An analysis of the discrimination against the surviving members of the family of the deceased before and after the 2004 amendments

Abstract

The law of succession is one of the biggest branches of the law; encapsulating within it fundamental issues, especially those regarding the law of inheritance and all matters pertaining to it. This dissertation aims to bring to the forefront the inconsistencies within the provisions of the law, which allow room for discrimination between the surviving members of the family of the deceased in light of the right to inherit. This shall be done through analysing the provisions of the Maltese Civil Code before and after the enactment of Act XVIII of 2004, which intended to obliterate this discrimination between the rights of legitimate and illegitimate children, adopted children, children of second or subsequent marriages, the surviving spouse and the spouse of a second or subsequent marriage. The first chapter provides for an introduction to the topic and gives a brief overview of the central themes of the remaining chapters. Chapter II is a study of the situation prior to the amendments of 2004; examining the roots of the provisions of the Civil Code and the prejudice arising from such provisions. The purpose of the third chapter is to analyse the strengths and weaknesses of the previous provisions when compared to the new provisions after the coming into force of Act XVIII. This chapter also examines whether Maltese legislation is a reflection of the European laws and conventions in light of the fundamental human rights. Subsequently, the next chapter is a study of the methodology used in order to conduct the research for this dissertation. In its essence, the law of succession affects other areas of the law which can also result in disputes regarding succession. The concluding remarks portray the situation today – how the law has matured, mirroring the modern society, but also allowing room for lacunae which still need to be clarified by the courts.