Family Law

Paternity has been always thought of as naturally unclear, as opposed to the apparent and uncomplicated fact of maternity. In certain circumstances, the birth certificate may not necessarily reflect the names of the parents of the individual.

There may be cases of children born out of wedlock whose birth certificate vis-à-vis the father reads ‘Father Unknown’ when as a matter of fact the father will be known. Both the mother and the child may institute judicial proceedings against the potential father. The ‘potential father’ may also file also judicial proceeding to amend the birth certificate.

In other instances, when a child is born in wedlock, the mother’s husband is legally presumed to be the father and listed as such on the birth certificate even though there may be instances where the husband is not the actual father. This paternity presumption can be overturned only through judicial action, which action may only be initiated by a certain group of people expressly stipulated by law, in a few instances described at law.

Parental authority is established once the parent is recognised in the minor’s birth certificate. It is the authority of a parent over his minor child, Such authority enables the parent to take all decisions relating to the child particularly those relating to the residence, access, travel, maintenance, and education. This authority is exercised by common accord of both parents.

A soon as a child is born, the biological mother is immediately vested with parental responsibility over her child. The mother’s husband is also vested with such authority upon the birth of a child in wedlock. However, such presumption does not apply to a father who is not married to the mother. In those cases where the father, at birth, fails to recognise the minor as his child the father may subsequently file proceedings in Court against the mother in order to recognise the child as his so that he would be able to exercise parental responsibility.

Maintenance is an allowance which is paid between spouses or by parents to their children. Under Maltese law, the term ‘maintenance’ includes food, clothing, health and habitation, and when dealing with children, this also includes educational expenses. Our law does not stipulate the amount of maintenance that a person needs to pay to his spouses or child. Domestically, the amount of maintenance due shall be taken in proportion to the want of the person claiming maintenance and the means of the person liable to supply maintenance.

Parents are obliged to maintain their children until they reach majority. However, if the children continue attending full-time education or training, maintenance is to be paid until the children reach the age of twenty-three years. In cases where the children suffer from a disability and consequently they are unable to maintain themselves, the parents are obliged to continue to maintain their children.

The term ‘engagement’ from a legal viewpoint refers to a promise to marry another person. Even though nowadays it is not common for parties to enter into a formal promise of marriage, our law dictates that if a person agrees to enter into a promise of marriage and unlawfully refuses to perform such promise, the injured party would be entitled to material and moral damages provided that there would be no sufficient justification for cancellation of marriage. The right to claim damages after a broken engagement is not limited to the actual parties in the relationship. As a matter of fact, third parties who prove that they have suffered damages as a result of the breach of promise of marriage will also have a right to compensation.

The party who breaks off the engagement without good cause must return all gifts or donations received in view of the proposed marriage without the right to claim back those that he/she had given for the same reason.

Our law promotes the unity and stability of the family. A marriage is the union of spouses who are obliged to lead a common life. Spouses have equal rights and equal responsibilities during marriage. They owe each other fidelity, moral and material support. Both spouses are bound, each in proportion to its means and 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. Marriage also 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.

Separation may take place either by a demand of one of the spouses or by mutual consent. The law provides that separation is justified in cases of adultery, excesses, cruelty, threats, or grievous injury on the other spouse or against any of the children, abandonment, or on the ground that the spouses cannot reasonably live together as their marriage has irretrievably broken down.

Prior to the separation proceedings, parties have to undergo the process of mediation. Through the mediation process, the mediator would try to reconcile the parties. Subsequently, if such reconciliation attempts fail, the parties would then try to reach an amicable settlement about the separation.

In order to apply for a divorce, Maltese law stipulates three requisites. These are:

1) Parties must have lived apart for at least 6 months, if the application is filed by both spouses, or for at least one year, if the divorce proceeding is made against the other spouse.

Nevertheless, if spouses are already separated by means of a contract or court judgment, then spouses may commence divorce proceedings immediately.

2) Spouses do not have reasonable prospect of reconciliation; and

3) Spouses and children are receiving adequate maintenance.

It can be extremely difficult for separating couples with children to reach an agreement about the care and custody, access and maintenance of their children. In certain cases, parents who are unable to agree on such matters resort to Court intervention to establish an order suitable for the family needs. What happens when this order is breached?

Anyone who fails to observe such court order, may be held criminally liable. It is an offence against public order that a person, who is ordered by a court or bound by contract, fails to pay the other person maintenance to the spouse or to his children within 15 days from the day on which such maintenance is due. Similarly, it is also a criminal offence, if a person is ordered by court or bound by contract to allow access to the children in his custody refuses such access without just cause.

Guardianship is a legal relationship between a person who suffers from a mental disorder or any other condition, and another person called the Guardian. A person applies for guardianship when an adult suffers from any condition which renders him incapable of taking care of his own affairs. The purpose of Guardianship is to provide support to the person in managing his or her own affairs and to advocate for his or her rights and best interests.

According to the law, the request for Guardianship can be made by: (1) the person with a disability or mental disorder who wishes to have a Guardian appointed, (2) spouses of persons with disability or mental disorder, (3) relatives of persons with disability or mental disorder and (4) the Attorney General.

Interdiction has more serious implications than incapacitation. Incapacitation refers to those instances where the incapacitated person cannot sue or be sued or administer property. Interdiction entails another dimension to these restrictions, as the interdicted person would not be able to exercise ordinary acts of administration. In the latter case, the curator would be the sole decider regarding the person’s civil issues. Interdiction and incapacitation may be requested by the spouse, relatives of the person involved, relatives related by affinity to the person whose interdiction or incapacitation is demanded and who may be called to supply maintenance to the person, and the attorney general.

Interdiction and incapacitation orders can be converted to guardianship orders, which have far less legal implications whilst encouraging the person to be independent by enabling and assisting him/her when it comes to the exercise of legal capacity.

Adoptions are a particularly sensitive subject due to the severing of legal ties with the natural family and the consolidation of new legal ties with the adoptive family. There are various criteria which one is to adhere to in order to be able to adopt a child. These requirements are enshrined to ensure that the adoptee will find a caring family. For adoption in Malta, prospective adopter must be at least 28 years and with an age gap of at least 21 years but not more than 45 years between him and the prospective adoptee.

Child abduction have serious consequences both on the child and the left-behind parent. An abduction or in layman’s terms the illicit removal of a child, takes place when any person removes the child from the child’s place of residence. The elements for abduction are the following: (1) the child was removed from the place in which he lived for a considerable period of time and which felt home, (2) the child was taken away without consent and/or authorisation from the other parent, and (3) the return of the child to such residence would not present significant risk to the child’s wellbeing.