Family Law is a dynamic subject that shifts along with the norms and values of Maltese society. Hardly a year goes by without there being any legal development in one or more areas.
Social movements and non-government organisations play an important part in its development. They often are the catalyst that prod politicians to change the law or administrative procedures. The law courts also play an important role in shaping Maltese Family law and some landmark judgments changed the legal landscape at their time.
These developments are often preceded by a heated debated. The Marriage Act of 1979, the Equality between Men and Women laws of 1993, Divorce of 2011, Civil Unions Act of 2014 and gay marriage of 2017 were the topics of their time.
The significant legal developments that shaped modern Family Law are the following:
- Marriage Act – 1975: Prior to the introduction of the marriage act couples could only get married through the Catholic rite. The Marriage Act of 1975 made it also possible for non-Catholics to get married in Malta and for marriages to be annulled – something that was unheard of in Malta at the time. The Marriage Act was fiercely opposed by a significant portion of the Catholic Church that resisted the introduction of the Marriage Act.
- Child Protection Act - 1980: The Child Protection Act made it possible for the state to intervene in families where children were at risk of harm. Through a Care Order issued under the Child Protection Act, children who were subject to harm, could be removed from their environment and placed in an alternative form of care. This law remained largely unchanged since its enactment and is still in force till today.
- Widening the Grounds for Annulment – 1981: The Marriage Act, introduced in 1975 offered limited grounds on which the Courts could find that a marriage could be annulled. Before that, it was difficult for spouses to annul the marriage. Through the 1981 amendments, marriage could be declared null on less restrictive grounds.
- Equality for Women - 1993: Prior to 1993 married women held an inferior status to their husbands. Upon marriage, the husband took charge of the community of acquests, exercising control over both and his wife's earning. The husband had the final say on what could be purchased and also represented the wife in court should she have any civil claim. Back then, children were subject to the authority of the husband and the women enjoyed less parenting rights. Inequalities such as the aforementioned and the institution of dowery were done any within 1993.
- Child Abduction Act - 2000: Malta ratified the 1980 Hague Convention on the Civil Aspects of Child Abduction. Chapter 410 - Child Abduction and Custody Act was the implementing act. Through the Child Abduction Act, courts in Malta were obliged to return children brought to Malta without the consent of their parents. Likewise, children who were removed from Malta without the consent of their parents could easily request signatory states of the 1980 Hague Convention to have children returned to Malta. To date many children wrongfully removed have been brought to Malta or returned to other countries from Malta through this convention.
- Family Court - 2003: Prior to the establishment of the Family Court, all family cases were heard before the Civil Court. The practice was that family law cases used to be heard on a particular day of the week, but judges were assigned to other cases. The volume of work on family matters necessitated the establishment of a specialised court, where judges were assigned to hear only cases relating to family matters.
- European Union - 2003: Malta joins the European Union bringing into effect important laws that impact family law matters. EC Regulation 4/2009 on maintenance and EC Regulation 2201/2003 on court jurisdiction clearly spells out which court has jurisdiction to determine the matter and make it far easier to have judgments an decisions on matrimonial, child custody and maintenance matters delivered in one EU country enforced in other EU countries.
- Mandatory Mediation - 2003: Along with the establishment of the Family Court, new rules were introduced so that parties are forced to mediate before resorting to court litigation. Mediation made it easier for parties to come to an agreement on the matters they agree on and resort to a court decision on the matters they don't.
- Domestic Violence Act - 2005: A significant fraction of all criminal reports filed with the police relate to domestic violence. This law gave a formal definition of domestic violence, thereby making it easier for the law courts to award higher punishment in such cases. It also established a commission together with agencies.
- Foster Care Act - 2007: The Foster Care Act established a Foster Care Board, whose objective was to screen whether a person was fit to serve as a foster carer or not. Prior to the Foster Care Act, prospective foster parents used to be screen by the Adoption and Fostering Panel which was not established by law.
- Adoption Administration Act - 2008: The Adoption Administration Act implemented the 1993 Hague Convention on Child Adoption. The act established the Child Adoption Board, whose role is to screen whether prospective adoptive parents are suitable for adopting children. It also established the Central Authority whose primary function is to ensure that the adoption process is carried out fairly taking into interest all the parties involved.
- Gender Identity Judgment - 2010: The Civil Court and Constitutional Courts found that refusing a transgendered individual from contracting marriage constituted a breach of human rights.
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Divorce – 2011: Malta holds a referendum on whether to provide divorce should be permitted in Malta or not. The divorce was won by the yes camp and subsequently laws were enacted making it possible for married couples to obtain a divorce.
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Civil Unions – 2014: The Civil Unions Act made it possible for same-sex couples to formalize their relationship and put homosexual couples at par with their heterosexual peers. Until the introduction of same-sex marriage in 2017, the main discrimination suffered by same-sex spouses was that their union did not enjoy the title of 'marriage' but that of a 'civil union'.
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Gender Identity Act - 2015: The Gender Identity Act made it possible for transgendered individuals to change their sexual identity without having to resort to a court process.
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Cohabitation Act - 2016: The cohabitation act, that was promised more than a decade ago, in the face of court judgments which made it clear that cohabitees enjoyed no protection and could be evicted at ease from their home, despite being promised safety and security from their partner and having children. The cohabitation act changed this making it possible for a cohabitee to fight an abusive partner who seeks the eviction of that partner.
- Gay Marriage - 2017: The Marriage Act was amended so that same-sex couples could also contract marriage.
- Equality in surnames - 2017: Changes to the Civil Code made did away with the paternalistic tint in law regulating surnames. These changes made it possible for spouses to adopt the surname of the wife or for the family to adopt a combination of surnames.
Drop me an email on webmaster@family-law.com.mt or leave a comment below if you know of any other historical development in Maltese Family Law that is worth commenting upon
