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Cohabitation deeds on hold as notaries locked in talks with government

Notarial Council issues directive instructing members not to publish or give advice on cohabitation deeds due to glitches in law

Government is locked in discussions with the Notarial Council after notaries were instructed not to give advice or publish deeds of cohabitation because of a number of legal uncertainties in the law.

The impasse derives from a number of glitches in the law enacted in 2017 and in comments to The Shift, the council said although it was consulted to provide feedback prior to the enactment of the Cohabitation Act “some of our proposals were taken on board but others were not.”

“The law as it stands creates uncertainty to clients who are affected by this law or who want to enter into contracts contemplated by this law. At the time of this message we have been in several discussions with the Ministry concerned and the fact that the Act as it is calls for various amendments was acknowledged,” the council added.

But a spokesperson from the equality ministry led by Helena Dalli reassured that government lawyers were in talks with notaries to improve the law. “The law has been in force for nine months and we are evaluating the law according to the experiences encountered during the past months.”

Talking to the Shift, the ministry’s policy director Silvan Agius said the glitches which are emerging now were never flagged during the consultation process and the ministry was now receiving more feedback than it did before the law came into force.

While noting that all laws are tweaked to cater for any arising anomalies, Agius said that the cohabitation law needs to be changed to mitigate a number of issues which have been flagged such as inheritance issues.

The law regulating cohabitation offers de facto recognition without the need to make a formal notification for couples that have been living together for two years.

Rights granted to couples in cohabitation include the recognition of the spouse as a next of kin with the right to take medical decisions on behalf of the partner and the right not to testify against each other in court, similar to the right enjoyed by married couples.

The law also includes a second type of cohabitation which allows couples the right to draw up a contract in front of a notary where they can decide what rights and obligations to include in the contract.

A third permutation is a temporary right applicable for the next four years and was designed to protect vulnerable spouses in abusive relationships.

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