Law of Persons - ELSA Malta PDF

CVL2015 LAW OF PERSONS ABOUT ELSA ELSA Malta is a distinguished member of the ELSA International network, comprising over 50,000 students from more than 350 law faculties across Europe. The organization is deeply committed to upholding the values enshrined in its motto - "A just world in which there is respect for human dignity and cultural diversity" - and strives to achieve this mission in all its activities. Founded in 1986, ELSA Malta is recognized as a prestigious student organization by the Senate of the University of Malta. Its primary aim is to represent all law students in the University and provide them with a diverse range of opportunities. ELSA Malta offers various events throughout the academic year that cater to the needs of law students of all ages, providing them with an excellent opportunity to expand their legal knowledge across various topics in the Law Course. Additionally, these events can prove to be of great value to students from other faculties as well. Furthermore, ELSA Malta also strives to promote international understanding and cooperation by fostering cultural exchange and encouraging students to participate in international projects, conferences, and competitions. By engaging in such activities, ELSA Malta seeks to equip its members with valuable skills and experiences that will help them become responsible and active citizens of the global community. DISCLAIMER Please note that the student notes provided by ELSA Malta are intended to supplement your own notes and independent study. These notes may contain errors or omissions, and we cannot guarantee their accuracy or completeness. While these notes may act as a tool to enhance your understanding of the material covered in class, we advise against relying solely on them in preparation for examinations or assignments. It is crucial to attend all classes, review the assigned readings, and take your own notes. ELSA Malta cannot be held responsible for any consequences that may arise from the use of these notes, including poor academic performance or misunderstandings of course content. By accessing and using these notes, you acknowledge and agree to these terms and conditions. ACKNOWLEDGMENTS ELSA Malta President: Luke Bonanno ELSA Malta Secretary General: Jake Mallia ELSA Malta Director for External Relations: Beppe Micallef Moreno Writer: Luca J. Camilleri IV Luca J. Camilleri The Law of Persons Dr Robert Thake Dr Ruth Farrugia Mr Justice Lawrence Quintano Introduction The law of persons is often as peculiar as persons themselves. The law of persons is called as such because the first book of the Civil Code is the book of persons. The Civil Code is divided into persons and things and the former deals with the rights and obligations of persons, physical and/or legal. The law of persons started in 1873 when Sir Adriano Dingli published the Ordinance of Persons. Prior to that the law of persons was somewhat regulated by the Code de Rohan. The laws where then consolidated in 1942 with the publication of the first proper civil code. The law of persons is influenced by society as it is moulded around the society it serves. Take for example the changes made in 2004 removing the distinction between those children born in and out of wedlock. I. Maintenance Maintenance covers, amongst other things, food, education, health, accommodation. Maintenance amongst spouses is almost unheard of today, due to the fact that today it is more common for spouses to be financially independent from one another, another instance of the law of persons adapting to changing social realities. Maintenance is defined in article 19 of the Civil Code as: “(1) Maintenance shall include food, clothing, health and habitation, (2) In regard to children and other descendants, it shall also include the expenses necessary for health and education”. It is worth noting that at no point is the word “adequate” defined in the law. Maintenance is typically paid on a monthly basis. However, article 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: lump sum payments cannot be controlled once the payment is made, and because it maintains a connection between the paying spouse and his/her child/ren, thus allowing for continued involvement. Act XIV of 2011 emphasised the importance of education in maintenance and so in order to incentivise people to come to university and study, maintenance was increased potentially until the age of 23 (provided the child pursues a masters’ degree). Maintenance pendente lite Article 46A of the Civil Code states that “during the pendency of the action for separation, either spouse, whether plaintiff or defendant, may demand from the other spouse a maintenance allowance in proportion to his or her needs and the means of the other spouse, and taking into account also all other circumstances of the spouses”. Thus, pendente lite means pending litigation, making maintenance pendente lite an interim measure. It is the 1 54(5) Notwithstanding any other provision of this Code, on separation being pronounced, the court may if it deems it appropriate in the circumstances, order the spouse liable to supply maintenance to pay to the other spouse, in lieu of the whole or part of such maintenance, a lump sum, which the court deems sufficient in order to make the spouse to whom maintenance is due financially independent or less dependent of the other spouse, as the case may be. Luca J. Camilleri opportunity to get recompense during the case as opposed to at the end of it. Family law cases may take years to be resolved and because spouses typically live separately during the proceedings, thus making maintenance pendente lite necessary to support the children during the interim. Maintenance pendente lite is given in proportion to the needs of the spouse and the means of the other spouse. Article 25(1) specifies that maintenance given pendente lite is given “for bare subsistence”. This is generally not applied because it would be too long a period of time to simply survive. This is done if the defendant is of sufficient means as to be liable to pay maintenance when the case concludes. Article 25(2) states that “where in any such case the claim for maintenance is disallowed, the defendant shall be entitled to claim, from the plaintiff himself, or from the person bound to supply maintenance, to such plaintiff, the reimbursement of any amount he may have paid, together with interest thereon”. In the case of Il-Pulizija v. Carmelo Farrugia (Court of Criminal Appeal)(23rd of January 1998) the Court in its judgement ruled that when the maintenance pendente lite period expires whilst proceedings are still ongoing the legal validity of the duty to pay maintenance shall continue to be upheld. Maintenance in kind Maintenance in kind is when a person takes someone else to live with him as opposed to paying maintenance in monetary form. Maintenance in kind is almost never used. It allows the parent to forgo paying maintenance by allowing habitation of the child instead. It is regulated by article 23 of the Civil Code which reads as follows: 23. (1) The person bound to supply maintenance may not, without just cause, be compelled to pay a maintenance allowance if he offers to take and maintain into his own house the person entitled 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. Duty to contribute towards needs of the family Article 3 of the Civil Code states that “both spouses are bound, each in proportion 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”. This provision allows the spouse to contribute towards the family inside the home, meaning in the eyes of the law housework is considered as employment, although it is very often not quantified and instead the Court comes up with a figure. Duty of spouse towards children Article 3B of the Civil Code reads as follows: 3B. (1) Marriage imposes on both spouses the obligation to look after, maintain, instruct and educate the children of the marriage taking into account the abilities, natural inclinations and aspirations of the children. Luca J. Camilleri (2) The obligation of the parents to provide maintenance according to sub- article (1) also includes the obligation to continue to provide adequate maintenance to children, according to their means, and where it is not reasonably possible for the children, or any of them, to maintain themselves adequately, who: (a) are students who are participating in full-time education, training or learning and are under the age of twenty-three; or (b) have a disability, as defined in the Equal Opportunities (Persons with Disability) Act, whether such disability is physical or mental. (3) The obligations provided in sub-article (1) also bind a person acting in loco parentis with regard to another person’s child, by reason of the marriage of such person to a parent of that child, where the other parent of that child, shall have, at any time before or during the marriage, died or was declared as an absentee according to Title VII of Book First of this Code, or is unknown: Provided that the provisions of this sub-article shall be without prejudice to the obligations of the natural parents of the child and shall in any case be without prejudice to the provisions of article 149. With regards to a physical/mental impairment, there is no age at which maintenance stops being paid. Typically, it is paid until the child can financial support itself, naturally this is dependent on the extent of the disability. Article 3B (3) has yet to be interpreted by the courts. Amount of maintenance Article 20(1) states that “maintenance shall be due in proportion to the want of the person claiming it and the means of the person liable thereto”. Thus, the law speaks not of a maximum or minimum, as well as the issue of proportionality. The scope of maintenance is to provide for the survival of those entitled to receive it, and therefore one cannot argue for a rise in the amount due. Article 20(2) states that “in examining whether the claimant can otherwise provide for his own maintenance, regard shall also be had to his ability to exercise some profession, art, or trade”. Article 20(3) states that “in estimating the means of the person bound to supply maintenance, regard shall only be had to his earnings from the exercise of any profession, art, or trade, to his salary or pension payable by the Government or any other person, and to the fruits of any movable or immovable property and any income accruing under a trust”. Article 20(4) states that “a person who cannot implement his obligation to supply maintenance otherwise than by taking the claimant into his house, shall not be deemed to possess sufficient means to supply maintenance, except where the claimant is an ascendant or a descendant”. That is to say, if the only way one can maintain a dependent is by taking them into one’s own home, it cannot be claimed that one is capable of adequately maintaining said dependent. Luca J. Camilleri Article 20(5) states that “in estimating the means of the person claiming maintenance regard shall also be had to the value of any movable or immovable property possessed by him as well as to any beneficial interest under a trust”. In Germany, they have what is known as the Düsseldorfer Tabelle which sets a standard maintenance amount depending on the salaries of the parties involved. The Maltese, less rigid, system of maintenance allows for discretion on the judge’s part and added flexibility. It does not allow for the same level of certainty as the German system, but it is a system that generally benefits the children by allowing the judge to take into consideration all variables, something a rigid table is incapable of. It is precisely because even though the Maltese system is more flexible and therefore better for the child, in order to allow a lawyer to give advice to a client who asks for the amount of maintenance, the courts have created a custom which is that the minimum amount of maintenance which can be paid for a single child is that of €200 a month and half of health and educational expenses. Some judges believe that the amount should be increased to €230 a month. Article 54 (Obligation for maintenance) reads as follows: 54. (1) The spouse against whom the separation is pronounced shall not, as a result of such separation, be relieved from the obligation of supplying maintenance to the other spouse, where, according to the provisions of Sub- title I of this Title, such maintenance is due. (2) The amount of maintenance referred to in sub-article (1), and the maintenance due to children in the event of separation, shall be determined having regard to the means of the spouses, their ability to work and their needs, and regard shall also be had to all the other circumstances of the spouses and of the children, including the following: (a) the needs of the children, after considering all their circumstances; (b) any disability, as defined in the Equal Opportunities (Persons with Disability) Act, whether such disability is physical or mental; (c) circumstances of illness which are of such seriousness and gravity as to compromise the ability of the spouses or of the children to maintain themselves; (d) whether the ability of the party to whom maintenance is due to have earnings of whatever nature was diminished by reason of that party having, during the marriage, taken care of the household, the other party and the upbringing of the children of the marriage; (e) every income or benefit which the spouses, or any of them, receive according to law, other than social assistance that is not contributory which is paid to them under the Social Security Act: Provided that for the purposes of this paragraph the disability pension payable in terms of article 27 of the Social Security Act shall be taken into consideration; (f) the accommodation requirements of the spouses and of the children; Luca J. Camilleri (g) the amount which would have been due to each of the parties as a benefit, including, but not limited to, a benefit under a pension scheme, which by reason of the separation, that party will forfeit the opportunity or possibility of acquiring. (3) The provisions of article 381(2) of the Code of Organisation and Civil Procedure shall apply mutatis mutandis provided that the said article shall be construed to mean that, even where no demand is made by a party to whom maintenance is due, either for that party or for the children, for the application of the provisions of that article, the court may apply the said article out of its own motion. (4) In granting maintenance, the court may also provide for the manner in which the same may increase from time to time. (5) Notwithstanding any other provision of this Code, on separation being pronounced, the court may if it deems it appropriate in the circumstances, order the spouse liable to supply maintenance to pay to the other spouse, in lieu of the whole or part of such maintenance, a lump sum, which the court deems sufficient in order to make the spouse to whom maintenance is due financially independent or less dependent of the other spouse, as the case may be. (6) For the purposes of sub-article (5), the court shall, among the circumstances, consider the possibility of the person to whom maintenance is due, of receiving training or retraining in a profession, art, trade or other activity or to commence or continue an activity which generates an income, and order the lump sum for that purpose. (7) The court may direct, according to circumstances, that the payment of a lump sum referred to in the previous sub-articles of this article, be made by equal or unequal instalments spread over a reasonable period of time. (8) The court may also direct that in lieu of all or part of the lump sum referred to in sub-article (5), the spouse liable thereto shall assign to the other spouse property in ownership or in usufruct, use or habitation. (9) Where there is a supervening change in the means of the spouse liable to supply maintenance or the needs of the other spouse, the court may, on the demand of either spouse, order that such maintenance be varied or stopped as the case may be. Where however, a lump sum or an assignment of property has been paid or made in total satisfaction of the obligation of a spouse to supply maintenance to the other spouse, all liability of the former to supply maintenance to the latter shall cease. Where instead, the lump sum or assignment of property has been paid or made only in partial satisfaction of the said obligation, the court shall, when ordering such lump sum payment or assignment of property, determine at the same time the portion of the maintenance satisfied thereby and any supervening change shall in that case Luca J. Camilleri be only in respect of the part not so satisfied and in the same proportion thereto. Note the following: In article 54(2)(a) reiterates the long-held judicial belief that the amount of maintenance should always reflect the actual needs of the children, and everything should be taken into consideration when determining what precisely these needs are. Article 54(2)(d) is a more recent innovation intended to address situations where, instead of working, one of the spouses took to raising the family and keeping up the house. Whilst, if the spouse in question is young enough, it may be possible for them to work, this rule recognises the difficulty of entering the workforce, particularly a profession, after a long period of being outside of it. To that end, the law now considers this one of the factors to be taken into account when maintenance is calculated. Article 54(2)(e) notes that contributory social benefits (such as the State Pension) should be taken into account when calculating the amount of maintenance due. Article 54(2)(g) is also a novel concept and shall include, as an example, insurance schemes paid into by one spouse which would have benefited both spouses had they remained married. Article 54(3) authorises the Courts to order that the payment of maintenance be taken directly from the salary/allowance/bequest of the spouse ordered to pay maintenance as well as to inform any relevant parties to that effect. This is achieved through the issuance of garnishee orders (pursuant to article 381 of the COCP 2). Article 54(4) allows the Court to order that the amount owed for maintenance be increased periodically, this could be to allow said amount to keep up with inflation or for any purpose the Court deems fit. Articles 54(5), (6), (7), and (8) allow for the maintenance to be paid as a lump sum and the Court, when determining the amount thereof, shall ensure that it is enough for the spouse to be financially independent from the other, or at the very least less dependent. Supervening Change Article 54(9) authorises the Court to suspend or alter the amount owed for maintenance should a supervening change occur in the life of the spouses ordered to pay it. Take, for example, a loss or change in employment. Alternatively, the supervening change may occur 2 Article 381(2) COCP “... in causes for maintenance, the court may, either in the judgment or in a subsequent decree upon an application to that effect by the creditor suing for maintenance, where such creditor is the spouse, or a minor or an incapacitated child, or an ascendant of the debtor, order that a specified portion of the salary, allowance or bequest mentioned in sub-article (1)(a), (b) and (d) or of the salary of any person, be paid directly to the creditor; the service of any such order on the person by whom the said salary, allowance or bequest is payable shall have the same effect as a garnishee order; and the person so served shall pay directly to the creditor the portion of the salary, allowance or bequest specified in the order.” Luca J. Camilleri on the end of the receiving spouse, take, for example, said spouse entering into gainful employment. With regard to maintenance paid in the form of a lump sum, should a supervening change occur after the lump sum has been paid there can be no refund. Alternatively, should such a supervening change occur in the life of the spouse liable to receive maintenance, the duty to pay it shall cease completely. To that effect, if the lump sum is being paid in instalments the Courts could order the cessation or reduction of such payments. Beyond article 54(9) the notion of supervening change exists also in the general context of maintenance vis-à-vis other family members. Article 21 states that “(1) Where the person supplying maintenance becomes unable to continue to supply such maintenance, in whole or in part, he may demand that he be released from his obligation, or that the amount of maintenance be reduced, as the case may be. (2) The same shall apply where the indigence of the person receiving maintenance shall cease, wholly or in part”. Article 22 goes on to states that “(1) Where maintenance has been furnished, no action will lie for the repayment of such part thereof as may have been furnished after the cessation of the cause for which maintenance was due. (2) Nor can the person to whom maintenance was due claim from the person liable, upon the latter becoming able to supply such maintenance, the amount thereof in respect of the time during which the person liable for maintenance did not furnish it for want of means”. To that end, the spouse who is liable to pay maintenance cannot bring about a supervening change (take, for example, resigning from one’s employment) purely to withhold maintenance and spite the spouse liable to receive it. See the following cases: 1. Rita Attard v. Raymond Attard (06/02/1995): Here, it was found that Mr Attard intentionally resigned from his employment with the scope of withholding maintenance from his ex-wife, and so the Court ordered that his duty to pay had not ceased. 2. Il-Pulizija v. Anthony Saliba (Court of Appeal – 15/07/1998): Here, the Court of Appeal ruled that should a person liable to pay maintenance find himself unemployed he must first urgently petition the Court to reduce the amount of maintenance owed or stop it altogether, as opposed to simply withholding the payment of maintenance directly, which is what Mr Saliba did in this particular case. As a means of discouraging this practice he was ordered to pay a fine (ammenda) of Lm5. It was made clear that Mr Saliba had absolutely no right to simply decide to stop paying maintenance, irrespective of his inability to pay it. Furthermore, the Court took into account the fact that the defendant resigned with considering his maintenance obligations. 3. Zahra Charmaine pro et noe v. Zahra Alfred (27/06/2003) (First Hall, Civil Court): Here, the Court held that: “Id-dizokkupazzjoni ma hijiex per se` motiv biex tehles lir- ragel mill-obbligu tal- manteniment lejn martu u uliedu. Dan aktar u aktar imbaghad fejn, bhal f‟dan il- kaz, id-dizokkupazzjoni tkun kolpuza”. 4. Francis X. Aquilina v. Carmela sive Lina Aquilina’ (05/10/2001) (Court of Appeal): Here, Plaintiff petitioned the Court for a reduction in the amount owed in maintenance but it was decided that he lacked an appropriate basis to justify such a Luca J. Camilleri reduction. Furthermore, based on the evidence submitted to it the Court deduced that Plaintiff only petitioned the Court for a reduction to spite his ex-wife. When the obligation to pay maintenance ceases/Grounds for Refusal to Give Maintenance Article 6 of the Civil Code (cessation of duty to supply maintenance) states that “the duty of one spouse to maintain the other shall cease if the latter, having left the matrimonial home, without reasonable cause refuses to return thereto”. However this provision is very rarely cited. Article 27 states that “(1) The obligations of any person to supply maintenance to another shall cease if the person in whose favour such obligation is established, shall contract marriage, notwithstanding the opposition of the person liable as aforesaid, provided such opposition be made on good grounds, and the demand from the release from such obligation be made by the person objecting within the time of six months following the celebration of the marriage. (2) Such opposition shall only be operative if it is made by means of a judicial act to be served on each of the parties intending to contract the marriage, and filed in the registry of the civil court, in the island in which the person objecting, or either of the said parties, resides”. Here, the law speaks of how parents may cease maintaining their children when they contract marriage when the parent liable to pay maintenance opposes said marriage. Article 28 states that “for the purposes of the last preceding article, the want of the necessary means of subsistence, having regard to the position of the party to whom the opposition refers, or the bad character of the other party, shall be deemed to be a good ground of opposition to the proposed marriage”. Thus, the above-mentioned opposition should be on good grounds. To that end, the opposition must be made plain before the marriage is contracted through a judicial act to be served to each of the parties contracting marriage and filed in the registry of the Civil Court. After the marriage contracts the parents have six months to petition the Courts to be released from the obligation to maintain their child. Acceptable grounds on which a marriage may be opposed to include their child’s marriage to a person of bad character or a person lacking the necessary means of subsistence. Article 29 states that “where the marriage has been celebrated with a total or partial dispensation from the previous publication of banns, and it is not shown that the person subject to the obligation mentioned in article 27, was aware of the proposed marriage at least fifteen days prior to its celebration, it shall be lawful for such person, even in default of the opposition referred to in that article, to demand, within the time of six months following the marriage, his release from the said obligation on any of the grounds on which such opposition would have been effectual”. Article 32 states that “besides the ground referred to in article 27, parents or other ascendants may refuse maintenance to children or other descendants on any of the grounds on which an ascendant may disinherit a descendant”. The provisions under which an heir can be disinherited are listed under article 623 of the Civil Code. Article 48(1) lists the consequences that afflict a spouse if they are found to be responsible for the breakdown of a marriage. These are relatively mild but there is one in particular which, if applied, could be quite devasting (48(1)(d)). Luca J. Camilleri Article 38 triggers article 48. Article 41 triggers article 48. When maintenance can be revised Maintenance can be revised when the person supplying maintenance becomes unable to continue doing so. Article 21 states that: “(1) Where the person supplying maintenance becomes unable to continue to supply such maintenance, in whole or in part, he may demand that he be released from his obligation, or that the amount of maintenance be reduced, as the case may be. (2) The same shall apply where the indigence of the person receiving maintenance shall cease, wholly or in part”. This provision caters for both the reduction of maintenance the termination of the payment thereof. Article 54(9) speaks of supervening changes under which one may ask for the revision of maintenance: “Where there is a supervening change in the means of the spouse liable to supply maintenance or the needs of the other spouse, the court may, on the demand of either spouse, order that such maintenance be varied or stopped as the case may be. Where however, a lump sum or an assignment of property has been paid or made in total satisfaction of the obligation of a spouse to supply maintenance to the other spouse, all liability of the former to supply maintenance to the latter shall cease. Where instead, the lump sum or assignment of property has been paid or made only in partial satisfaction of the said obligation, the court shall, when ordering such lump sum payment or assignment of property, determine at the same time the portion of the maintenance satisfied thereby and any supervening change shall in that case be only in respect of the part not so satisfied and in the same proportion thereto”. Enforcing the obligation to pay maintenance The most common way of enforcing maintenance is with the filing of a police report. Under article 338(z) it is a contravention against public order because of the importance attached to by society and those found guilty of not paying maintenance can be sentenced to a custodial sentence of not more than 3 months. II. Parental Authority The rights and obligations of parents towards their children. Maintenance is one of them. We shall be dealing with how it is acquired, lost, grown out of, and everything in between. One of the means by which parental authority may be lost if the parent is found guilty of any offence under Book IV of the Criminal Code (offences of a sexual nature). However, neglect (either by omission or commission) remains the main reason under which parental authority is lost. Education is taken extremely seriously under the Civil Code and the failure to ensure that one’s children have adequate ones remains one of the key grounds for neglect. Jurisprudence is divided (unevenly) between those judges who believe that parental authority is given to those with custody over the child whereas the majority of judgements overwhelmingly argue that parental authority is granted to those with decision-making power of the child. Once the child reaches eighteen years of age, he grows out from under his parent’s authority for all purposes except for those related to maintenance. Luca J. Camilleri Parental authority can be referred to as the rights and obligations the parents have over their children. It is almost impossible to outline everything which constitutes a right or obligation insofar as parental authority is concerned. There is an important distinction between parental authority and care and custody. In Malta there are two separate concepts: residence and custody. Whether they were actually intended to be separate concepts remains uncertain. First residence is determined (here in Malta we have what is known as a primary residence), then there is care and custody, which is typically joint. Here in Malta, care and custody is the right to take decisions and be informed insofar as the child is concerned. Furthermore, parental authority has been jointly exercised by both parents since the 1993 amendments which did away with the concept of patria potestas. Child Subject to Parental Authority Children are subject to parental authority which stems from a Roman Law concept. Today, the concept has become more relaxed with the terminology itself changing, meaning the term parental responsibility is now used. Under Roman Law the father had complete authority over the child and was even free to kill it if the need be. Article 131 of the Civil Code reads as follows: 131. (1) A child shall be subject to the authority of his parents for all effects as by law established. (2) Saving those cases established by law, this authority is exercised by the common accord of both parents. After the death of one parent, it is exercised by the surviving parent. (3) In case of disagreement between the parents on matters of particular importance, either parent may apply to such court as may be prescribed by or under any law in force from time to time indicating those directions which he or she considers appropriate in the circumstances. (4) The court, after hearing the parents and the child if the latter has reached the age of fourteen years, shall make those suggestions 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 particular case, to decide upon the issue, saving the provisions of article 149. (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. (6) With regard to third parties 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 relative to parental authority relative to the person of the child. This last provision (6) means that if a parent entrusts a third party with the child that person is deputised by said parent and is deemed to be in good faith. Luca J. Camilleri Article 133 extends to the Courts the power to authorise the child to leave the parental home if he or she so requests. This is typically done in the best interests of the child should the child be under the parental authority of parents deemed unfit to care for the child by the Courts. The Effects of Parental Authority on Minors This provision is another remnant of Roman Law. It is regulated under article 132 which reads as follows: 132. (1) A child shall obey his parents in all that is permitted by law. (2) Saving any other provision of law respecting 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. Article 132 stems from the concept of vicarious liability, that is to say if their child is a minor and causes any injury or liability to a third party, his or her parents shall be held liable for any losses incurred. Power of the Court to Authorise child to be placed in alternative care This regulated under article 134 which reads as follows: 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. (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 time to time, place the child, for such time as is stated in the decree, in some alternative 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 education 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 therefor. This provision stems from the Code de Rohan. This provision is used in cases where the parents find themselves incapable of catering to their children’s needs or controlling them. This does not relinquish the parent’s liability to provide maintenance to the child. To that end, the cost of this alternative care shall be burdened by the parents. Should the child be aged 14 or elder, he has the right to be heard when considering the issue. In Malta there are two Luca J. Camilleri programmes catering to such children, FEJDA for girls and FORMULA 1 for boys. Once a care order is issued, Parents to be representative of the children Article 135 states that “the parents jointly represent their children, whether born or to be born, in all civil matters”. If two parents are unmarried until the child is born only the mother exercises parental authority. Parents’ powers of administration Article 136 gives parents the power to administer the property of the child because children cannot administer their own. Article 136 states that: “(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 condition that it shall be administered solely by one of the parents or by third parties (2) Acts of ordinary administration may however be performed by either of the parents without the intervention of the other”. Extraordinary acts of administration are written in a non-exhaustive list found in article 136(3)” (3) Acts of extraordinary administration which must be performed by the parents jointly include (a) the alienation of movables by nature, including motor vehicles for the object of profitably investing the proceeds thereof; (b) the collection of capitals that may become due; (c) the granting of personal rights of enjoyment over immovable property; (d) the acceptance of an inheritance, legacy or donation in the name of the child; (e) the partition of movables by nature; (f) acts which require the authorisation of the court in terms of sub-article (4) of this article. The parents may not alienate immovables or movables by operation 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 arbitration except in case of necessity, or manifest utility 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 relative deed. The acceptance of inheritance Article 137 states that: 137. (1) Any inheritance devolving on the children, shall be accepted by the parents with the benefit of inventory, unless such inventory is dispensed with by the court. (2) If one of the parents is unable or unwilling to accept such inheritance, the inheritance may be accepted by the other parent with the authority of the Luca J. Camilleri court. If both parents are unable or unwilling to accept such inheritance the court may, upon the demand of the child or of any of his relatives, authorise the acceptance thereof either by the child himself, if he has attained the age of fourteen years, or otherwise by a special curator to be appointed by the court. (3) Where the surviving spouse has filed the return in respect of property comprised in a chargeable transmission in accordance with the provisions of the Duty on Documents and Transfers Act, such spouse shall be deemed, for the purposes of this article, to have accepted the inheritance devolving upon the minor with the benefit of inventory with respect to such property as shall have been declared in the said return, which inventory shall be deemed to have been duly drawn up and published according to the said return, without the necessity of any further formality or authorization required by any law. Should the parents contrive any of the above-mentioned rules one could petition the court for the act to be nullified with the plea for nullity being only able to be brought forward by a parent, child, heir, or other claiming to be under the child. Conflicting interests Article 139 states that “in case of conflicting interests between the children, or between the children and either parent, the competent court shall, according to circumstances, appoint one or more special curators, provided that it shall be lawful for either parent to decline to represent any of the children against another or against the other parent”. Parents to render accounts of administration Article 140 states that: 140. (1) The parents are bound to render to the child, on the latter attaining majority, an account of the property and the fruits of those things of which they have not the usufruct; and of the property only and of the administration thereof in regard to things of which they have the legal usufruct. (2) If parental authority ceases before the child attains majority the parents shall render the account on the date of such cessation. (3) Without prejudice to any liability of the parent, either parent may render such account on behalf also of the other parent. Parents also enjoy usufruct over any property the child would have gained through succession, donation, or any other gratuitous title, including property derived from entail, except from property where: It was given to the child on condition that the parents or either of them should not have the usufruct, Property given to the child to undertake a career or art, Property given by inheritance, legacy or donation, which was accepted in the interest of the child against the wishes of the parents, Luca J. Camilleri Property by which the child has acquired with his own work. The legal usufruct vested in the parents is subject to all obligations relative to usufructuaries. The legal usufruct enjoyed by the parents is also subject to the payment of any annuity or of any interest on capital fallen due before the commencement of the usufruct. It is also subject to the payment of funeral expenses and those expenses relative to the last illness of the person who previously had the property. This usufruct ceases on the death of the child, on the marriage of the parents, and in any other reason for which parental authority ceases. If one of the spouses dies, then the survivor as already said the parental authority shall vest in the surviving spouse and so is the usufruct of the property. If a spouse remarries, the new spouse shall be liable in solidum with the parent for such administration. Cessation of parental authority Parental authority either ceases or is forfeited. When parental authority ceases it dies a natural death. Forfeiture, on the other hand, is a punitive measure whereby the parent loses it as a consequence of his/her actions. Article 150 states that: 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 attains the age of eighteen years; (c) on the marriage of the child; (d) if the child, with the consent of the parents, has left the parental home and set up a separate domestic establishment; (e) if the parents fail to make, in favour of the child, the registrations referred to in articles 2038 and 2039; so however that where only one parent has failed to make such registration, parental authority shall not cease in relation to the parent who has not so failed; (f) if the surviving parent remarries or, in the case of an adoptive parent, if after the adoption he marries or remarries, without having first made an inventory of the property of the child and obtained from the court the requisite leave to continue in the exercise of the rights of parental authority. This is an exhaustive list with there being no other reasons under which parental authority may cease. The Court may reinstate parental authority under article 151 which reads as follows: “In any of the cases referred to in paragraphs (e) and (f) of the last preceding article, 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”. When a parent may be deprived of parental authority Article 154 reads as follows: 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: Luca J. Camilleri (a) if the parent, exceeding the bounds of reasonable chastisement, ill- treats the child, or neglects his education; (b) if the conduct of the parent is such as to endanger the education of the child; (c) if the parent is interdicted, or under a disability as to certain acts, as provided in articles 520 to 527 inclusive of the Code of Organization and Civil Procedure, and articles 189 and 190 of this Code; (d) if the parent mismanages the property of the child; (e) if the parent fails to perform any of the obligations set out in article 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. (3) The Court may also restrict the exercise of the aforementioned rights where one or both of the parents are charged with one or more of the offences listed in Title VII of Part II of Book First of the Criminal Code. (4) Nevertheless, the court may, even in the cases mentioned in sub-article (1) Note that education is referred to twice at the beginning, emphasising its importance. Parents are capable of reacquiring their forfeited parental authority under article 154(4). When minor carries on trade Article 156 refers to emancipation and states that: “(1) Where a minor, who has attained the age of sixteen years, has been authorized under article 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 matters relating to his trade, or in regard to such acts, be considered as being of age.(2) Nothing in this Code shall affect all other provisions of the Commercial Code, relating to minors and to children subject to parental authority”. III. Filiation Filiation is an exercise in ascertaining parenthood, fatherhood to be exact (mater semper certa est). Filiation has become increasingly common over the years, despite the fact that there was a time during which it was taboo to speak of one’s filiation. There was a major amendment in 2004 which eliminated the distinction between legitimate and illegitimate children (see Carmen Zammit pro u Dr Renzo Porsella Flores et noe et v Wail Dadouch et). There are two main presumptions: The child conceieved in wedlock is held to be the child of the spouses (pater is est quem justae nuptiaedemonstrate) article 67 Mater semper certa est, article 68 Under Roman Law, those children born outside of wedlock were once deemed illegitimate, but this distinction has since been eliminated and at the international level we see article 2 of Luca J. Camilleri the Universal Declaration on Human Rights stating that “motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection”, as well as the introduction of the Convention of the Legal Status of Children Born out of Wedlock. See the following ECHR judgements: Marckx v. Belgium (1979): Here, it was decided that the refusal of Belgian law to recognise the maternal affiliation of an illegitimate child upon birth, or to confer the same patrimonial rights to children of unmarried mothers as 'legitimate' children, violated both unwed mothers' and their children's rights to respect for family life, and were discriminatory, under Articles 8, 14 and Article 1 of Protocol 1 of the European Convention on Human Rights. Inze v. Austria (1987): The European Court of Human Rights held that an Austrian law that gave precedence to "legitimate" children over "illegitimate" children on rights to intestate succession was discriminatory in violation of Article 14 in conjunction with Article 1 of Protocol 1 of the European Convention on Human Rights. Kroon et noe v. Netherlands (1994): The European Court of Human Rights held that a Dutch law which permitted a married man to deny paternity of a child born to the marriage but did not permit a wife to do the same, violated Article 8 of the European Convention of Human Rights. The Court found that the Netherlands maintained a positive obligation under Article 8 to allow complete legal family ties to develop between a son and his natural father, even where the father is not married to the child's mother. Natural Parentage Article 70 concerns who has a right of action, it reads as follows: 70. (1) Any spouse, except for the spouse who gave birth to the child, may bring an action to repudiate a child born in wedlock: (a) if such spouse proves that during the time from the three hundredth day to the one-hundred-and-eightieth day before the birth of the child, such spouse was in the physical impossibility of cohabiting with the spouse who gave birth on account of being away from the said spouse, or some other accident; or (b) if such spouse proves that during the said time such spouse was de facto or legally separated from the spouse who gave birth: Provided that such spouse may not repudiate the child if there has been, during that time, a reunion, even if temporary between the spouses; or (c) if such spouse proves that during the said time such spouse was afflicted by impotency, even if such impotency was only an impotency to generate; or (d) if such spouse proves that during the said time the spouse who gave birth had committed adultery or that, that spouse had concealed the pregnancy and the birth of the child; or (e) if such spouse produces evidence of any other fact which may also be genetic and scientific tests and data that tends to exclude such parenthood. Luca J. Camilleri This states that even a child can bring an action for filiation. The action itself in practice is relatively simple. Until 2015 the Court of Appeal did not accept DNA tests in isolation. Today, once there is a DNA test it is sufficient to establish filiation. Article 70A(2) states that “on the application, mentioned in sub-article (1), of a person entitled to clarify, the Civil Court (Family Section) may require any of the spouses, the child, and the alleged natural parent, as appropriate, to consent to a genetic test of parentage, and to acquiesce to the taking of a genetic 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 parties, the Civil Court (Family Section) must substitute that consent that has not been given and order acquiescence in the taking of a sample”. What is being said here is that the Civil Court must substitute the individual’s consent in the event that no consent is given for the taking of a DNA sample. If the party continuously refuses to give such a sample, the Court will draw inference from this act and essentially interpret this refusal as evidence that the person is the child’s biological parent. There are scenarios where DNA testing may or may not be possible, such as where the parent has left the country and is no longer subject to the jurisdiction of the Maltese courts. Article 70A goes on as follows: (3) In the absence of genetic and scientific evidence, the Civil Court (Family Section) 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 genetic sample, despite being ordered to do so. (4) The Civil Court (Family Section) shall dismiss the application if and as long as the clarification of the natural parentage would result in a considerable adverse effect on the best interests of the minor child, which would be unreasonable for the child, even taking into account the concerns of the person entitled to bring the action. (5) A person who has consented to a genetic test of parentage and has given a genetic sample may require the person entitled to bring the action who has had a parentage test made, to permit inspection of the genetic test of parentage report or to provide a copy. The Civil Court (Family Section) shall decide disputes arising from the claim under sub-article (1). (6) The action mentioned in sub-article (1) shall be decided by virtue of a decree, which decree may be appealed according to the procedure contemplated in article 229(2) of the Code of Organization and Civil Procedure. If the child wishes to open proceedings for a claim of filiation that child has the right to do so but if the action may adversely affect the rights of the child then those rights prevail over the individual claiming filiation. Luca J. Camilleri Article 78 states that “(1) The filiation of children conceived or born in wedlock is proved by the act of birth registered in the Public Registry. (2) It may also be proved by the parochial registers.” Article 79 states that “in default of evidence as provided in the last preceding article, the continued possession of the status of a child conceived or born in wedlock shall be sufficient”. Article 80 states that: 80. (1) Such possession shall be established by a series of facts which, collectively, go to show the connection of filiation and relationship between an individual and the family to which he claims to belong. (2) Such facts are chiefly the following: (a) 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 after 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, education, 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. Article 81 was also used in the past as the immovable object to the unstoppable force which is the DNA test. It states that “(1) No person may claim a status contrary to that which is attributed to him by the act of birth as a child conceived or born in wedlock and the possession of a status in conformity therewith. (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.” See the following cases: Epifanio Vella v. Giuseppe Vella et: The declaration of a wife “mhijiex bizzejjed biex tkun eskluza l-paternita` tar-ragel, ghaliex l-omm tista' tkun ispirata minn sentimenti wisq varji u diversi, intizi, forsi, anki biex jingannaw il-Gustizzja u jahbu l-verità”. The filiation of a child born in wedlock may also be impeached by any person interested if he proves that, during the time from the three-hundredth day to the one-hundred- and eightieth day before the birth of the child the husband was in the physical impossibility of cohabiting with his wife on account of his being away from her. Article 70(1)(a) and 77 talk about physical impossibility. This concept of physical impossibility one day was very strict, and for one to invoke it in court, the physical impossibility had to be of the applicant being abroad for a very long time before the birth, etc. Today Luca J. Camilleri this has changed, extending physical impossibility to apply even when the two parties do not meet in the time that the child was conceived. Raymond Magro et v. Rita Magro et noe: “Wiehed jinnota li l-frazi "jew minhabba xi accident iehor" fl-Artikolu 70(1)(a) ma gietx riprodotta fl-Artikolu 77 tal-Kodici Civili. Apparti din id-differenza, id-dritt ta' azzjoni moghti lit-terz interessat fl-Artikolu 77 u d-dritt ta' azzjoni moghti lir-ragel ta' l-omm fl- Artikolu 70(1)(a) huma fis-sustanza identici, u salv dejjem il-kwistjoni taz-zmien li fih tista' tigi inizjata l-azzjoni skond l- Artikolu 73”. The court said that even if the parties were de facto separated, there wasn’t a physical impossibility of the husband to cohabitate with the wife. The physical impossibility must make it certain that there’s no way the child could be his son. Josianne Giusti Pro et Noe v. Pierre Giusti et: The court held that “Illi fil-meritu jirrizulta illi fiz-zmien li setghet tigi kkoncepita ttarbija l-attrici kellha relazzjoni mal- konvenut Vella fl-istess waqt li f'dak iz-zmien ma kellhiex x'taqsam mar-ragel taghha. Din il-Qorti kif presjeduta rriteniet illi din il-prova hija sufficjenti biex jigi sodisfatt il- kriterju stabbilit fl-Artikolu 77 tal-Kodici Civili). F'dan il- kaz, pero', hemm ukoll il-prova genetika ta' l-ezamijiet medici li jikkonfermaw lill- konvenut bhala l-missier naturali tal-minuri in kwistjoni fi grad ta' 99.99%. Finalment hemm l-ammissjoni ta' l-omm li minkejja li wahedha mhiex bizzejjed (Artikolu 70 (2) tal-Kodici Civili) mehuda ma' dawn ic-cirkostanzi l-ohra telimina kull dubbju f'mohh il- Qorti dwar il-paternita' ta' din it- tarbija.” By virtue of 70(3), the court can ask the parties to go through genetic tests in order to establish paternity. Joseph Vincenti v. Concetta Vincenti et noe: “Il-prova xjentifika jew genetika mhix xi prova assoluta li trid issir ghas-success ta' l- azzjoni. Fil-fatt il-ligi stess tissuggeriha bhala wahda fost "fatti ohra". U allura mhix prova esklussiva. Ghalkemm meta tintalab u jkun hemm rifjut il-qorti tista' tittragga' minn dan l-atteggjament il-konkluzjonijiet li jidhriilha gustifikati (Artikolu 70(3)).” Anna Zammit vs Carmelo Zammit et: The court said that it is resting its decision to repudiate Carmelo’s son on the basis of the biological test even if no other proof existed as to the son in question not being his son. Mizzi v. Malta (Civil Court First Hall (Constitutional) 6 December 1996 Const Court 15.1.2002 ECHR (app 2611/02) 12.1.2006): There may be a violation of human rights where “a legal presumption is allowed to prevail over biological reality” even where the State has an “obligation to secure effective respect for private and family life”. A husband must bring the action to disown the child in 6 months after the birth of the child if he’s in Malta, if he’s not, in 6 months after his return to Malta, or if he’s frauded, after 6 months of him discovering. If the husband dies, his heirs may bring the action of disavowal in 6 months. If he’s of age, the disavowal should be directed against the child if he is a major, and against his curator if he’s a minor. The mother is a party to the suit. Proving Filiation of those Children Born in Wedlock The act of birth proves the child was born in wedlock. The possession of status is to be accompanied by a series of facts, which are the following: The individual had borne the surname of what he always called his father That his father had treated him as a child He was treated as born in wedlock by society He was treated such by the family Luca J. Camilleri No person can claim a status contrary to that attributed to him by the act of birth. Proof to the contrary may be made by evidence tending to show that the claimant is not the child of the woman he alleges to be his mother, or, where the maternity is proved, that he is not the child of the mother’s husband. Of the Filiation of Children Conceived and Born Out of Wedlock Of the two previously mentioned presumptions only the first still applies as we are no longer speaking of husbands and wives. Article 86 states that “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”. If there is a child who has a child and the child is a male he will not be able to acknowledge his child and it will be null if he does so. Article 86A speaks of the right of action and reads as follows: “(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 times make a judicial demand to establish the paternity of the child and for the court to order the registration of such paternity in the relative acts of civil status. (2) The judicial demand referred to in sub-article (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 article 85 will exist”. Article 87 explains how this judicial demand is made, stating that: “(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 after the birth. (2) Any declaration of paternity or maternity made otherwise by either of the parents, or by both, or by a minor, can only be admitted as evidence of filiation in an affiliation suit”. Article 89 concerns a child conceived and born out of wedlock of a spouse, born before or during a marriage, and states that “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”. This provision is somewhat archaic. Article 90 concerns parental authority and reads as follows: 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. (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; Luca J. Camilleri (3) The Court may also restrict the exercise of the aforementioned rights and, in serious cases, exclude both parents from the exercise of these rights. (4) The Court may also restrict the exercise of the aforementioned rights where one or both of the parents are convicted with one or more of the offences listed in Title VII of Part II of Book First of the Criminal Code. Article 90(2) is often applied in cases of rape where a rapist is acknowledged as the father. It is possible for neither person to get rights of parental authority under articles 90(3) and (4). If a child has a father who is then proven not to be the father, the question arises as to whose surname the child will take. According to article 101, “where parents of children conceived and born out of wedlock subsequently marry, or where the court of voluntary jurisdiction so decrees, such children shall be deemed iuris et de iure to have always been conceived or born in wedlock”. Article 110 states that: “(1) Subject to the provisions of article 92(6), a child in whose favour there is a presumption in virtue of a decree of the court shall assume the surname of the parent upon whose demand he shall have been so presumed. (2) Where the presumption 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 after 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 article 4”. Article 92(6) involves the best interests of the child and states that “notwithstanding the previous provisions of this article or of any other article in this Code, where the paternity of a person has been acknowledged, the filiation of a person has been declared by the Court, or the presumption referred to in articles 101 to 112 has been made to apply, any person who in consequence of such acknowledgement, declaration or the application of the presumption is to assume a surname other than the surname used by such a person before such acknowledgement, filiation or application of the presumption, or his legitimate representative, may request the competent court by application against the Director of the Public Registry to be allowed to continue to use such other surname, and the Court if it is satisfied that third parties will not be prejudiced thereby and, where the application has been done on behalf of the minor, that such use shall be in the best interest of the minor, shall accede to such request”. IV. Repudiation The opposite of the exercise of filiation in the sense that paternity is being denied, as opposed to being established. This exercise is important for the intents and purposes of succession, maintenance, and parental authority. The Civil Code states that if there is no cause there is no obligation. When the Husband May Not Repudiate Article 69 reads as follows: Luca J. Camilleri 69. The spouse who has not given birth cannot repudiate a child born before the lapse of one hundred and eighty days after the marriage in any of the following cases: (a) if, before the marriage, such spouse was aware of the pregnancy; (b) if such spouse has made the declaration required for the drawing up of the act of birth, acknowledging oneself to be the parent of the child; (c) if the child be declared not viable. When the Husband May Repudiate Article 70 states that: 70. (1) Any spouse, except for the spouse who gave birth to the child, may bring an action to repudiate a child born in wedlock: (a) if such spouse proves that during the time from the three hundredth day to the one-hundred-and-eightieth day before the birth of the child, such spouse was in the physical impossibility of cohabiting with the spouse who gave birth on account of being away from the said spouse, or some other accident; or (b) if such spouse proves that during the said time such spouse was de facto or legally separated from the spouse who gave birth: (c) Provided that such spouse may not repudiate the child if there has been, during that time, a reunion, even if temporary between the spouses; or if such spouse proves that during the said time such spouse was afflicted by impotency, even if such impotency was only an impotency to generate; or (d) if such spouse proves that during the said time the spouse who gave birth had committed adultery or that, that spouse had concealed the pregnancy and the birth of the child; or (e) if such spouse produces evidence of any other fact which may also be genetic and scientific tests and data that tends to exclude such parenthood. (2) The declaration of the spouse who gave birth to the effect that the other spouse is not the natural parent of the child shall be given consideration in an action regarding the exclusion of the other spouse as parent. (3) When the action referred to in the sub-article (1) is brought, the Civil Court (Family Section) may require any of the spouses, the child, and the alleged natural parent, as appropriate, to consent to a genetic test of parentage, and to acquiesce to the taking of a genetic sample appropriate for the test, which sample must be taken according to the current provisions of the law: Luca J. Camilleri Provided that where the said consent is not given by the parties, the Civil Court (Family Section) must substitute that consent that has not been given and order acquiescence in the taking of a sample. (4) In the absence of genetic and scientific evidence, the Civil Court (Family Section) 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 genetic sample, despite being ordered to do so. (5) The Civil Court (Family Section) shall dismiss the application if and as long as the clarification of the natural parentage would result in a considerable adverse effect on the best interests of the minor child, which would be unreasonable for the child, even taking into account the concerns of the person entitled to bring the action. (6) A person who has consented to a genetic test of parentage and has given a genetic sample may require the person entitled to bring the action who has had a parentage test made, to permit inspection of the genetic test of parentage report or to provide a copy. The Civil Court (Family Section) shall decide disputes arising from the claim under sub- article (1). (7) The action mentioned in this article shall be decided by virtue of a decree, which decree may be appealed according to the procedure contemplated in article 229(2) of the Code of Organization and Civil Procedure. (8) Without prejudice to the provisions of the second proviso of article 73, if in its judgment the Civil Court (Family Section) declares that the spouse is not the natural parent of the child, it shall have effect to change the child’s surname and that of his descendants to reflect the surname of the other spouse only, unless the Court, having regard to all the relevant circumstances, provides otherwise in its judgment. In the case of George Baldacchino vs Jane Baldacchino pro et noe et (FHCC 1650/99 5 October 2001) the Court stated that “in-necessita' tat-testijiet u provi genetici, li f'dan il-kaz ma sarux, huma kwazi imposti fejn l-azzjoni attrici tkun ibbazata fuq is-sub-inciz (c) ta' l-Artikolu 70 (1) tal-Kodici Civili. Mhux hekk invece s-subincizi (a) u (b) ta' dan l-Artikolu illi, jekk issir prova fir- rigward taghhom, tkun sufficjenti biex tirnexxi din l-azzjoni. Din l-istess Qorti, kif presjeduta, f'diversi sentenzi minnha moghtija ricentement iddikjarat illi l-kuncetti ta' "boghod" u "impossibbilita' fizika" kellhom jigu interpretati b'mod illi fejn, mill-provi, rrizulta illi l-partijiet kienu separati anke de facto u ma kellhomx relazzjonijiet intimi fil-perjodu msemmi fl-istess Artikolu 70 (1) (a) allura dawn l-elementi kienu sufficjenti in vista wkoll tal-fatt illi kien l- interess ta' kull persuna koncernata, inkluz persuni minuri, illi tkun maghrufha l-vera paternita' taghhom. Fil-fehma tal-Qorti r-rekwiziti ta' l-istess sub-incizi (a) u (b) ta' l-Artikolu 70 (1) gew ippruvati f'dan ilkaz. Di piu' hemm l-ammissjoni ta' omm it-tarbija u, nonostante, illi din wahedha ma hijiex sufficjenti bhala prova, [Artikolu 70 (2)] hija wkoll prova importanti u, mehuda ma' provi ohra, ghandha tinghata l-piz li jisthoqqilha”. Luca J. Camilleri In the case of Peter Zammit vs Maria Zammit et (FHCC 11 March 1960) the Court stated that “Ghal ragunijiet eminentement ta’ ordni pubbliku, ir-ragel m’ghandux azzjoni ta’ denegata paternita fil-kaz ta’ adulterju tal-mara. Bhala eccezzjoni ghal din ir-regola, l-ligi taghti lir-ragel din l-azzjoni meta l-adulterju jkun akkumpanjat mic-celament lil tat-twelid. Bhala tali, din l- eccezzjoni hija ta’ nterpretazzjoni rigoruza. Biex ir-rekwizit tac-celament ikun assodat irid jigi stabbilit inkontestabbilment li l-mara tkun adoperat ruhha biex zewha ma jkunx jaf bit-twelid. Kif gie stabbiliti mill-Qorti tal-Appell fil- kawza Sbezzo utrinque irid ikun hemm ‘celamento volontario con intenzione positive di occultare la nascita […] e la mancanza partecipazione non importa per se il celamento contemplato dalla legge.’ F’dan il-kaz ma giex pruvat li l-konvenuta hbiet it-twelid tat-tarbija. Ghalkemm hija ma qaletx lill-attur bit-twelid, meta kienet gravida baqghet toqoghod fejn kienet qabel meta kienet mal- attur, distanza zghira minn fejn joqoghod l-attur; baqghet tohrog, kif rawha n-nies, minghajr ma hbiet il-gravidanza, tant li l-attur sar jaf biha; ma ppartorjatx f’xi post straman jew bil-habi imma fid-dar taghha; u hija stess iddikjarat it-tarbija kif jidher mic-certifikat tat-twelid”. Defendants Article 75 reads as follows: 75. (1)The action for disavowal shall be directed - (a) against the child if he is of age; or (b) if the child is a minor or under any disability to be sued, against a curator appointed by the court before which the action is brought: Provided that the court may depute the tutor already appointed to the child. (2) In all cases, the other spouse shall be made a party to the suit. In the case of Mizzi v. Malta the husband sought to dispute the paternity of a child born after he had separated from his wife. Although it had eventually been established that the husband was not the father of the child, under Maltese law at the time, the husband's assumed paternity could not be legally challenged. Many years later, an amendment to the Maltese legislation permitted a spouse to challenge his assumed paternity, but only within certain time limits. The husband was significantly outside those time limits and remained unable to challenge the ruling of paternity. Initially, the Maltese court found that this constituted a breach of the husband's Art 8 rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, but this was overturned on appeal. The European Court of Human Rights held there had been a breach of the husbands Art 6(1) right to access to the court, and of his Art 8 right to respect for his private and family life. The practical impossibility of the husband challenging paternity from the child's birth to the present day had impaired his right of access to the court. While time limits on challenges to paternity could be in the interests of children, such limits should not altogether prevent the use of the legal remedy in question. Luca J. Camilleri The Court noted that at the time of Y’s birth, any action which the applicant could have brought in order to deny paternity would have had little prospect of success, as he would not have been able to prove one of the elements required by former Article 72 § 1 of the Civil Code, namely that the birth of the child had been concealed from him. After the 1993 amendments, when, as noted above, the concealment requirement became only one of the alternative preconditions for bringing such an action, the applicant was time-barred from raising his claim before a court. In fact, in accordance with Article 73(a) of the Civil Code, a husband wishing to disavow a child had to bring his judicial claim within six months from the date of the birth). As Y was born on 4 July 1967, by 1993 this period had expired. Mother’s Decleration Article 70(3) states that “when the action referred to in the sub-article (1) is brought, the Civil Court (Family Section) may require any of the spouses, the child, and the alleged natural parent, as appropriate, to consent to a genetic test of parentage, and to acquiesce to the taking of a genetic 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 parties, the Civil Court (Family Section) must substitute that consent that has not been given and order acquiescence in the taking of a sample”. In the case of AC vs Dr. Beppe Fenech Adami et noe (Family Court 379/2006 27 June 2013) the Court stated that “skond il-konvenuta G, ommha il-konvenuta B D kienet stqarret maghha li l- attur kien igeghla tipprostitwixxi ruhha. Semmitilha wkoll li kellha ‘one night stand’ ma’ persuna bl’isem Spiru u li probabilment dan Spiru kien missierha u mhux l-attur. Fil-fehma tal- Qorti tali dikjarazzjoni tal-omm maghmula lill-bintha tissodisfa dak dispost fis-sub-inciz 2 tal- artikolu 70 appena citat fis-sens li dikjarazzjoni tal-omm li zewgha mhux missier it-tifel taghha “ghandha tinghata konsiderazzjoni” f’kawza ta’ denegata paternita’. Ix-xhieda tal-konvenuta G dwar dak li qaltilha ommha hija l-prova li l-konvenuta D ikkommettiet adulterju fiz-zmien li gie konceputa l-konvenuta G”. Surname Article 70(8) states that “without prejudice to the provisions of the second proviso of article 73, if in its judgment the Civil Court (Family Section) declares that the spouse is not the natural parent of the child, it shall have effect to change the child’s surname and that of his descendants to reflect the surname of the other spouse only, unless the Court, having regard to all the relevant circumstances, provides otherwise in its judgment”. Time Limits Article 73 states that: 73. Where it is competent for the spouses to bring an action to disown a child, they must bring such action: (a) within 6 months from the day of birth, if the spouse was then in Malta; (b) within 6 months of his return to Malta, if the spouse was absent at the time of the birth; (c) within 6 months of the discovery of the fraud, if the birth was concealed: Luca J. Camilleri Provided that, without prejudice to the provisions of article 70(4), the Family Court may, upon an application of any one of the spouses and, if possible, after having heard all the parties interested, and after having considered the rights of the applicant and of the child, at any time authorise the applicant to institute an action to disown a child born in wedlock to the other spouse: Provided further that where an action to disown a child is instituted by one of the spouses after the lapse of the periods stipulated in paragraphs (a), (b) or (c) in accordance with the first proviso to this article, any judgment whereby the child is disowned shall not have the effect of changing the surname of the child or of any other person who took his surname from the child unless the court, upon the demand of any of the parties made either in the sworn application whereby the action is commenced or in a separate application made during the action, provides otherwise. Concealment Baudry-Lacantinerie (Vol. IV. Delle Persone, Par. 490 pg. 420): “Perche vi sia celamento della nascita bisognera che risulti dale circostanze che la moglio ha avuto l’intenzione di nascondere al marito la nascita del figlio. Poiche e soltanto allora che nella sua condotta si puo scorgere una confessione tacita della non paternita del marito”. The concealment of pregnancy and birth ‘puo risultare dal solo silenzio tenuto dalla moglie verso il marito. Non si puo certo farne una regola generale, perche il non annunciare la nascita non e neccessariamente il nasoncerla. Ma ben possono darsi tali circostanze che il silenzio tenuto dalla moglie equivale al celamento. E questione di fatto.’ Grazio Mallia vs Av. Dr. Joseph Cassar Galea et noe (FHCC Vol. XXXV, ii, 491): “Il-fatt tas- separazzjoni materjali tal-kontendenti […] akkopjat mal-fatt li l-attur qatt ma ghix u ghammar ma’ martu ghal 300 gurnata qabel it-twelid tat-tarbija […] fil-fatt ma jistax iwassal ghac- celament tat-twelid tat-tarbija”. Epifanio Vella vs Giuseppa Vella et (COA 19 February 1940): “Ic-celament kontemplat mill- ligi ghandu jkun pruvat b’xi atti posittivi u mhux bis-silenzju tal-omm, ghaliex il-legislatur stess […] stabilixxa fl-ahhar paragrafu fi zmien tliet xhur wara li tkun mikxufa l-frodi; din il-kelma biss turi li l-legislatur stess bil-kelma ‘celament’ kien qieghed jipprevedi atti ta’ frodi da parti tal-mara biex tahbi t-twelid lir-ragel”. Antonio Borg vs Mary Borg noe et (FHCC 28 April 1965): “Huwa dibattut fid-dottrina jekk ic- celament tat-twelid jikkonsisti fis-semplici silenzu tal-omm, specjalment meta l-omm tkun tghix separata minn zewgha, jew inkella jirrikjedix atti posittivi li bihom jigi mohbi lir-ragel it- twelid. Anke jekk wiehed jakkolji t-teorija […] illi c-celament tat-twelid jista’ jirrizulta anki mis- silenzju tal-omm, wiehed m’ghandux id-dritt jikkunsidra dan is-silenzju isolatament mic- cirkostanzi l-ohra kollha. Il-fatt li l-vicini kollha kienu mhux jafu li l-konvenuta kellha t-tfal, imma li stednithom ghal festin tal-maghmudija, illi meta kienet incinta hija kienet tohrog, illi ftit granet wara t-twelid marret irregistrathom hija stess b’mod regolari, illi kienet toqoghod u tohrog il-Belt f’post Luca J. Camilleri popolat, u illi z-zewgha l-attur li kien joqghod ftit mili l-boghod seta’ facilment, li ried, ikun jaf kollox fuqha, specjalment gieli kellem waqt li kienu mifrudin lil ommha jew lit-tfal li kellhom qabel is-separazzjoni, juri bic-car li l-konvenuta, ghalkemm ma avzatx lil zewgha bit-tfal li kellha, ma hbietx it-twelid taghhom. Presumibilment zewgha, li kif qal hu stess ma kienx jinteressah x’taghmel martu ma hassx il- bzonn li jsegwi l-passi taghha u tqanqal biss meta ra illi sejra tfittxu ghall-manteniment tat- tfal. Ghalhekk celament ma kienx hemm”. No Time Limit ACT No. III of 2008: “Provided that, without prejudice to the provisions of article 70(4), the Family Court may, upon an application of any one of the spouses and, if possible, after having heard all the parties interested, and after having considered the rights of the applicant and of the child, at any time authorise the applicant to institute an action to disown a child born in wedlock to the other spouse”. Anthony Grima vs Josianne Grima pro et noe et (COM (Superior Jurisdiction) 32/2010 30 June 2011): “Huwa evidenti li l-attur għamel din il-kawża bis-saħħa tal-proviso introdott flartikolu 73 tal-Kap. 16 wara s-sentenza tal-Qorti Ewropea tad-Drittijiet tal-Bniedem filkawża Maurice Мizzi vs Malta. Dik is-sentenza kienet irrikonoxxiet id-dritt tar-raġel li jimpunja l- filjazzjoni ta` wliedu, anke wara li jkunu skadew it-termini indikati fl-istess artikolu. Għalhekk, u kif hu aċċettat mill-ġurisprudenza lokali, din l-azzjoni hija waħda subordinata għall-artikolu 81. […] Infatti l-liġi tagħna wkoll tagħmel din il-presunzjoni fl-artikolu 67 tal-Kap. 16 : ‘L-iben imnissel matul iż-żwieġ jitqies li hu bin żewġ ommu’. 81. (1) “No person may claim a status contrary to that which is attributed to him by the act of birth as a child conceived or born in wedlock and the possession of a status in conformity therewith”. Imma filkaż in eżami, apparti r-riżultat tal-eżamijiet bijoloġiċi li saru fuq l-attur, il-konvenuta martu u ż-żewġ minuri, li minnhom ħareġ indubbjament illi l-minuri mhumiex l-ulied naturali tal-attur, ma tressqu ebda provi oħra li jistgħu jindikaw illi dawn għandhom xi stat differenti minn dak li jidher fuq iċ- ċertifikati tat-twelid tagħhom. Huwa ovvju f`tali cirkostanzi illi l-attur ma rnexxilux iwaqqa` b`mod sodisfaċenti biżżejjed il- preżunzjoni tal-liġi li toħroġ mill-artikolu 81 tal-Kap. 16, u konsegwentement it-talbiet tiegħu ma jistgħux jiġu milqugħa”. Anthony Grima vs Josianne Grima pro et noe et (FHCC (Constitutional Jurisdiction) constitutional reference 36/2012 - 24 March 2015) – Does the relevant legal presumption breach Article 6 (right to a fair hearing) and Article 8 (right to respect for private and family life) of the Convention? On Article 8 – respect for his private and family life: “Fil-kaz tal-lum, il-presunzjoni legali hija mera tar-realta` familjari u socjali ta` l-minuri Manwela u Marilyn Grima u l-presunzjoni naxxenti minn din ir-realta` m`ghandhiex tigi disturbata minhabba realta` biologika. Din il- Luca J. Camilleri Qorti hija tal-fehma li l-presunzjoni legali hija skond il-ligi ghaliex parti mhijiex prekluza milli tikkontesta l-paternita`. Il-presunzjoni legali ghandha skop legittimu ghaliex qeghda hemm sabiex tipprotegi d-drittijiet u libertajiet tal-minuri u ghalhekk qeghda tissalvagwarda l-ahjar interess taghhom. Il-presunzjoni legali hija wkoll mehtiega f`socjeta demokratika sabiex thares ic-certezza legali fir-relazzjonijiet familjari sabiex l-ahjar interess tat-ulied jipprevali. Ghaldaqstant din il-Qorti ma ssibx illi l-Art 67 u 81(2) tal-Kap 16 qeghdin jilledu d-drittijiet fondamentali ta` Anthony Grima skond l-Art 8 tal-Konvenjoni”. On article 6 – Right to a fair trial: “Fl-ambitu tal-Art 81(2) tal-Kap 16, ma hemm l-ebda prekluzjoni jew ostakolu sabiex parti taccedi ghal qorti. Inoltre b`riferenza ghas-sentenza citata qabel tal-Qorti Civili (Sezzjoni tal-Familja) huwa car li meta l-qrati jigu biex jezaminaw kawza fil-kuntest tal-Art 81(2) tal-Kap 16, jiehdu kont tal-aspetti kollha ta` sitwazzjoni familjari b`referenza wkoll ghal Artikoli 80, 77 u 77A tal-Kap 16. Il-fatt li hemm il-presunzjoni legali m`ghandux ifisser li parti m`ghandhiex access ghal qrati. Ghalhekk din il-Qorti ma ssibx illi l-Art 67 u 81(2) tal-Kap 16 qeghdin jilledu d-drittijiet fondamentali ta` Anthony Grima skond l-Art 6(1) tal-Konvenzjoni”. (Article 73 cont.): “Provided further that where an action to disown a child is instituted by one of the spouses after the lapse of the periods stipulated in paragraphs (a), (b) or (c) in accordance with the first proviso to this article, any judgment whereby the child is disowned shall not have the effect of changing the surname of the child or of any other person who took his surname from the child unless the court, upon the demand of any of the parties made either in the sworn application whereby the action is commenced or in a separate application made during the action, provides otherwise” On surnames: Paul Borg vs Anabel Borg pro et noe (COA 146/2011 27 February 2015): “Din il-Qorti taqbel mal-pozizzjoni li ha d-Direttur appellat. Ma hemmx dubju li t-talba qed issir fl- ahjar interess tal-minuri u l-akkoljiment taghha kif indikat fil-verbal tat-3 ta’ Frar 2015 ma tista’ taghmel hsara jew tkun ta’ pregudizzju ghal hadd. Ta’ min forsi jzid li anke qabel ma saru l-emendi illi ppermettew l-uzu ta’ kunjom l-omm ma’ dak tal-missier, kien hemm kazi fejn il-Qorti (fuq talba talattur jew attrici) awtorizzat annotazzjoni fil-margini tal-att tat-twelid; (vide s-sentenza John Zammit sive Zammit Pace v. Direttur tar-Registru Pubbliku, Qorti tal- Appell deciza fit-2 ta’ Marzu 1994). Naturalment il-Qorti taqbel ukoll li ladarba l-appellanti qed taghmel din it-talba issa, u ma ghamlitiex fl-ewwel istanza, hija ghandha tbati l-ispejjez tal-appell ukoll”. See also: AB vs CD et (Family Court 281/2013 28 May 2015) Heirs Article 74 states that “where any one of the spouses dies without having brought the action for disavowal, but before the expiration of the time provided in article 73(a), (b) or (c), the heirs may bring such action within six months to be reckoned from the day on which the property of the deceased shall have passed into the hands of the child, or from the day on which the heirs shall have been by the child disturbed in the possession of such property”. Action by Natural Father and Mother Luca J. Camilleri Impeachment: Article 76 states that “the filiation of a child born three hundred days after the dissolution or annulment of the marriage may be impeached by any person interested”. See: A B vs Direttur tar-Registru Pubbliku (333/2008 RGM) - 10.07.2013. Article 77 concerns the husband’s physical impossibility of cohabitation and reads as follows: 77. Without prejudice to the provisions of article 81, the filiation of a child born in wedlock may also be impeached by any person interested: (a) if he proves that, during the time from the three- hundredth day to the one-hundred-and-eightieth day before the birth of the child, the husband was in the physical impossibility of cohabiting with his wife on account of his being away from her or some other accident; or (b) if he proves that, during the said time, the wife had committed adultery, and furthermore produces evidence of any other fact which may also be genetic and scientific tests and data that tends to exclude the husband as the natural father of the child. Action of Natural Father Article 77A reads as follows: “without prejudice to the provisions of article 81, any person claiming to be the natural parent of a child born in wedlock, or that person’s heirs if the person was deceased before the child is born, may proceed by sworn application before the competent court against the spouses and child, or their respective heirs if anyone of them is deceased, in order to be declared as the natural parent of the child, and only if that person produces evidence that during the time from the three-hundredth day to the one-hundred- and-eightieth day before the birth of the child, the spouse who gave birth had committed adultery with that person and furthermore produces evidence of any other fact which may also be genetic and scientific tests and data that tends to exclude one of the spouses as the natural parent of the child”. AB vs Direttur tar-Registru Pubbliku et (Family Court 333/2008 10 July 2013 – confirmed on appeal 28 February 2014): “Meta jikkonkorri l-elementi kontemplati flartikolu 81, il-ligi nostrana taghti valur notevoli lill-pussess ta` stat ta` wild imwieled minn koppja mizzewga [...] Mill-kumpless tal-provi imressqa il-Qorti hi tal-fehma illi l-attur ma rnexxielux iressaq provi sufficjenti sabiex jiskossa l-presunzjoni legali mahluqa permezz tal-att tat-twelid tat-tifel. Ghalkemm l-attur ressaq kwantita` enormi ta` provi dokumentarji kif ukoll xhieda sabiex juri li hu missier it-tarbija, il-prova krucjali f`kawzi ta` din ix-xorta ma hiex jekk l-attur hux il-missier naturali tal-minuri izda jekk il-minuri ghandux il-pussess ta` stat ta` iben imwieled fiz- zwieg jew inkella ghandux l-istat ta` tifel imwieled minn mara mizzewga minn relazzjoni extra- matrimonjali. Dawn kellhom ikunu il-provi rilevanti ghal din il-kawza biex tingheleb il- presunzjoni imwaqqfa bl-Artikolu 67”. Action by Mother Article 77B states that: “A judicial demand for a declaration of parenthood as mentioned in the previous article may also be exercised by the parent who gave birth by sworn application before the competent court against the other spouse, the natural parent and the child born in wedlock, provided that the applicant produces evidence that during the time from the three- Luca J. Camilleri hundredth day to the one-hundred-and-eightieth day before the birth of the child that parent had committed adultery with the person who the said parent is demanding to be declared as the natural parent and furthermore produces evidence of any other fact which may also be genetic and scientific tests and data that tends to indicate that person as the natural parent of the child”. Time Limit Article 77C states that: 77C. In the cases referred to in articles 77, 77A and 77B the person claiming to be the natural parent of the child born in wedlock, or the spouse who gave birth as the case may be, may proceed with the action for the declaration of parenthood if their sworn application is filed within six months from the birth of the child: Provided that the Civil Court (Family Section) may, after the sworn application of the person claiming to be the natural parent of the child born in wedlock or the spouse who gave birth and, if possible after having heard all the parties interested, and after having considered the rights of the plaintiff and the child, at any time authorise the person claiming to be the natural parent of the child born in wedlock, or the spouse who gave birth to institute an action for the declaration of parenthood as mentioned in articles 77A and 77B: Provided further that, when the filiation of a person has been declared by the court, any person who in consequence of such declaration is to assume a surname other than the surname used by such person before such declaration, or his legitimate representative, may request the competent court by application against the Director of the Public Registry to be allowed to continue to use such other surname, and the court if it is satisfied that third parties will not be prejudiced thereby and, where the application has been done on behalf of the minor, that such use shall be in the best interest of the minor, shall accede to such request and order the Director to make an annotation of its decision on the relevant act of birth of the person whose filiation has been so declared. A[BA]C v. Direttur tar-Registru Pubbliku et (Family Court 88/2011 30 April 2015): “L-attrici intavolat

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