This was an appeal to a judgement delivered by the First Hall, Civil Court in its Constitutional Jurisdiction in November, 2006.

This case involved X who was a Maltese citizen, domiciled and resident in Malta who was married to a Maltese man. She later left him and took up residence in Libya where she converted to Islam, married again and lived with her second husband for 20 years.

About four years ago, X wanted to return to Malta with her husband, however the latter was only granted temporary residence. The Maltese authorities allegedly refused to recognise her marriage to her husband. The Director of Public Registry refused to register her marriage, claiming validity of her previous marriage to a Maltese citizen. The plaintiff had to produce evidence that she was no longer bound by her first marriage and that she was not polygamous, in breach of Maltese public policy.

X claimed a breach of Article 14 of the European Convention on Human Rights, as well as Article 8 of the First Schedule of Chapter 319 of the Laws of Malta. They had a right to be recognised as a married couple. The plaintiffs claimed that they had contracted a marriage by the rites of a universally recognised religion.

Article 33 of the Marriage Act states: A decision of a foreign court on the status of a married person or affecting such status shall be recognised for all purposes of law in Malta if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen.

The plaintiff reiterated that the fact that she was married in Libya meant that her domicile was indeed Libya. However, this was not accepted on the grounds that she remained a Maltese citizen and had ultimately returned to Malta and sought the registration of her marriage in Malta.

The plaintiffs had produced a copy of a certificate that was issued some 20 years after the marriage by the Court of First Instance of South Tripoli which in essence said that X’s first marriage to a Catholic was annulled automatically upon conversion to the Islamic faith and marriage to a Libyan – “…and whereas the spouse has adopted Islamic religion before her concluding her marriage act with the applicant, her former marriage to the Maltese Christian husband, therefore, shall be deemed null and void, and the Islamic legal act of marriage shall substitute the former act of marriage. The procedures of the act of marriage between the convert and in conformity with Islamic law provisions.”

However, the Director of Public Registry claimed that Malta did not recognise such automatic annulment upon conversion of religion. Hence, under Maltese Law, the plaintiff was still married to her first Maltese husband.

The defendant, who was later joined in proceedings by the Director of Public Registry, claimed that the plaintiffs had never produced a judgement by a competent court stating that X’s first marriage was null and had never proved that X was domiciled in Libya.

At First Instance, the plaintiff was found not to have exhausted all ordinary remedies, hence the Court’s constitutional jurisdiction could not be used.

X appealed against the Court’s decision, claiming that there were no ordinary remedies to exhaust. She also claimed that it had contradicted itself by first stating that it had no constitutional jurisdiction to decide the case but had then moved on to examine the merits claim that there was no breach. This Court agreed with the latter allegation and claimed that the Court of First Instance should not have contradicted itself in such a manner.

The Court examined Article 18(b) of the Marriage Act which states that “A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if –

(b) as regards the capacity of the parties, each of the persons to be married is, by the law of the country of his or her respective domicile, capable of contracting marriage.”

The problem seems to have been that, despite the fact that X produced the proper certificates of a competent Court in accordance with Article 33, the Public Registry was not satisfied that, at the time of the contracting of her second marriage, she had the capacity to do so. The Court, however, went on to say that in such cases, where authorities had failed to perform an action such as registration in this case, the ordinary remedy was not to file a Constitutional case but to file an action before the ordinary courts – the First Hall, Civil Court in order to obtain a judgement to achieve the desired effects.

The Court cited Melita Cable plc v. AG et (2006) where it was stated that the ordinary remedies in question had to be adequate, effective and accessible.

The Constitutional Court hence declared that X should exhaust all ordinary remedies that would give her the opportunity to prove her alleged Libyan, as opposed to Maltese domicile, would examine whether the Libyan Court that issued the certificate was indeed a “competent court” within the purview of Article 33 and would ultimately judge whether her first marriage was indeed still valid or not. Hence, the Court rejected the appeal, apart from agreeing that the Court of First Instance wrongly decided on the merits.