A company director filed an application for remedy after she felt “intimidated” and “disgusted” that her divorced marital status, and the name of her ex-husband, were included in a promise of sale for the acquisition of a San Gwann property for her company.

Ultimately, the courts ruled in her favour, found the law requiring women specifically to have their marital status listed, and not men, inconsistent with Malta’s Constitution and Article 8 and 14 of the European Convention on Human Rights which deal with right to privacy and prohibition against discrimination. Madam Justice Lorraine Schembri Orland, presiding over the case, ordered the court judgment be sent to the Speaker of the House and for Parliament to discuss the issue at the earliest.

The case was filed before the First Hall of Civil Court, under Constitutional Jurisdiction, against the Attorney General.

Government notary Keith German testified that the marital status of a women specifically is ordered in the Notarial Profession and Archives Act, under Chapter 55, for the simple reason that when a notary carries out research on a client, to ensure there are no irregularities relevant to the work agreed upon with the client, the notary can ascertain the number of properties purchased by the woman, before and after she was married. Traditionally, women take the name of their husband when getting married, however a growing number of women are opting against this.

He added that he personally lists down marital statuses and information on changes in a surname of men too, for this reason, although this is not required at law.

Answering the court, he said that the system of research is not carried out on the basis of ID card numbers but rather on the basis of relationships because “the computerised system is not ready”.

Background

Marie Therese Cuschieri, who had separated from her husband in 2013 and was then divorced in 2015. In 2015, she proceeded to sign a promise of sale (kunvenju) to acquire a property for the company she worked for, in her capacity as company director.

When it came down to signing the contract, or promise of sale, her divorced marital status, and the name of her ex-husband was listed after her name.

In a sworn affidavit, she wrote that this made her feel extremely uncomfortable and intimidated because in that moment she realised that for her entire life, she would be associated with her ex-husband. She explained that her notary, who was rightfully present when the applicant was signing the promise of sale, told her that the contract would have to list her marital status otherwise it could not be included in the public registry.

In the affidavit, she wrote that the situation had disgusted her to such an extent that at a board meeting she passed a resolution for her son’s name to appear in the contract rather than her own.

Ms Cuschieri wrote that it was completely unacceptable for her to be forced to include her marital status in a contract.

The Attorney General’s office had argued that Ms Cuschieri’s complaints had failed to address how, in practice she had been affected by the inclusion of her status and ex-husband’s name.

The applicant, Ms Cuschieri, had also argued that the proviso necessitating the inclusion of her status was unduly interfering in her private life.

Decision

Madam Justice Schembri Orland, accepted the applicant’s first request and declared that the notarial requirement for a woman’s marital status to be listen is not consistent with the Constitution of Malta, and Articles 8 and 14 of the European Convention on Human Rights. The ECHR defines discrimination as treating differently, without an objective and reasonable justification, persons in similar situations.

The court also declared that Ms Cuschieri’s right to private and family life had been breached and ordered for a copy of the judgment to be sent to the Speaker of the House for the matter to be discussed at the earliest.

It is Parliament that can amend laws, while the courts’ competence is limited to recommending discussions for change after a current law is found to have shortcomings.