Filiation of children under Maltese law

Abstract

Family Law in Malta is in a state of flux. Whereas the basic provisions relating to paternity and filiation still rely on presumptions - the most important of which dates back to Roman Law - science is making huge strides forward and DNA genetic tests are providing answers to a number of queries, which up to a few years ago could be answered, for want of a better answer, by a cliché: "Because the law says so!". Lawyers are increasingly being confronted with situations where the parameters of the law are not matching biological reality. Ironically enough, the courts - which should be applying the law - sometimes end up not following the law by deciding cases according to DNA test results. This situation would certainly have not even been dreamt of a few years ago. Indeed, where in a particular case the local courts applied the law as it stands - and rejected the claims of the plaintiff - the latter had recourse to the European Court of Human Rights which decided that there had been a breach of his fundamental rights. This brings to the fore the dilemma facing the Maltese courts: should legal presumptions continue to prevail over biological reality? These presumptions and the manner how our courts are applying them are considered in detail in this thesis. A chapter is dedicated to foreign legislation in comparison with Maltese Law.