Last week, the Supreme Court in Italy ruled that a marriage between a man and a woman remains valid even after the man had a sex change, saying the marriage can’t be annulled until Italian authorities recognize civil unions.

Should the same context be shifted to Malta, where civil unions are legal, the marriage would not be dissolved automatically by law; rather, it could be annulled provided the parties provide enough reasons to prove that the marital obligations can’t be abided to.

The case in Italy involved Alessandra Bernaroli, initially known as a man named Alessandro, and his wife, also named Alessandra. The couple got married in 2005 when Bernaroli was still a man. He started the gender transition in 2009 and following surgery, the gender on the legal documents was changed. The civil registry authorities later informed the couple that their marriage has been nullified following Bernaroli’s decision to become a woman.  

However, in this case, the couple did not want to get divorced, and so they presented their case in front of the Italian Supreme Court, which accepted the couple’s argument that they could not be made to divorce against their will, and the marriage remains valid until a civil union law is passed by parliament.

In comments to The Malta Independent, lawyer Veronique Dalli said that should a similar situation take place in Malta, the marriage remains valid and would not be dissolved ipso iure - that is, automatically by operation of the law.  

However the marriage can be annulled in terms of section 19 of the Marriage Act, the chapter which speaks about the ability to procreate and the ability to assume marital obligations entered into. The chapter also speaks about serious psychological anomalies which make it impossible for that one of the parties to fulfill the essential obligations of marriage.

Civil unions in Italy

Following the case in Italy, the Constitutional Court strongly urged the Italian parliament to introduce a form of regulation, generally valid for same-sex couples, which would allow the two women to have protection equivalent to those of marriage.

The court’s decision is being termed as a landmark ruling that could support activists of marriage equality in Italy, a country that lags behind most countries in Europe when it comes to LGBT rights.

Shortly after being elected Italy’s Prime Minister, Matteo Renzi said that he wants to table the civil union bill in parliament by spring 2015.

“The rights will be the same as married heterosexual couples,” Renzi told La Repubblica last year. The only difference, he said, will be that same-sex partners will not be allowed to adopt children outside the union. The bill will also recognize same-sex partnerships contracted outside Italy.