Changing surnames : a study of Act LXV of 2020

Abstract

The right to identity is a fundamental human right which affords the ability to every individual of enjoying all fundamental human rights. This dissertation begins providing a foundation on basic notions such as marriage, act of birth, and divorce. It continues by analysing judgements delivered by the European Court of Human Rights in relation to violations of Article 8 and Article 14, and the Court of Justice of the European Union in relation to surnames. The third part is a limited comparative analysis of the Maltese position prior to the coming into force of Act LXV 2020. The amendments by Act XXIII of 2017 amended the Marriage Act to a more equal footing between spouses, however, there was still an element of discrimination which was then addressed with the 2020 amendments. Prior to these amendments, Malta imposed the transfer of the paternal surname on the wife, and all descendants, and distinguished between children born in wedlock or out of wedlock, both matters effectively breaching Article 8 of the European Convention on Human Rights, specifically, the right to non-discrimination. Whilst the new system post-amendments is to be applauded, due to the rudimentary nature of the current procedure, some lacunae were identified, such as the problem in notarial searches after an individual changes both name and surname. Another identified lacuna is that the current provisions do not take into consideration the different types and situations of families and provide no remedy for prejudiced parents since there is no possibility of a parent contesting the change of surname of the child.