13th February 2024

Barbieland in the Real World: Decoding Cohabitants Property Rights from a Maltese Family Law Perspective

Barbie and Ken - the perfect pair? In Barbieland, maybe. From the bench? Not so much.

The recent motion picture has piqued the interest of a global audience taking its viewers on a whirlwind of emotions. Barbie explores various challenges faced by women all around the world. Greta Gerwig, renowned Director and Screenwriter, recognised the inherent worth in crafting a narrative which most Directors would have dismissed as being too girly, too frivolous or too problematic and has proved through her incredible mastery as a film-maker that telling women’s stories will face no difficulty in achieving cinematic greatness and box office history at the same time. Gerwig was daring enough to re-write an outdated storyline and to challenge deeply entrenched biases to ultimately bring to life the upholding the truth that we are all worthy of being seen, whether one is of a different race, sexuality or social group, we are all worthy of having our lives richly and authentically reflected on screen.

One of the challenges faced by Barbie during the film was the fact that her partner Ken took over the Barbie Dreamhouse, where Barbie lived, and changed the locks, turning it into Ken’s Mojo Dojo Casa House. If one had to analyse such a scenario from a Maltese legislative standpoint, what actions can be taken? What are the rights available to both parties in such a circumstance?

Not unlike many modern-day couples, Barbie and Ken chose not to get married. They have no children and Barbie is the sole owner of Barbie’s Dreamhouse. Let us assume that Barbie and Ken lived together in the Dreamhouse - which may not be canon in Gerwig’s version of Barbieland, but was indeed true for older iterations of the franchise where Ken and Barbie, having been together since the early 1960's did eventually move into their own townhouse together in 1974. Therefore, under Maltese law their relationship would be regulated by Chapter 614 of the Laws of Malta referred to as ‘The Cohabitation Act’ which was specifically enacted to regulate instances of Cohabitation in Malta.

In accordance with Article 3(1) of the Cohabitation Act any couple with the intention of cohabiting must regulate their cohabitation by means of a public deed of cohabitation. The parties may choose an applicable law to govern their cohabitation with certain jurisdictional limitations, but if the parties fail to select a law to govern their cohabitation, it shall be presumed that the applicable law is Maltese law.

The cohabitation will only come into effect from the date of publication of the public deed in the Public Registry by the Notary Public.

The Cohabitation Home

The Cohabitation Home as defined in the Cohabitation Act is a property in which the cohabitants reside together, which may be owned by one or both cohabitants, in any proportion, regardless of whether they hold it through a lease or any other form of ownership, whether jointly or separately. It shall be determined by mutual agreement of the cohabitants, taking into consideration their collective needs and the overarching interests of the family. As outlined in Article 16(2) of the Cohabitation Act, if the cohabitation home is owned, either wholly or partially, or held separately by one of the cohabitants, that cohabitation may only transfer their right to the cohabitation home through an inter vivos transaction under certain following conditions.

Similarly to a marriage, the parties may select a community of assets regime to govern their cohabitation which will commence from the date of publication of the public deed and will cease upon the dissolution of the cohabitation. The Act states that the community of assets in a cohabitation shall be composed of the cohabitation home and any movables found within it.

The cohabitation home shall be included in the community of assets when the acquisition of the property is made after the public deed of cohabitation, even if the acquisition is made in the name of one cohabitant only and even if the acquisition was made with money which either of the cohabitants possessed prior to the cohabitation. There are however exceptions to the inclusion of the cohabitation home in the community of assets.

Any movables acquired after the public deed of cohabitation shall also be included in the community of assets, even when such acquisition is made in the name of only one cohabitant. ‘Movables’ in this context does not include money, securities, vehicles, boats, and any movable which were purchased with the purpose of being used exclusively by one cohabitant. Additionally, movables which will not be included in the community of assets include objects which were given to either of the cohabitants by donation, personal gift or bestowed upon them by succession from third parties.

Therefore, even in the real world, Barbie would be able to keep possession over all of her beloved accessories as well as keep full ownership of her pink Corvette - even if she does decide to enter into a public deed of cohabitation with Ken, since these are all objects which were purchased with the sole purpose of being used exclusively by Barbie.

Governing a cohabitation through the aforementioned Act grants the couple with certain rights that they would otherwise not be entitled to. While Barbie and Ken are immortal, unfortunately we are not and for us lesser mortals the Act even provides for a situation in which one of the cohabitants passes away during the cohabitation. The Act provides that the surviving partner will have a right of habitation for another twelve months in the cohabitation home.

Additionally, the cohabitants have equal rights and assume equal responsibilities during their cohabitation. They have a duty to support each other morally and materially. The cohabitants are also bound each in proportion to their means and their ability to work whether inside or outside the cohabitation home as the interests of the family require to maintain each other and to contribute towards the needs of the family. Such a duty will only cease upon the dissolution of the cohabitation. There are also provisions that relate to the couple having children, which don’t apply in Barbie and Ken’s case.

Additionally, Barbie may even file an action for the restoration of possession in case of spoliation to have Ken evicted from her Dreamhouse as outlined in Article 535(1) of the Civil Code, which states that where any person is by violence or clandestinely despoiled of the possession, of an immovable thing, [s]he may bring an action against the author thereof demanding that [s]he be reinstated in [her] possession. The Court may order such reinstatement, even if the defendant is the owner of the property that the plaintiff has been deprived of. What Barbie cannot and definitely should not do - as tempting as it may be - is change the locks herself and take the law into her own hands.

It may be assumed that Barbie and Ken have still not chosen to regulate their cohabitation under any law, and therefore their cohabitation may be referred to as a de facto cohabitation. Such a cohabitation may come about in certain circumstances. A person, immediately prior to the termination of the relationship who was continually and habitually living with another person as a couple and who had been living together for a period not less than two years, and whose relationship was not regulated under any law, may file an application before the Court within twelve months of the termination of the relationship, requesting the right of habitation in the common home for a period that shall be determined by the Court.

While we can rest easy knowing that Barbie and Ken will be together forever, the same cannot be said for most modern couples, and it is always advisable to seek legal advice that pertains to your specific set of circumstances in order to ensure that you’re best protected in the worst case scenario.

This article is not intended to offer professional advice and you should not act upon the matters referred to in it without seeking specific advice. If you'd like legal advice tailored to your specific circumstances please get in touch with us on [email protected].