The making and breaking of marriages and civil unions : is Maltese legislation consistent with European Developments?

Abstract

The only intimate relationship that Maltese law recognises is marriage and to Maltese law marriage is heterosexual and indissoluble. In all the other European States marriage is dissoluble. In some of them marriage is also homosexual. Malta does not have civil unions legislation like most European States. Politically and economically Malta has teamed up with Europe both as a Convention Member on Human Rights and as a European Union Member State. The European Convention on Human Rights does not contain a definition of what constitutes family, but the European Court of Human Rights (ECtHR) is recognising the right for transsexuals to marry. The European Union provides a definition of family in Directive 38/2004 and has enacted various Regulations to facilitate Free Movement of Persons. This thesis seeks to pose the inevitable questions before the Maltese Legislator. By keeping aback from legalising social change, isn't Malta depriving its citizens from the European Convention on Human Rights to respect for private and family life, to the right to marry and to non-discrimination? By debarring even foreign nationals and domiciliaries recognition of their civil union or homosexual marital home-country rights, isn't Malta impinging on the European Union right to free movement of persons? This research is an introspection at the status-quo. The answer to the recurrent question as to whether Maltese law is consistent with European developments becomes clear with the unfolding of the research. The research examines whether Malta can keep its moral sovereignty whilst resolving inter-State conflicts on the recognition of non-traditional unions. A modest reform could be the enactment of civil unions legislation. The Appendix to the Act would incorporate a schedule of the European registered partnerships that will be recognised in Malta. A reservation could be negotiated with the EU on the incompatibility of same-sex matrimony with Malta's Public Policy.