltese law provides that spouses may choose, with a marriage contract (Kitba taż-Żwieġ), different ‘regimes’ (set of regulations): Community of Residue under Separate Administration (CORSA) or Separation of Estates (SoE). Through the Community of Residue under Separate Administration regime all that is acquired by the spouses is held to be administered separately (Art. 1338 et seq). However spouses can be co-owners of specific items they choose to co-own (identical to the Separation of Estate régime). Once the regime is terminated (either because spouses have retired from work or due to marriage breakdown) all that has been acquired by the spouses will be ‘pooled-in’ and divided between the two. Through the Separation of Estates regime each spouse retains full control over his or her estate. In such case there is one family unit but economically they are two separate individuals. By opting for this régime spouses remain the sole owners of any possession they had before marriage and after marriage.
In the event of divorce/separation, in case of division of the community property each spouse is entitled to one half of the liabilities belonging to the community property (Art. 1333 of the Civil Code). At the termination of the community of residue, the final residues of the spouses remaining after deduction of debts are equalised (Art. 1341 of the Civil Code).
In the event of the death of a spouse, the situation differs in case of testate and intestate succession.
The spouses are free to nominate each other universal heirs of their entire estate in a will, without prejudice to the rights of the descendants to the reserved portion. In case of intestacy, the surviving spouse receive half of the estate (Art. 808 para. 1 of the Civil Code). The surviving spouse also has the right to continue living in his/her principal residence (Art. 633 of the Civil Code). If the deceased has left no children or other descendants, the surviving spouse is the sole heir (Art. 810 of the Civil Code).
The legal effects of a Civil Union are identical to Marriage. Civil Union Act was passed in 2014 in order to accommodate the same-sex couples who wanted to formalise their relationship, but were not allowed to get married back then. In 2017, marriage laws were changed so that same-sex couples could also get married, making the law on civil unions somewhat redundant.
A civil union, once registered, shall mutatis mutandis have the corresponding effects and consequences in law, including property ones, of civil marriage contracted under the Act (Art. 4 of the Civil Union Act).
In the event of the death, the partner of the civil union have the same rights of the surviving spouse.
The Cohabitation Act provides for 3 different forms of cohabitation:
(i) De facto cohabitation
Couples who are already cohabiting and have done so for at least the past two years are automatically recognised as de facto cohabitees.
No legal document is necessary for this kind of cohabitation. De facto cohabitation does not give rise to mutual legal rights and obligations between cohabitants, however, after two years of cohabitation, the couple is granted a limited set of rights: Cohabitants are considered as each other’s tenant for all intents and purposes of the law with regard to the rents of their common home; Cohabitants shall be considered as each other’s next of kin; Cohabitants shall have the right to take decisions relating to each other’s medical care; Cohabitants may not be compelled to be witnesses against each other in legal proceedings.
(ii) Cohabitation by means of a contract
Persons who have the intent of cohabitating or persons who are already cohabiting and wish to formally regulate their cohabitation may do so by entering into a contract of cohabitation.
The contract is drafted and signed before a notary and registered in the Public Registry, thus making the contract a public deed. The contract is flexible and can be drafted according to the couple’s wishes and needs. As a minimum, however, the contract must state the following: The house that shall be deemed to be the common home of the cohabitants, as well as the legal title of each cohabitant on the said home and the transfer of the rights on the said house in the event of separation; The division of assets and liabilities in the event of separation; Maintenance, if one of the cohabitants is or becomes dependent on the other cohabitant, and the annual percentage mark up on the said maintenance, if the couple wishes to establish such maintenance; Matters related to the cohabitants’ children, whether or not such children are the result of their relationship or a previous one, including their care and custody in the event of separation, the right to live in the common home, and the maintenance of any dependent children. These rights and duties are similar to those which married or civil union couples enjoy, including, among others, succession rights and social security rights.
(iii) Cohabitation by means of unilateral declaration
The Act gives an opportunity to one party to the relationship to declare an existing cohabitation by means of a judicial letter.
This form of cohabitation applies to those couples who are in disagreement on how and if their relationship should be regulated, which could potentially give rise to situations where a party is in a vulnerable situation. In this case, the Act provides the possibility to be formally regulated by means of this letter. Unilaterally declared cohabitations will be accepted by the State for five years after the coming into force of the Act. This period is envisaged to give vulnerable parties enough time to regulate themselves by means of this letter. Following the end of these five years, unilateral declarations may not be filed. Once the judicial letter is registered, and it is ascertained that there are no impediments or objections to it made by the other cohabitant, the two parties will have the basic rights and duties listed in the Act. The couple is always at liberty to choose to enter into a contract of cohabitation as previously described, following which the judicial letter would become null and void.
For the cohabitant registered, in the event of the death of one of the cohabitants (Art. 34 of the Cohabitation Act), 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. Provided that this number of years cannot exceed fifteen years. The survivor is entitled to the said right vita durante or until he enters into another contract of cohabitation, marriage or civil union.