Law of Persons PDF

LAW OF PERSONS It relates to the ar cles of the law which have to do with persons in the Civil Code. Maintenance: - Children - Spouses - Ascendants...

LAW OF PERSONS It relates to the ar cles of the law which have to do with persons in the Civil Code. Maintenance: - Children - Spouses - Ascendants - Descendants Ascendants could have the obliga on to maintain their grandson/granddaughter. Parental Authority The rights and obliga ons which the parents have over children. Custody is part of parental authority. Ar cle 3b refers to parents ac ng locos paren s. Repudia on: the opposite of lia on - when a child is disowned. What are the repercussions on the child? The ac on is taken against the father. An ac on for paternity not maternity. What happens to the surname of the child if he/she has the father’s? If it transpires that the child is of a certain age has been known by that surname all their life (and has started trading etc), or for the purposes of iden ty, the child can keep his surname. Maintenance Civil Code 19. (1) Maintenance shall include food, clothing, health and habita on. (2) In regard to children and other descendants, it shall also include the expenses necessary for health and educa on. In prac ce maintenance food, clothing and habita on along with other obvious expenses are normally grouped together and an amount of maintenance is liquidated. Health and educa on are normally split, the father pays half and the mother pays half, this is custom and not part of the law just the way the law has developed. Apart from health and educa on being split, extracurricular ac vi es are also split 50/50. Health and educa on are dealt with separately. This is because you pay depending on necessity. Normally, maintenance is in separa on or custody cases, so in order for somebody to receive relief there is maintenance pendente lite – pending li ga on. The idea is to provide relief for someone during media on. Maintenance is normally paid monthly. It is possible to pay maintenance through a lump sum Ar cle 54 (5). Ar cle 54(5)1 includes the possibility of paying maintenance as a lump sum, which are encouraged for the maintenance of spouses to achieve what is known as a ‘clean break’. However, when children are involved, lump sum payments are discouraged for two reasons: 1. lump sum payments cannot be controlled once the payment is made, and because 2. It maintains a connec on between the paying spouse and his/her children, thus allowing for con nued involvement. It is discouraged and o en prohibited to give a lump sum to a child because it is of concern if the parent receiving the money misuses the funds Maintenance pendente lite ti ti ti ti ti ti ti ti ti ft ti ti fi ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti  Ar cle 46A of the Civil Code states that “during the pendency of the ac on for separa on, either spouse, whether plain or defendant, may demand from the other spouse a maintenance allowance in propor on to his or her needs and the means of the other spouse, and taking into account also all other circumstances of the spouses”. It allows for compensa on during the case rather than at its conclusion. Since family law cases can take years and spouses usually live apart, maintenance pendente lite is needed to support children in the mean me. It is provided based on the spouse’s needs and the other spouse’s ability to pay. Maintenance in kind Art 23(1) &(2) 23. (1) The person bound to supply maintenance may not, without just cause, be compelled to pay a maintenance allowance if he o ers to take and maintain into his own house the person en tled to maintenance. (2) Where maintenance is to be furnished out of the house of the person liable thereto, he may, on good cause being shown, supply such maintenance in kind instead of paying an allowance in money Maintenance in kind is almost never used. It allows the parent to forgo paying maintenance by allowing habita on of the child instead. - This is a dead le er ar cle - It is unused Duty to contribute towards need of the family Civil Code Ar cle 3 3. Both spouses are bound, each in propor on to his or her means and of his or her ability to work whether in the home or outside the home as the interest of the family requires, to maintain each other and to contribute towards the needs of the family. Very important ar cle why? I. Because it says “in propor on to his or her means”. Assets don’t need to be shown but rather it is the income which is taken into considera on II. House work is considered to be work, but in prac ce this is not given much weight Duty of the spouse towards children Ar cle 3B - Maintenance is due un l the age of majority, which is 18, if you are in full me educa on training or learning maintenance will con nue ll age of 23, this is because Malta’s only resource is human resource - If the child stops studying and then recommences maintenance stops and recommences once that stop, as long as it is full me - Ar cle 3B (2) (a) – disability à Valencia vs. Valencia – court of appeal - The child had a disability as de ned in the disability act that being, spina bi da, - The child was in a wheelchair ti ti ti ti ti ti ti ff tt ti ti ti ti ti ti ti fi ff ti ti ti ti ti ti fi ti ti ti ti  - The father was refusing to take maintenance beyond the age of 23 including for the child to heave a new wheelchair - In this case the purpose of the law was distorted because the burden of proof, that is of showing whether the child was capable of working or not was shi ed to the child and whether the child got maintenance going forward was a ques on of trial and error - Court of appeal said the child “irid jiehu ir-riedni f idejh” - The child was given a 1 year period and a er was le to fend for himself Amount of maintenance Ar cle 19(3)(b) and ar cle 20: - The only thing that the law gives you is (quote art 20) - In Malta maintenance is calculated on the basis of the … - In Malta we don’t have a minimum or maximum men on in the law - Every case is treated on a case-by-case basis - An amendment is being proposed on guidelines on how much maintenance is being due - The Dusseldorfer Tabelle à search some info - Because people going to court require visibility as to what they are ge ng themselves into (a legi mate expecta on) courts have come up with a custom that dictates that the customary minimum is 200 euros together with half of health, educa on and extracurricular ac vi es. In 2007 the customary level is €200 and this has not changed ll today Obliga on for maintenance – Ar cle 54 (2) (a-g) When proving how much maintenance is needed you put together a table on how much maintenance is needed. ChatGPT - notes on maintenance: Maintenance Civil Code 19: Maintenance includes food, clothing, health, habitation, and (for children) education. Health and education expenses are usually split 50/50 between parents. Maintenance is often paid monthly. Maintenance Pendete Lite Article 46A allows for maintenance during separation proceedings. It's based on the spouse's needs and the other spouse's ability to pay. Maintenance in Kind Article 23 allows for maintenance to be provided in kind (e.g., housing) instead of money. This is rarely used. Duty to Contribute Towards Need of the Family Article 3 requires spouses to contribute to family needs based on their means. Household work is considered work, but this is not always given weight. Duty of the Spouse Towards Children ti ti ti ti ti ti ti ti ft ft ft ti ti ti tti ti  Article 3B requires maintenance until age 18, or 23 if in full-time education. Maintenance may continue beyond 23 for disabled children, but this is subject to case-by- case assessment. Amount of Maintenance Article 19(3)(b) and Article 20 outline factors for determining maintenance amounts. There is no set minimum or maximum in Maltese law. Customarily, a minimum of €200 per month is considered, plus half of health, education, and extracurricular expenses. Obligation for Maintenance Article 54(2) outlines factors to consider when proving maintenance needs. Currently, there is a proposal for there to be a family law code. Is it a good idea or no? PARENTAL AUTHORITY The law speaks of parental authority but nowadays we speak more about parental responsibility. Parental authority is the rights and obliga ons that a parent has over the person and the property of their children, which lasts un l the age of 18 (the age of majority). Di erence between parental authority and custody Custody is a decision making right. It is the right of a parent to take decisions on behalf of a child of whom they have custody. It isn’t a physical reality in Malta, as it is in the US. In Malta, that is the concept of residence. In Malta, custody is a ques on of what decisions you can take on behalf of your child. Example, the parents with custody may take decisions in so far as the educa on and the health of the child is concerned. Will the child go to church, gov or private school? etc. In Malta we have the concept of the primary residence, which is where one would send a le er to one’s child. Not because it is in the law but because of custom, children normally tend to reside with their mothers. Why? The law is equal. But in 85% of the cases, children live with their mothers. Judges of the family court tend to have an unconscious bias to mothers because being of a certain age they were raised by their mothers while the father went to work. That is the only reason for it. Parental authority and custody are part of the overarching set of rights and obliga ons of parental authority. Ar cle 131 very important for the purposes of parental authority. 131. (1) A child shall be subject to the authority of his parents for all e ects as by law established. (2) Saving those cases established by law, this authority is exercised by the common accord of both parents. A er the death of one parent, it is exercised by the surviving parent. - Both parents need to make decisions provided that they both have custody. ft ff ti ti ti ti ff ti ti tt  (3) In case of disagreement between the parents on ma ers of par cular importance, either parent may apply to such court as may be prescribed by or under any law in force from me to me indica ng those direc ons which he or she considers appropriate in the circumstances. - if there is a dispute between the parents about which school the children are to go to, the nal decision is to be taken by the judge. (4) The court, a er hearing the parents and the child if the la er has reached the age of fourteen years, shall make those sugges ons which it deems best in the interest of the child and the unity of the family. If the disagreement between the parents persists, the court shall authorise the parent whom it considers more suitable to protect the interest of the child in the par cular case, to decide upon the issue, saving the provisions of ar cle 149. - The court will listen to both parents and, if the child is over fourteen, the child as well, to suggest what is best for the child and family unity. If the parents s ll disagree, the court will authorise the parent it believes is best suited to make decisions for the child’s bene t. (5) In the case of an imminent danger of serious prejudice to the child either parent may take such measures which are urgent and cannot be postponed. - the only instance where a parent can decide to do something without the consent of the other is in this case - serious prejudice or imminent danger to the child. Example if the child falls and is injured, the parent just goes to the hospital without the need to ask the other parent rst. (6) With regard to third par es in good faith, each of the spouses shall be deemed to act with the consent of the other where he or she performs an act rela ve to parental authority rela ve to the person of the child. - it is actually presumed that if a parent leaves the children with a third party in good faith, they are presumed to be doing that with the consent of the other parent. Not many people know this. Child to obey and not abandon parental house 132. (1) A child shall obey his parents in all that is permi ed by law. (2) Saving any other provision of law respec ng enlistment in any disciplined force, it shall not be lawful for a child, without the consent of the parents, to leave the parental house, or such house as his parents may have appointed for him. (3) Where the child leaves the house without such consent, the parents shall have the right to recall him, and, if necessary, demand the assistance of the Police. Power of court to authorise child to leave parental house 133. (1) Nevertheless, it shall be lawful for the competent court as may be prescribed by or under any law in force from me to me, for just cause, and without disclosing the same, to authorise the child to leave the parental house. (2) Where delay might be detrimental, it shall be lawful for any magistrate to give the requisite order, making a report thereof, not later than the following working day, to the said court, which may con rm, revoke, or vary such order. Power of the court to authorise child to be placed in alterna ve care 134. (1) It shall be lawful for the parents, if they are unable to control the child, to remove him from the family, assigning to him, according to the means of the parents, such maintenance as is strictly necessary. ti ti ti ft fi ti ti ti ti ti tt tt fi ti ti tt ti ti ti ti fi ti ti fi  (2) In any such case, the parents may also, where necessary and upon obtaining the authority of such court as may be prescribed by or under any law in force from me to me, place the child, for such me as is stated in the decree, in some alterna ve form of care, which the court will according to circumstances consider suitable, to be, at the expense of the parents, cared for and treated in such manner as the court may deem conducive to the discipline and educa on of the child. (3) The demand for such authority may be made even verbally; and the court shall make the necessary order thereon without any formal proceedings, and without giving its reasons therefore. Parents to be representa ves of the children 135. The parents jointly represent their children, whether born or to be born, in all civil ma ers. - this is alluding to the idea that children are children before they are born. There was a very interes ng case. A lawyer had a rela onship with a women - not married. She got pregnant. She told him that she did not want another child and that she wanted to go abroad to have an abor on. He did not want her to have an abor on - he led a warrant of prohibitory injunc on because he has the right to represent the child, whether born or to be born. Unfortunately, they were not married so this caused problems. There is no birth cer cate iden fying him or any other else as the father of the unborn child. She managed to go abroad but did not have an abor on regardless. Parents’ power of administra on 136. (1) The parents jointly administer the property of their children, whether born or to be born, except such as has devolved on such children on condi on that it shall be administered solely by one of the parents or by third par es. (2) Acts of ordinary administra on may however be performed by either of the parents without the interven on of the other. - things which are acts of ordinary administra on can be done by one parent and not the other. (3) Acts of extraordinary administra on which must be performed by the parents jointly include - (a) the aliena on of movables by nature, including motor vehicles for the object of pro tably inves ng the proceeds thereof; (b) the collec on of capitals that may become due; (c) the gran ng of personal rights of enjoyment over immovable property; (d) the acceptance of an inheritance, legacy or dona on in the name of the child; (e) the par on of movables by nature; (f) acts which require the authorisa on of the court in terms of sub-ar cle (4) of this ar cle. (4) The parents may not alienate immovables or movables by opera on of law belonging to the child nor may they contract loans or other debt, on his behalf hypothecate or pledge his property, enter into a suretyship, enter into any compromise, or submit a dispute to arbitra on except in case of necessity, or manifest u lity and with the authority of the court and in any such case the court may, at the request of the parents, authorise one only of the parents to represent the child on the rela ve deed. This means that parents generally cannot sell, give away, or borrow against a child’s property unless it’s absolutely necessary or clearly bene cial for the child. Even then, they need court approval. In such cases, the court might allow one parent to represent the child in the transac on. (5) In case of disagreement between the parents the provisions of ar cle 131 shall apply. ChatGPT short notes: Parental Authority ti ti ti fi ti ti ti ti ti ti ti fi ti ti ti fi ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti fi tt ti ti ti  Parental authority is the legal power and responsibility parents have over their children un l they turn 18. It includes making decisions about the child's: Care: This includes decisions about the child's health, educa on, and well-being. Property: This includes managing the child's nances and property. Key Points: Shared Responsibility: Both parents usually share parental authority. Court Interven on: If parents disagree, the court can step in to make decisions. Child's Opinion: Older children may have their opinions considered in court proceedings. Emergency Situa ons: In urgent situa ons, one parent can act without the other's consent. Third-Party Trust: Ac ons taken by one parent are generally assumed to have the other parent's consent. Relevant Laws in the Civil Code: Ar cle 131: Outlines the general principles of parental authority, including shared decision- making and court interven on. Ar cle 132: Requires children to obey their parents and not leave home without permission. Ar cle 133: Allows the court to authorise a child to leave the parental home in certain circumstances. Ar cle 134: Allows parents to place a child in alterna ve care with court approval. Ar cle 135: Parents represent their children in legal ma ers. Ar cle 136: Parents jointly administer their children's property, with certain excep ons. HOW PARENTAL AUTHORITY CEASES There are two ways in which parental authority ceases: 1. When it ceases ipso iure 2. When it is forfeited Di erence between ceasing ipso Iure and forfeiture: When something ceases ipso iure, it dies a natural death. It comes to an end naturally. When something is forfeited is likely to be puni ve in nature because something is being taken away from you. When parental authority ceases ipso jure 150. Parental authority ceases ipso jure in each of the cases following: (a) on the death of both parents or of the child; (b) when the child a ains the age of eighteen years; (c) on the marriage of the child; (d) if the child, with the consent of the parents, has le the parental home and set up a separate domes c establishment; (e) if the parents fail to make, in favour of the child, the registra ons referred to in ar cles 2038 and 2039 [registra on of legal hypothec created by 2019]; so however that where only one parent has failed to make such registra on, parental authority shall not cease in rela on to the parent who has not so failed; ff ti ti ti ti ti ti ti ti ti ti tt ti ti ti ti fi ft ti ti tt ti ti ti ti ti ti  (f) if the surviving parent remarries or, in the case of an adop ve parent, if a er the adop on he marries or remarries, without having rst made an inventory of the property of the child and obtained from the court the requisite leave to con nue in the exercise of the rights of parental authority. If parental authority ceases ipso iure, can it be reinstated? When court may reinstate parent in parental authority 151. In any of the cases referred to in paragraphs (e) and (f) [hypothec registra on /inventory crea on] of the last preceding ar cle, it shall be lawful for the court, if it deems it expedient in the interest of the child, to reinstate the parent in the parental authority wholly or in part upon his performing that by reason of the omission of which he had forfeited such authority. - if a parent has lost their parental rights due to not ful lling certain legal requirements (like registering a hypothec or crea ng an inventory of the child’s assets), the court can choose to give those rights back if it believes it’s in the child’s best interest. However, to regain these rights, the parent must rst do whatever they ini ally failed to do that caused them to lose their authority. When parent may be deprived of parental authority 154. (1) Saving any other punishment to which he may be liable according to law, a parent may be deprived, by the said court, wholly or in part, of the rights of parental authority, in any of the cases following: (a) if the parent, exceeding the bounds of reasonable chas sement, ill-treats the child, or neglects his educa on; (b) if the conduct of the parent is such as to endanger the educa on of the child; (c) if the parent is interdicted, or under a disability as to certain acts, as provided in ar cles 520 to 527 [interdic on/incapacita on] inclusive of the Code of Organisa on and Civil Procedure, and ar cles 189 and 190 of this Code [interdic on/incapacita on]; (d) if the parent mismanages the property of the child; (e) if the parent fails to perform any of the obliga ons set out in ar cle 3B in favour of the child. (2) If the interests of the child so require, the Court may order that only one of the parents shall exercise the rights of parental authority and the Court may also restrict the exercise of these rights and, in serious cases, exclude both parents from the exercise of these rights. Both parents can have their parental authority taken away from them. (3) The Court may also restrict the exercise of the aforemen oned rights where one or both of the parents are charged with one or more of the o ences listed in Title VII of Part II of Book First of the Criminal Code. (4) Nevertheless, the court may, even in the cases men oned in sub-ar cle (1) of this ar cle, reinstate the parent in the exercise of the rights of which he has been deprived, when the cause of such depriva on ceases to exist. Imagine a woman is raped and she decides to carry the child and gives birth to the child. The ‘father’ reforms his ways. Can he ever have rights of parental authority over that child? As the father of the child, he has parental authority, but since he raped the women, the rights are stripped from him. He can never get them back. Usufruct of property of child to cease on forfeiture of parental authority 155. The usufruct of the property of the child shall cease upon the forfeiture of any of the rights of parental authority, and shall only be re-acquired upon the full restora on of parental authority. fi ti ti ti ti ti fi ti ff ti ti fi ti ti ti ti ti ti ti ti ti ti ft ti ti ti ti ti ti ti ti  This provision means that if a parent loses their parental rights, they also lose the right to use or bene t from their child's property. This right can only be regained if the parent gets their parental rights back in full. When minor carries on trade 156. (1) Where a minor, who has a ained the age of sixteen years, has been authorised under ar cle 9 of the Commercial Code, to trade, or, not being a trader, to perform certain acts of trade, such minor shall, in regard to all ma ers rela ng to his trade, or in regard to such acts, be considered as being of age. - it is possible to be emancipated into trade even for certain acts of trade. (2) Nothing in this Code shall a ect all other provisions of the Commercial Code, rela ng to minors and to children subject to parental authority. Filia on is the ac on for establishing your paternity. Repudia on is the ac on for saying that somebody is not your father. At the moment, there are 2 lia on cases which are ongoing: 1. Victor Bu gieg vs Ray Fenech et, the case of Tumas Fenech —> Victor decided Tumas was his father and he ini ated proceedings to prove he is his father. The key ar cle we are going to be dealing with is Ar cle 81. This ar cle prevented somebody from establishing the paternity over the course of 13 years. Un l 2015, DNA test in Malta was barely recognised as evidence. Let’s say in the case of Tumas that the father is dead, how do you establish paternity then? Exhuma on. If the person you believe to be your father is dead, you can ask for him to be exhumed. Exhuma on as a remedy is not men oned in the law. One of the defences that the Fenechs are raising. So far has this not been tested. But there have been a number of cases where exhuma on has been resorted to but in most cases there hasn’t been opposi on to the exhuma on. There is the hemit opposi on. ChatGPT short notes: How Parental Authority Ceases Parental authority can cease in two ways: 1. Ipso Jure: This means it ends automatically due to specific events: ◦ Death of either parent or the child ◦ Child reaches 18 years old ◦ Child gets married ◦ Child leaves home and establishes an independent life with parental consent ◦ Failure to register a legal hypothec or create an inventory of the child's property ◦ Remarriage of a surviving parent without creating an inventory 2. Forfeiture: This occurs when a parent loses parental rights due to misconduct or neglect: ◦ Child abuse or neglect ◦ Conduct harmful to the child's education ◦ Mental incapacity ◦ Mismanagement of the child's property ◦ Failure to fulfill child support obligations Reinstating Parental Authority: ti ti tti ti ti ti tt ti ti ff ti tt ti fi ti ti ti ti ti ti ti ti ti ti ti fi  In some cases, a parent who has lost parental rights due to a specific reason (like failure to register a hypothec) can have their rights restored by the court if they correct the issue and it's deemed beneficial for the child. Other Considerations: Emancipation: A minor can be granted certain adult rights, including the right to enter into contracts, if they are involved in business or have court approval. Paternity Establishment: If paternity is disputed, DNA tests and even exhumation can be used to establish biological relationships. Note: These are general principles of Maltese law. Specific legal advice should be sought for individual cases. BROAD PRESUMPTIONS Child born in wedlock 67. A child conceived in wedlock is held to be the child of the spouses (previously ‘of the mother’s husband.’) Mater semper certa est – The mother is always certain. Presump on of concep on during wedlock 68. A child born not before one hundred and eighty days [6 months] from the celebra on of the marriage, nor a er three hundred days [10 months] from the dissolu on or annulment of the marriage, shall be deemed to have been conceived in wedlock. Pater is est quem justae nup ae demonstrate – The father is he who is married to the mother. If a woman who is ge ng separated from her husband has a child from her partner, the child will be deemed to be the child of her husband whether he is or he isn’t. You have to then go through a procedure to correct the birth cer cate. Ar cle 70.A —> VERY IMPORTANT Pre y much how procedures happen. 70A. (1) Whenever the clari ca on of natural parentage of a child is required – (a) the spouse may require the spouse who gave birth and the child; (b) the spouse who gave birth may require the spouse and the child; (c) the child may require both parents; and (d) the alleged natural parent may require both spouses and the child, To consent to a gene c paternity test and to acquiesce in the taking of a gene c sample appropriate for the test, which sample must be taken according to the then current provisions of the law. (2) In the applica on, men oned in sub-ar cle (1), of a person en tled to clarify, the Civil Court (Family Sec on) may require any of the spouses, the child, and the alleged natural parent, as appropriate, to consent to a gene c test of parentage, and to acquiesce to the taking of a gene c sample appropriate for the test, which sample must be taken according to the current provisions of the law: Provided that where the said consent is not given by the par es, the Civil Court (Family Sec on) must subs tute that consent that has not been given and order acquiescence in the taking of a sample. ti tt ti ti ft ti ti ti ti ti ti tti fi ti fi ti ti ti ti ti ti ti ti ti ti  This means that in cases where someone applies to clarify parentage, the Civil Court (Family Sec on) has the authority to require the relevant par es—such as the spouses, the child, or the alleged biological parent—to consent to a gene c test of parentage. This includes allowing a gene c sample to be taken in accordance with the law. If any of these par es refuse to provide their consent, the court has the power to override their refusal by subs tu ng their consent and ordering the collec on of the gene c sample. This ensures that the process of determining parentage can proceed, even without the voluntary agreement of all involved. This gave rise to an interes ng situa on: The wife was ordered to take the child to have a DNA test. The wife didn’t want the actual father to be recognised as the father. The court subs tuted her consent and said you have to do it. She was reluctant so she asked her friend whether she could borrow her child. The doctor realised that something was wrong. The child was referring to woman not as ‘mummy’. She went to court informed the judge and criminal proceedings started against the mother. She was found guilty, she appealed and found guilty again and then interdicted. She was no longer a func oning part of society - not allowed to vote, enter into contracts etc. (3) In the absence of gene c and scien c evidence, the Civil Court (Family Sec on) may consider any other evidence presented which it deems to be relevant, including the drawing of inferences from the fact that a person did not provide a gene c sample, despite being ordered to do so. If you refuse, the fact that you have de ed the court, refused to par cipate in the exercise will be used against you. The presump on is that you have something to hide. (4) The Civil Court (Family Sec on) shall dismiss the applica on if and as long as the clari ca on of the natural parentage would result in a considerable adverse e ect on the best interests of the minor child, which would be unreasonable for the child, even taking into account the concerns of the person en tled to bring the ac on. If someone decides that the ac on as a whole is not in the best interest, for that child’s parentage to be clari ed, the person bringing the ac on may have the right to clarify stripped away from him. In the case of rape, there may be an excep on. This harm must be deemed unreasonable for the child, even when considering the concerns and rights of the person who led the case. Essen ally, the child’s welfare takes precedence over the interests of the person seeking to establish parentage. (5) A person who has consented to a gene c test of parentage and has given a gene c sample may require the person en tled to bring the ac on who has had a parentage test made, to permit inspec on of the gene c test of parentage report or to provide a copy. The Civil Court (Family Sec on) shall decide disputes arising from the claim under sub-ar cle (1). This means that if someone has agreed to a gene c test for determining parentage and has provided a sample, they have the right to request access to the parentage test report from the person who ini ated the test. This could involve either being allowed to inspect the report or being given a copy of it. If there is any disagreement about this request, the Civil Court (Family Sec on) is responsible for resolving the dispute. (6) The ac on men oned in sub-ar cle (1) shall be decided by virtue of a decree, which decree may be appealed according to the procedure contemplated in ar cle 229(2) of the Code of Organisa on and Civil Procedure. We do not need to know this!!! Registra on of Birth 78. (1) The lia on of children conceived or born in wedlock is proved by the act of birth registered in the Public Registry. John Zammit maghruf bhala John Edward Zammit Pace vs Dire ur tar-Registru Pubbliku COA - 2 March 1994:‘[...] hija haga maghrufa illi l-ligijiet ta’ l-istat civili, bir-registrazzjoni ta’ l-a jiet tat-twelid u taz-zwieg, fi ti ti ti fi ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti ti fi fi ti ti ti ti fi ti ff ti tt ti ti ti ti tti ti ti ti ti ti ti fi ti ti ti ti ti ti ti  kif ukoll tal-mewt, hija haga wisq importan ghall-hajja civili tas-socjeta`, peress illi minn dawk l- annotazzjonijiet jiddependu hafna dri jiet tac-ci adini.’ Victor Bu gieg problem - on his birth cer cate there is somebody else listed as his father. He was born and conceived in wedlock and so this ar cle applies. The law is concerned with preserving the family. All of this mo vated by the legislator’s desire for keeping the family unit in tact. Possession of status of child conceived or born in wedlock 79. In default of evidence as provided in the last preceding ar cle, the con nued possession of the status of a child conceived or born in wedlock shall be su cient. Possession of status to be proved by series of facts 80. (1) Such possession shall be established by a series of acts which, collec vely, go to show the connec on of lia on and rela onship between an individual and the family to which he claims to belong. (2) Such facts are chie y the following: In the case of spouses who have contracted marriage before the coming into force of the Marriage Act and other Laws (Amendment) Act, 2017* that the individual has always borne the surname of the father of whom he claims to be the child; (b) in the case of children born to spouses who have contracted marriage a er the coming into force of the Marriage Act and other Laws (Amendment) Act, 2017, that the individual has always borne the Family Name of the spouses of whom he claims to be the child; (c) that the parents have treated the child as their own, and have, as such, provided for the child's maintenance, educa on, and establishment in life; (d) that he has been constantly acknowledged as such in society; (e) that he has been acknowledged as such by the family. This sec on outlines how the possession of a familial rela onship ( lia on) can be demonstrated through various ac ons that collec vely establish a person’s claim to belong to a par cular family. These acts include: 1. Carrying the Surname/Family Name: For individuals born to spouses married before the 2017 amendment, the individual must have consistently carried the surname of the father they claim as their parent. For individuals born to spouses married a er the 2017 amendment, they must have consistently carried the family name of the spouses they claim as their parents. 2. Parental Treatment: The alleged parents must have treated the individual as their child by providing for their maintenance, educa on, and overall establishment in life. 3. Social Acknowledgment: The individual must have been consistently recognised and accepted as the child within society. 4. Family Acknowledgment: The individual must have been acknowledged as a family member by other members of the family. fi ti ti tti ti ti ti fl ti ti tti ti ft ti fi ti tt ti ffi ti ti fi ti ti ti ti ft ti  This is the other evidence you can bring to show connec on other than a DNA test. These are the ways in which you prove connec on to a par cular family. If somebody brings a lia on suit against someone that B is the father even though A is on the birth cer cate, unless he manages to show that the points men oned in sub ar cle 2 do not apply, he will have no chance of success. If however there is no name on the birth cer cate and that person shows that he has always been known by the family name, that he is considered by the family he is a part of it etc.. he may very well be successful even without a DNA test. 81. (1) No person may claim a status contrary to that which is a ributed to him by the act of birth as a child conceived or born in wedlock and the possession of a status in conformity therewith. If your birth cer cate says that you are the son of Mr X, you cannot claim or a empt to establish that you are the son of Mr Y. This is the ar cle which is discussed in the Tumas Fenech case. (2) Likewise, it shall not be lawful to contest the status of a child conceived or born in wedlock in respect of a person who possesses a status in conformity with his act of birth. Where act of birth and possession of status are wan ng 82. In default of the act of birth and the possession of status, or if the child shall have been registered under a false name, or as being born of parents uncertain, or in case of supposi on or subs tu on of a child, although in these last two cases, there exists an act of birth in conformity with the status possessed by the child, the proof of lia on may be made by any other evidence admissible according to law. This provision states that if there is no o cial birth cer cate or possession of status (recogni on of a familial connec on), or if the child was registered under a false name, as being born to unknown parents, or in cases of child subs tu on or falsi ca on of iden ty, the rela onship of lia on (parentage) can s ll be proven. In such situa ons, any other legally admissible evidence can be used to establish parentage. This ensures that the absence of formal documenta on or cases of decep on do not prevent someone from proving their familial es Example a refugee who has come to malta without any documenta on. It is highly unlikely that an act of birth is unknown or that the parents are uncertain. But in this case, lia on can be proven by any other evidence admissible according to law. See: - Jesmond Zammit vs Anthony Rapa et FHCC – 18 January 2000 - Carmel Grima vs Carmelo Borg et FHCC 190/97 5 July 2001 - Paolo Huber noe vs Alessandro Ma ei COA 26 October 1914 OF THE FILIATION OF CHILDREN CONCEIVED AND BORN OUT OF WEDLOCK The rules of children born out of wedlock are less stringent. Acknowledgement of children conceived or born out of wedlock 86. A child conceived or born out of wedlock may be acknowledged by the father and the mother, either jointly or separately: Provided that where the person acknowledging himself to be the father of the child is a minor the acknowledgment is null: this la er proviso has been REMOVED. Judicial demand - the most important ar cle ti fi ti ti ti fi fi ti ti ti ti ti ti tt tt ti ti fi ti ffi ti ti fi ti ti ti ti ti fi tt ti ti fi fi ti ti ti ti fi ti tt ti ti ti ti ti  86A. (1) The mother of a child conceived or born out of wedlock who is not acknowledged by the father, and that same child, may at all mes make a judicial demand to establish the paternity of the child and for the court to order the registra on of such paternity in the rela ve acts of civil status. (2) The judicial demand referred to in sub-ar cle (1) may also be sought by the heirs or the descendants of the child if the same circumstances as those which are referred to in ar cle 85 will exist. In prac ce, A judicial le er is sent to the father basically invi ng the father to accept paternity of the child. The father than has 2 months in which to reply in which he either says that he is acknowledging or nor acknowledging the change. If he does acknowledge paper work is sent to registry and birth cer cate is amended. How made 87. (1) The acknowledgment of a child conceived and born out of wedlock may be made in the act of birth, or by any other public deed either before or a er the birth. (2) Any declara on of paternity or maternity made otherwise by either of the parents, or by both, or by a minor, can only be admi ed as evidence of lia on in an a lia on suit. E ects 88. An acknowledgment shall only operate in regard to the parents making it, and it shall not confer on the child so acknowledged any right against the other parent. A child conceived and born out of wedlock of a spouse, born before or during a marriage 89. A child conceived and born out of wedlock born to a spouse before or during marriage, and acknowledged during a marriage may not be brought into the matrimonial home, except with the consent of the other spouse, unless such other spouse has already given his or her consent to the acknowledgement. Parental authority over a child conceived and born out of wedlock 90. (1) The parent who has acknowledged a child conceived and born out of wedlock shall have in regard to him all the rights of parental authority other than the legal usufruct. If a mother sends judicial le er to father and father acknowledges the child, that father acquires parental authority over that child. (2) If the interests of the child so require, the court may order that only one of the parents shall exercise the rights of parental authority; (3) The Court may also restrict the exercise of the aforemen oned rights and, in serious cases, exclude both parents from the exercise of these rights. (4) The Court may also restrict the exercise of the aforemen oned rights where one or both of the parents are convicted with one or more of the o ences listed in Title VII of Part II of Book First of the Criminal Code. Let us say there is a successful ac on of lia on and a par cular individual is placed in the birth cer cate of a child. What happens to that child’s surname? Is it changed to re ect that of the person who has been iden ed as the father or nor? Surnames Surname of a child conceived and born out of wedlock ff ti fi ti ti tt tt ti ti tt ti ff fi fi ti ti ft ti ti ffi ti ti ti ti ti fl ti ti fi ti fi  92. (1) A child conceived and born out of wedlock, if he has been acknowledged by the father, shall assume his surname, to which may be added the surname of the mother; otherwise, he shall assume the surname of the mother: Provided that when the child born out of wedlock has been acknowledged jointly by both the father and the mother on the Act of Birth, the surname by which that child shall be known shall be determined in terms of ar cle 292A. 292A. The person giving no ce of the birth shall also deliver a declara on by the parents of the child indica ng the surname to be used by the child in terms of ar cle 4(3) or of ar cle 92, and such surname shall be registered in the column under the heading "Name or names by which the child is to be called and Surname" in the act of birth immediately a er such name or names. Where no such declara on is made in the case of a child conceived and born in wedlock the father’s surname shall be presumed to have been so declared and in the case of a child conceived and born out of wedlock the maiden surname of the mother shall be presumed to be the surname so declared. In the case of there not being a declara on about the child’s surname (maybe they forgot), if the child was born in wedlock, he shall take the surname of the father, if born out of wedlock, shall take the surname of the mother. OF THE PRESUMPTION THAT A PERSON WAS CONCEIVED OR BORN IN WEDLOCK (Ar cles 101-112) Where presump on arises 101. Where parents of children conceived and born out of wedlock subsequently marry, or where the court of voluntary jurisdic on so decrees, such children shall be deemed iuris et de iure to have always been conceived or born in wedlock. Here we are talking about a couple who are not married, but subsequently, get married. If child born prior to marriage but they subsequently get married, that child is presumed to have been conceived or born in wedlock. This ar cle was amended in 2004. Previously, the ar cle stated “may be legi mated” instead of “shall be deemed iuris et de iure to have always been conceived or born in wedlock”. Condi ons for presump on 102. The presump on arising out of subsequent marriage in accordance with the preceding ar cle shall not take place unless the children have been acknowledged by both parents by means of a declara on in the act of marriage, or otherwise as provided in sub-ar cle (1) of ar cle 87, or unless their paternity and maternity have been declared by a judgment of the court. E ects of presump on as a consequence of subsequent marriage 103. Children deemed to have been conceived or born in wedlock by subsequent marriage of their parents shall be vested with the rights of children conceived or born in wedlock as from the day of the celebra on of the marriage, if they shall have been acknowledged on that day or previously, or if their lia on shall have been declared before the marriage by a judgment of the court. Surname to be assumed by child presumed to have been conceived or born in wedlock in virtue of decree of court 110. (1) Subject to the provisions of ar cle 92(6), a child in whose favour there is a presump on in virtue of a decree of the court shall assume the surname of the parent upon whose demand he shall have been so presumed. ff ti ti ti ti ti ti ti ti ti ti ti ti ft ti ti ti ti ti ti ti ti fi ti ti ti ti ti ti  (2) Where the presump on has taken place upon the demand of both parents, the child shall assume the surname of the father, to which may be added the surname of the mother: Provided that in the case of children born to spouses who have contracted marriage a er the coming into force of the Marriage Act and other Laws (Amendment) Act, 2017*, the surname to be adopted by the child presumed to have been conceived or born in wedlock shall be the Family Name adopted by the spouses in terms of ar cle 4. If a child wishes to con nue to use their surname they can request to do so either themselves or though representa ve and if the court is convinced it is in the best interest of child and rights of third par es will not be e ected than the court will allow the child to use the same surname. ff ti ti ti ti ft ti