FEMFACTS
29 May 2019

The most sexist legal system in Europe?

Online forums in Malta are filled with stories of puzzled women who are routinely ignored by authorities because they are married. Women’s tax returns arrive in their spouse’s name, and social security rules assume men are the breadwinners.

Daiva Repeckaite
Daiva Repeckaite NewsMavens, Malta
The most sexist legal system in Europe? - NewsMavens
Statue of Justitia, PixaBay

A closer look at a number of Malta's laws shows that although they continue to be amended, the Parliament has not bothered to remove some provisions that are specific to one gender -- and they always assume that women are not breadwinners. The peculiar mixture of continental law and British common law in Malta’s legal system forms a whole that is dysfunctional and obsolete. 

Concerning cases

In 2015, Malta’s Criminal Code made international headlines in Marie Claire and The Daily Beast (search engines find the Marie Claire article was published online in 2016). The articles stated that abduction perpetrators can escape punishment if they marry their victim, but, reminded of this anachronism, local press focused on the risk to the country’s reputation: “The article in this month’s edition gives the impression that in Malta, men sling their abductee over their shoulders, throw them in a waiting getaway car and drive to the marriage registry to get married,” the Times of Malta reported. The newspaper asked a lawyer to comment, and the latter explained that the victim can still seek legal redress, and, in her conclusion, “the Marie Claire article was “completely off track”.

Women also face an uphill struggle as they strive for financial independence from men. Marie Therese Cuschieri won a case in 2017 before the First Hall of the Civil Court, in its Constitutional Jurisdiction, objecting to a legal requirement in the Notarial Profession and Notarial Archives Act to indicate her marital status and add the name of her ex husband in property purchase documents. Predictably, men are conveniently exempted from such provisions.

Without indicating these private details, women cannot have their contracts included in the public registry, even though Cuschieri was buying property for her company, as its director. What is the purpose of this provision? As reported by Malta Today, it is “to make it easier for notaries to carry out searches about a client”, as it is customary for women to change names along with changes in their marital status. It turns out that in Malta, a country that toyed with the idea of putting some of its registries on blockchain and advertised itself as a blockchain island and technology hub, notarial registries are not computerized. So searches rely on family ties rather than ID numbers.

What are the facts

Abduction

The current Criminal Code no longer contains the abovementioned controversial provision on reducing the sentence for abduction by marrying the victim. The amendment, however, was made in April 2018, and Malta adopted it to implement the Istanbul Convention. This is a reminder for conservatives out there of the real and tangible impact of the convention. The article 200 of the Criminal Code, now deleted, is captured, for example, on the Equality Now website as quoted in the Times of Malta article: “[i]f the offender, after abducting a person, shall marry such person, he shall not be liable to prosecution, except on the complaint of the party whose consent, according to the civil laws, would be required for the marriage; and if the marriage takes place after the conviction, the penal consequences thereof shall cease and the party convicted shall, upon his application, be forthwith released by order of the court.” Although the lawyer quoted by the Times of Malta states that the marriage can be annulled if non-consensual, it still requires the victim to seek redress and file a complaint after the fact. Forced marriage was criminalized in Malta in 2014. As it was, Article 200 left ample space for perpetrators to bully or otherwise force their victims into marriage in order to escape justice.

Marital status in property purchases

Despite the court ruling in Cuschieri’s favor, Article 28 in the Notarial Profession and Notarial Archives Act still states that “where any of the parties to the Act is a woman, it shall also be stated whether she is a spinster, a married woman or a widow.” The judgment was handed down to the parliament, but, although the act was amended twice in 2018, after the judgment the parliament did not bother to remove the discriminatory provision.

According to legal expert Dr Katya Vassallo, “Divorce in Malta was introduced in 2011. In cases of separation the contract would state that the parties are free to contract on their own.” In other words, the law only covers marital statuses available to women before the change -- divorcees are not mentioned. “The notary is not obliged to put down that she is separated as the contract of separation would clearly state that she is free to contract in her own name now and not with her spouse’s consent,” Dr Vassallo notes.

Divorce is only available when spouses can prove that they have not lived together for four years, and “there is no reasonable prospect of reconciliation" (article 66B in the Civil Code). If the spouses are not separated by a contract or a court judgment, an advocate assisting the person applying for divorce is obliged to discuss reconciliation before they start the procedure. And while the law makes exceptions if domestic violence is involved in the case of separation, no such provisions exist if the spouses directly apply for divorce. In 1993, an amendment to the Civil Code removed separate clauses for separation, depending if it was initiated by a man or a woman.

And what’s more…

The institution of dowry was officially abolished in 1993, but there still are references to dowries in the Civil Code. According to the Civil Code title 1 article 27, the obligation of any person, including family members, to supply maintenance to another individual ceases when the latter marries, assuming that marriage cancels out any existing financial liabilities.

In many official matters, provisions assume women’s financial dependence or secondary role as breadwinners. On social security contributions, the government website informs: the contributions are “€29.41 or 15% of the annual net earnings if the person is a part-time self-occupied woman or a full-time student who has not reached the age of 24 who is a part-time self-occupied person or a pensioner who is a part-time self-occupied person whose annual whose annual net earnings do not exceed €10,194.” Women are automatically placed next to social statuses of people who may be financially challenged. The basis for this is the Social Security Act article 17.

Inequality in old age only increases. The Pensions Ordinance assumes that men receive a pension: for persons employed in any public department, “(3) If any such person’s wife predeceases him, or if no pension is granted to her under this article, [...] if a pension had been granted to the widow, gratuities may be granted to them of twice the amount of the gratuities for which they would have been eligible in the circumstances. (4) If the deceased does not leave a widow or motherless children, but leaves a mother who was wholly dependent on him for maintenance, the award which might have been made to the widow had there been one left, may be made to the mother”. There is no mention of widowers or fathers, but the document’s article 17 is specific to female officers: “Where a female officer, having served for not less than five years in any public department [...] resigns her office for the reason that she has married or is about to marry, a gratuity may be granted”. It looks like the law just stayed like this from the time when female employment and dual breadwinner families were uncommon. Although the law was amended as recently as this year, the gender-specific provisions are still there.

The Widows’ and Orphans’ Pensions Act lists public officers who are excluded from contributions (article 5): presidents of Malta, members of the clergy and… “women, with the exception of those who, when first appointed to the service, were widows with children.” Contributors are also obliged to inform the social security authority of the details of their wife (article 13), and marriage of female children under the age of 21.

Furthermore, the Maltese Citizenship Act establishes that a married woman is automatically considered to be an adult for the purposes of naturalization, renunciation and deprivation of citizenship (article 16). The legal age for marriage in Malta is 16, which can lower the age of legal maturity for teenagers in citizenship matters.

Existing laws can be challenged through the superiority of the constitution -- or with a landmark judgment, says Dr Vassallo. For this to happen, women in Malta will have to challenge sexist laws in the courts -- not only on Facebook.

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