GREEN AND FARHAT v. MALTA

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38797/07
by Mary GREEN and Ajad FARHAT
against Malta

The European Court of Human Rights (Fourth Section), sitting on 6 July 2010 as a Chamber composed of:

Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 2 September 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Mary Green and Mr Ajad Farhat, are Maltese nationals who were born in 1959 and 1948 respectively and currently live in Marsa, Malta. They were represented before the Court by Dr J. Brincat, a lawyer practising in Malta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri, Attorney General.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

The first applicant married Mr X, a Maltese citizen, on 19 June 1978 according to the rites of the Catholic Church and in conformity with Maltese law.

In 1980 she went to Libya. She converted to Islam by means of a declaration. As a result of this declaration the first marriage was deemed to be null and void and consequently she was given permission by a Libyan court to marry under the law of Libya.

On 7 August 1980 she married the second applicant, according to the rites of Islam. The applicants settled in Libya where they established their matrimonial domicile and lived there, lawfully married, for twenty years.

In 1994 the first applicant went to the Public Registry in Malta and filled in an application requesting registration of her wish to revert to her maiden name, in accordance with Article 4 of the Civil Code. She did not inform the Public Registry that she had divorced Mr X or that she had obtained an annulment of that marriage. On 19 May 1994 the applicant’s request was granted.

In 2000 the applicants returned to Malta to take care of the first applicant’s father. The first applicant made several attempts to register her new marriage under Article 244 (1) of the Civil Code (see Relevant domestic law) in accordance with the principle of lex loci contractus. This registration would have allowed the second applicant to reside in Malta without the need for a visa. It would have granted him the status of an exempt person under the Immigration Act on the basis that he lived with and was married to a Maltese national.

The first applicant based her requests on a document dated 30 January 2001 and 22 September 2002, issued by the Court of First Instance of South Tripoli. According to this document, her previous marriage had been declared null and void upon her conversion to Islam and her marriage to a Muslim man.

However, the Director of the Public Registry refused to register the marriage. The first applicant had failed to prove that she had legally released herself from the obligations of her first marriage by providing a court decision demonstrating that it had been annulled or that she had divorced and that her second marriage had not been polygamous, and therefore contrary to Maltese public policy. Moreover, she had failed in the alternative to prove that she was domiciled in Libya since she had retained her Maltese citizenship and had indeed returned to Malta after twenty years.

She was informed that it was necessary for her to prove that, before contracting her second marriage, she had been released from her previous marriage in accordance with the provisions of Maltese law regarding capacity to marry (see section 18 (b) of the Marriage Act). She was therefore advised to produce the exequatur of a Maltese court ordering the Director of the Public Registry to register the alleged annulment or divorce obtained, thus allowing him to register her second marriage.

In the meantime the first applicant’s father passed away in 2001. However, the applicants remained in Malta to take care of the first applicant’s mother. Meanwhile, the second applicant’s visa was renewed on a concessionary basis.

2. Proceedings before the Civil Court

On 1 June 2004 the applicants instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. Invoking Articles 8 and 14 of the Convention, they claimed that the refusal to register their marriage amounted to a breach of their rights and that Maltese marriage law discriminated against Islam. They argued that marriages celebrated anywhere according to the rites of the Catholic Church were easily recognised, but not marriages contracted under other religions. Similarly, any annulment of a marriage by the Catholic Church (including the dispensation of the Holy Pontiff and the “Privilegum Paulinum”) was endorsed for Catholics under Maltese law.

On 29 November 2006 the Civil Court dismissed the applicants’ claims for non-exhaustion of ordinary remedies as the first applicant had not brought an action before the Civil Court in accordance with section 33 of the Marriage Act to prove that her first marriage was null and void. However, the court considered the complaints manifestly ill-founded since she had failed to prove her domicile, which was necessary for section 33 of the Marriage Act to apply. She was a citizen of Malta and Maltese law did not recognise divorce on religious grounds. Indeed, under section 24 of the Marriage Act, a decision declaring a Catholic marriage null and void was not automatically registered. In particular, one of the prerequisites was the participation of the spouses during the proceedings. However, in the present case Mr X was totally unaware of any proceedings. Moreover, it was for the national legislation to lay down rules regarding the validity of marriages in pursuance of the State’s public policy, and, therefore, no violation of Article 8 could arise in the present case. Lastly, the court noted that the applicants had failed to prove that they had suffered discrimination vis a vis someone in an analogous situation on one of the grounds mentioned in Article 14 of the Convention.

3. Proceedings before the Constitutional Court

The applicants appealed. By a judgment of 13 April 2007 the Constitutional Court upheld the appeal in part. While revoking the part of the judgment dismissing the merits, it reaffirmed that the applicants had failed to make use of the ordinary remedy provided by law, namely instituting proceedings before the Civil Court in its ordinary jurisdiction, which could have ordered the registration of the marriage if the requisite criteria had been fulfilled.

4. After communication of the application

On 5 July 2008 Mr X, the applicant’s first husband, passed away. On the basis that there were no longer any impediments to the first applicant’s remarriage the applicants attempted to obtain a marriage licence in Malta in order to remarry there. To proceed with such a licence they allegedly were requested to provide proof of a divorce in respect of their marriage contracted in Libya.

B. Relevant domestic law and practice

1. In respect of registration of marriages

In accordance with Article 244 (1) of the Civil Code, Chapter 16 of the Laws of Malta, any marriage of a citizen of Malta drawn up or registered in a foreign country by a competent authority in that country, may, at the request of any interested person and upon the Director of the Public Registry being satisfied of the authenticity of such act, be registered in the Maltese Islands.

In this respect, Article 242 of the Civil Code reads as follows:

“(1) The Director shall not receive any act which is not written in clear and legible characters, or which contains abbreviations, or which may appear to him to be otherwise defective or irregular.

(2) In any such case, the act shall be presented by the Director to one of the Visitors of notarial acts, who, after hearing, if necessary, the person who had made the act, shall determine the manner in which, according to law, the act is to be drawn up.

(3) The Director may not refuse to receive any act which is countersigned by one of the said Visitors.”

The Marriage Act 1975 (“the Act”), Chapter 255 of the Laws of Malta, applies to all marriages whether contracted in a civil or religious form. The Act, in so far as relevant reads as follows:

Section 11

“(2) A marriage, whether contracted in a civil or in a religious form, shall be valid only if all the provisions of this Act applicable thereto or to marriage generally are satisfied or observed.

Section 18

A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if –

(a) as regards the formalities thereof, the formalities required for its validity by the law of the country where the marriage is celebrated are observed; and

(b) as regards the capacity of the parties, each of the persons to be married is, by the law of the country of his or her respective domicile, capable of contracting marriage.

Section 33

A decision of a foreign court on the status of a married person or affecting such status shall be recognised for all purposes of law in Malta if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen.”

2. In respect of Catholic marriages

In so far as relevant, the Marriage Act provides as follows:

Section 21

“ (1) A marriage celebrated in Malta after the coming into force of this section, in accordance with the norms and formalities established by Canon Law, shall as from the moment of its celebration, be recognised and have the same civil effects as a marriage celebrated in accordance with the norms and formalities of this Act.

Section 23

 (1) A decision which has become executive, given by a tribunal, and declaring the nullity of a Catholic marriage shall, where one of the parties is domiciled in, or a citizen of, Malta, and subject to the provisions of section 24, be recognised and upon its registration in accordance with the said section 24, shall have effect as if it were a decision by a court and which has become res judicata.

Section 24

 (1) Registration of a decision as referred to in section 23 shall be effected by the Court of Appeal.

...

(5) The Court of Appeal registers that decision by giving a decree declaring the decision enforceable in Malta; such decree shall not be given unless the Court of Appeal is satisfied that:

(i) the Tribunal was competent to judge the case of nullity of the marriage insofar as the marriage was a Catholic marriage; and

(ii) during and in the proceedings before the Tribunal there was assured to the parties the right of action and defence in a manner substantially not dissimilar to the principles of the Constitution of Malta; and

(iii) there does not exist a contrary judgment binding the parties pronounced by a court, and which has become res judicata, based on the same grounds of nullity; and

(iv) in the case of a marriage celebrated in Malta after 11 August 1975, there has been delivered or transmitted to the Public Registry the act of marriage laid down by this Act; and ...

Section 25

A decree given by the Roman Pontiff "super matrimonio rato et non consummato", when one of the spouses is domiciled in or is a citizen of Malta, shall, subject to the provisions of section 26, be recognised and upon its registration in accordance with the said section 26, shall have effect as if it were a decision given by a court and which has become res judicata annulling a marriage on the grounds of non-consummation, in accordance with section 19A.

Section 26

...

(4) (a) Registration shall be effected by an order of the Court of Appeal declaring the decree of the Roman Pontiff enforceable in Malta.

(b) The Court of Appeal shall register the decree if it is satisfied that it refers to a Catholic marriage which was celebrated after the coming into force of this section and either of the spouses is domiciled in or is a citizen of Malta.

Section 28

In the course of an application under sections 24 and 26, the Court of Appeal shall not go into the merits of the case leading to the decision or the decree the registration of which is demanded in the application, but shall limit itself to ascertaining if the requirements of this Act for the registration requested exist.”

3. Bilateral agreements

Malta is a party to an agreement with the Holy See on the recognition of civil effects in respect of canonical marriages and decisions of ecclesiastical authorities and tribunals on such marriages. The Marriage Act further provides that the Government may enter into such agreements with other churches, religions or denominations. Section 37 of the Marriage Act reads as follows:

Section 37

 (1) The Government may enter into agreements with other churches, religions or denominations regarding the recognition of marriages celebrated in accordance with the rules and norms of that church, religion or denomination, and declarations of nullity or annulment of such marriages by the organs of such church, religion or denomination having authority in accordance with its rules.

(2) Such agreements shall conform substantially to the provisions of the Agreement between the Holy See and Malta.”

4. Privilegum Paulinium

Article 1143 of the Code of Canon Law, in so far as relevant, reads as follows:

A marriage entered into by two non-baptised persons is dissolved by means of the Pauline Privilege in favour of the faith of the party who has received baptism by the very fact that a new marriage is contracted by the same party, provided that the non-baptized party departs.

The non-baptized party is considered to depart if he or she does not wish to cohabit with the baptised party or to cohabit peacefully without affront to the Creator unless the baptised party, after baptism was received, has given the other a just cause for departing.

In Canon Law this refers to the dissolution of a marriage between two unbaptised parties, one of whom is later baptised and seeks to marry in the church.

5. Exequatur proceedings

Articles 825A to 828 of the Code of Organisation and Civil Procedure (“COCP”), Chapter 12 of the Laws of Malta, deal with the enforcement of judgments of tribunals of countries other than Malta. The provisions read as follows:

Article 825A

“Where regulations of the European Union provide, with regard to the matters under this title, in any manner different than in this title, the said regulations shall prevail, and the provisions of this Title shall only apply where they are not inconsistent with the provisions of such regulations or in matters not falling within the ambit of such regulations.

Article 826

Saving the provisions of the British Judgments (Reciprocal Enforcement) Act, any judgment delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered.

Article 827

(1) The provisions of the last preceding article shall not have effect:

(a) if the judgment sought to be enforced may be set aside on any of the grounds mentioned in article 811 (standard grounds for retrial);

(b) in the case of a judgment by default, if the parties were not contumacious according to foreign law;

(c) if the judgment contains any disposition contrary to public policy or to the internal public law of Malta.

(2) For the purposes of this article, the plea to the jurisdiction of the court by which the judgment was delivered, may be raised in terms of article 811(d), even though that court may have adjudged upon a plea to its jurisdiction, in the case of any action brought against any person not subject to the jurisdiction of that court by reason of domicile or residence, unless such person had voluntarily submitted to the jurisdiction thereof.”

COMPLAINTS

1. The applicants complained under Article 8 taken alone and in conjunction with Article 14 of the Convention that the refusal to register their marriage had interfered with their right to have a family life in Malta.

2. They further complained that the law was discriminatory as recognition or dissolution of Catholic marriages was quasi-automatic as opposed to that of Muslim marriages.

THE LAW

1. The applicants’ first complaint relates to the refusal to register their marriage. They invoked Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. The parties’ submissions

The applicants complained that the authorities’ failure to register their marriage under Maltese law had amounted to an interference in breach of their right to family life. The first applicant had fulfilled the criteria established in section 18 of the Marriage Act, since she had chosen Libya as her matrimonial domicile, as proved by her twenty-year period of residence in Libya and her conversion to Islam.

The applicants argued that under Maltese law, a Maltese citizen had a right to have his or her spouse live in Malta. The Immigration Act provided that such a spouse was an exempt person and could stay and work in Malta. Thus, the lack of registration put their family life in a precarious position and caused them financial loss. They sought recognition as a married couple and not a cohabiting couple. The latter as opposed to the former did not allow for, inter alia, the application of a patrimonial regime, nor for any succession rights including the right to stay in Malta as a widower as allowed by the Immigration Act.

They submitted that the lack of recognition of their twenty-year marriage was not justified under any law or in a democratic society.

The Government submitted that, as held by the Constitutional Court, the applicants had failed to exhaust available ordinary remedies. They should have had recourse against the Director of the Public Registry by taking proceedings before the Civil Court (First Hall) in its general jurisdiction. Moreover, the decision not to register the applicants’ marriage amounted to an administrative act in terms of Article 469 A of the COCP and was therefore subject to judicial review. The Government further noted that the first applicant could also have instituted exequatur proceedings in order to proceed with the registration, which she had failed to do. Lastly, the Government argued that the length of any remedy did not impinge on its effectiveness.

As to the merits, the Government submitted that there had not been an interference with the applicants’ right to respect for their private and family life as the applicants were allowed to reside and cohabit in Malta. Denial of automatic registration on the basis that the applicant did not have the capacity to marry, in the absence of an exequatur judgment confirming the dissolution of her first marriage, could not amount to interference. Article 8 did not oblige States to recognise as lawful the dissolution or annulment in a third State of a marriage contracted in Malta when such dissolution or annulment was not in conformity with Malta’s national law, including its rules on conflict of laws and its public policy.

Without prejudice to the above, the alleged interference was in accordance with the law, namely sections 18 and 33 of the Marriage Act (see Relevant domestic law). The first applicant did not fulfil the criterion in section 18 (b), regarding her capacity to contract marriage, in the absence of an exequatur judgment. In respect of the applicants’ contention that the first applicant’s previous marriage had been dissolved, the Government submitted that the Director of Public Registry had not been satisfied by the certificates (issued by a Libyan court) produced, in that, in his view, they did not constitute a decision of a foreign court on the status of a married person or affecting such status.

The alleged interference had a legitimate aim, namely the prevention of disorder and crime and the protection of the rights and freedoms of others. The formalities required by the above-mentioned provisions were intended to preserve order in matrimonial unions, to safeguard others who had entered into the marriage bond and to prevent bigamy in a society founded on the notion of monogamous marriage. The Maltese authorities had exercised their discretion reasonably, carefully and in good faith, basing themselves on relevant and sufficient grounds. Bearing in mind the margin of appreciation of the State, the alleged interference was necessary in a democratic society.

B. The Court’s assessment

The Court does not consider it necessary to examine whether the applicant has exhausted all available domestic remedies and whether the latter were effective as the complaint is in any case inadmissible for the following reasons.

Assuming that there has been an interference with the applicant’s private and family life, the Court notes that such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Maslov v. Austria [GC], no. 1638/03, § 65, 23 June 2008). A fair balance has to be struck between the competing interests of the individual and of the community as a whole, and the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172). The Court further recalls that it is for the national authorities, notably the courts, to interpret and apply domestic law (see Rotaru v. Romania [GC], no. 28341/95, § 53, ECHR 2000‑V), and of relevance to the instant case, it is primarily for the national legislation to lay down the rules regarding validity of marriages and to draw the legal consequences (see mutatis mutandis, Benes v. Austria, Commission decision, no. 18643/91, 6 January 1992, unreported).

The Court notes that the applicants’ request to register their marriage was rejected for failure to comply with the requirements of domestic law. In particular, the first applicant had failed to prove that her domicile was Libya. Alternatively, she had failed to prove to the satisfaction of the authorities that her first marriage had been dissolved and that she had therefore, in accordance with Maltese law, capacity to marry.

The Court notes that the authorities’ assessment that the first applicant had not fulfilled the legal requirements could not be considered manifestly unreasonable or in any way arbitrary.

In so far as the applicants contest the existence of the latter requirements and their application to their case, the Court finds that those requirements fall within the sphere of the respondent State’s public policy, and it cannot be said that the national authorities exceeded their margin of appreciation either in imposing the requirements or in applying them in the applicants’ case. In view of the interests of the community in ensuring monogamous marriages, and those of the third party directly involved, namely the first applicant’s first husband, the Court cannot find that, in the circumstances of the case the domestic courts failed to strike a fair balance between the conflicting interests. Thus, the situation complained of can be regarded as necessary in a democratic society for the prevention of disorder and the protection of the rights of others.

It follows that this complaint must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicants’ second complaint is that the law was discriminatory since recognition or dissolution of Catholic marriages was quasi-automatic as opposed to that of Muslim marriages. They invoke Article 14 in conjunction with Article 8 of the Convention. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. The parties’ submissions

The applicants submitted that the agreement with the Holy See, allowing for easier registration of Catholic marriages or their dissolution (on various grounds) was discriminatory on the basis of religion. They submitted that while it was true that the Catholic religion was the one professed by the majority, minorities needed to be protected from discrimination. However, since most other religions did not have a hierarchy which was universally representative of that religion, an agreement such as the one Malta had with the Holy See could never be applied to other religions, such as Islam. The effects of this agreement included simpler procedures for the dissolution of Catholic marriages where the Court of Appeal in accordance with section 24 (5) of the Marriage Act, could only examine whether the marriage was a Catholic one and that the relevant tribunal was competent, but could not enter into the merits of the religious notions on which the dissolution was based. They claimed that a divorce pronounced by the courts in Libya, based on religious law, should have the same status as one issued by the Holy See.

The Government contended that no proof had been submitted that marriages celebrated in accordance with the Catholic rite were more easily registered than others. Registration of any marriage, including one contracted in the Vatican, was governed by the same legal provisions. Thus, there was no legal or factual distinction. Moreover, civil effects were recognised for marriages in Malta only in so far as there did not exist any impediment which, under civil law, resulted in the nullity of the marriage (Article 1 of the agreement). On the facts of the case, religion was not an issue, as the only reason for refusal of registration was that the first applicant was domiciled in Malta and was therefore subject to Maltese law, under which she did not have capacity to remarry in Libya on account of her previous valid marriage in Malta.

The existence of the agreement and the fact that Catholic marriages celebrated in Malta had, from the moment of celebration, the same effects as a civil marriage, resulted in a difference in treatment which was objectively justified in light of the fact that the Catholic religion was professed by the majority of Maltese citizens. However, the provisions in the Marriage Act concerning decisions by ecclesiastical tribunals declaring the nullity of a Catholic marriage also entailed an exequatur procedure. That procedure required conformity with section 24 of the Marriage Act (see Relevant domestic law) to be reviewed by the Court of Appeal. This provision only applied to Catholic marriages where one of the parties was domiciled in or was a citizen of Malta.

The Holy See had entered into similar agreements with various European countries with predominantly Catholic populations, such as Italy, Spain and Portugal. Moreover, in accordance with the Marriage Act, Malta was entitled to enter into such agreements with other churches, religions or denominations, and the fact that it had entered into just one agreement did not amount to discrimination in respect of the other religions. Even assuming that it were impossible to enter into other such agreements in practice, due to a lack of structure or universal representation, this would amount to treating different situations differently and therefore would still not amount to discrimination.

B. The Court’s assessment

Since the facts at issue fall within the ambit of Article 8, Article 14 is applicable. The Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see Unal Tekeli v. Turkey, no. 29865/96, § 49, 16 November 2004). A difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies (see Zarb Adami v. Malta, no. 17209/02, § 72, ECHR 2006‑VIII).

The Court observes that the only reason why the applicants’ request to have their marriage registered was not acceded to was the fact that the first applicant had failed to fulfil the requirements of the Marriage Act, and not because they had married in the Muslim religion. Indeed the applicants have not submitted that any spouses having contracted a Muslim marriage abroad and having fulfilled the relevant criteria would not have been able to register their marriage. Moreover, the Court notes that section 18 of the Marriage Act applies to any marriage contracted in or outside Malta, regardless of whether it is a civil or a religious marriage (section 11 (2) of the Act). In consequence, it cannot be said that the applicants have been treated differently to someone in an analogous or relevantly similar situation.

The applicants further claimed that Maltese law was more favourable to the Catholic religion when it came to the regulation of marriage, in particular dissolution. In this respect, the Court notes that dissolution of a Catholic marriage and registration of such requires, depending on the circumstances, either an executive decision of a tribunal or a decree of nullity pronounced by an ecclesiastical tribunal, followed by the relevant procedure before the Court of Appeal in Malta (see Relevant domestic law above). Similarly, registration of the dissolution of any other marriage requires a decision of a competent foreign court, followed by the relevant exequatur procedure (see Relevant domestic law above). Thus, even assuming that the applicants had pursued such proceedings, which they did not, there does not appear to be any significant difference between the two procedures. The Court further notes that any difference in the grounds of dissolution, and in the scope of the courts’ examination of such, are irrelevant to the present complaint as the Maltese authorities never sought to question the merits of the first applicant’s dissolution of her first marriage. In consequence, the Court finds that the applicants have not suffered any difference of treatment in this respect.

It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence EarlyNicolas Bratza
RegistrarPresident

 

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