Currently, our family law is supposedly based on the principle of gender equality. However, despite this foundation, both formal and substantive discrimination persist. It is imperative to apply a feminist perspective to identify where the law and the courts uphold or challenge traditional gender roles and power dynamics.

Equality between women and men is one of the EU's fundamental values, and promoting it is an obligation enshrined in the Treaty. In 2020, the European Commission (EC) launched the Gender Equality Strategy 2020-2025, titled a 'Union of Equity'.

In 2023, Malta slipped one spot in the Gender Equality Index to 14th place among the 27 EU states, well below average when measuring how power is spread between genders. While Malta's National Commission for the Promotion of Equality witnessed commendable progress in certain domains, it also recognised the persistent challenges that require the country's collective attention and commitment.

Although Malta often perceives itself as fully committed to formal equality and well-positioned in rankings assessing substantive discrimination within family households, most of the discrimination that women face today stems from violations of the principle of substantive equality. There are still strong vestiges of the traditional gender role dictating that women bear a disproportionate burden of care responsibilities for children, dependent relatives and domestic work. Despite a shift towards a dual-earner household model, this work remains largely invisible, undervalued in terms of its importance and lacking in economic recognition.

For example, under our civil law, the community of acquests system is set as the default matrimonial regime to recognise the value of domestic work within the family. The aim is to provide greater financial protection for the spouse without an independent income.

However, the result has fallen short of expectations due to some factors, including the complexities involved in managing and dividing joint property. In addition, the ease of choosing a separate property, which is now preferred by the majority of couples entering into marriage regardless of their income level, has contributed to this outcome.

Again, our divorce legislation that prioritises the autonomy and independence of each spouse and gender-neutral custody arrangements may work well in a social context where both partners share family responsibilities and are dual earners. However, it may exacerbate the economic and social challenges faced by divorced wives and mothers in a country where gender inequalities in household management are still significant.

In addition, an intersectional approach, which considers the interplay of multiple intersecting identities and factors when addressing legal issues related to family and domestic matters, recognises that women's experiences and rights may differ based on different factors.

For example, intersectionality is critical in child custody and child support cases because it shows that the best interests of the child must be considered in the context of various intersecting factors (such as income, employment opportunities and caregiving responsibilities) that may affect the child's well-being and the parents' ability to provide care and support.

Indeed, the best interests of the child require that custody arrangements are made on the basis of the quality of the child's relationship with each parent and not on the basis of their standard of living after divorce, which may be influenced by disparities in wealth, often based on gender discrimination against women in the acquisition of property.

Ours is an existing tension in family law between modernity and tradition. In particular, progressive legislation has facilitated faster personal separations and divorces, and civil mechanisms to combat gender-based violence were strengthened with various legislative enactments.

Nevertheless, Malta still faces a scenario in which family structures continue to place a disproportionate burden on women, who are assigned the primary responsibility for caring for children and managing the household.

In light of these remaining gender inequalities still roaming within a general legislative, social and political framework of gender equality, in 2022, the government launched the first Gender Equality and Mainstreaming Strategy & Action Plan 2022-2027, following extensive consultation with all stakeholders. This document marked an important milestone in Malta's efforts to achieve full gender equality in all spheres of life since, for the first time, it proposes a cohesive, mainstreamed approach to the hurdles faced by individuals in Malta, particularly women.

That plan recognises that while significant progress has been made, our country's goal of ensuring the advancement and empowerment of women and men equally remains distant.

This also clearly results from the National Strategy for Poverty Reduction and Social Inclusion 2025-2035. From statistics therein given, for example, women persistently face greater socio-economic challenges and higher levels of poverty than men in all age categories. Women generally engage in more precarious work contracts, such as part-time, low-paid, and fixed-term contracts.

This is partly due to the disproportionate home childcare work that requires more flexibility for women. Women also occupy a large share of jobs in the informal economy, which tends to have fewer labour rights, less social protection and other fundamental benefits. For some groups of women, the risk of poverty and social exclusion is even higher, including single mothers, women above the age of 65 and women who are divorced or separated late in life, among others.

The achievement of equality remains a significant challenge. The existence of both formal and substantive equality is essential to the promotion of fairness, equality and justice, particularly in family law.

Moreover, the Maltese context still holds barriers for women in the labour market, as patriarchal expectations remain, as well as the glass ceiling in decision-making processes.

Dr Mark Said is a lawyer