Marriage inequality: the Bill is great news for same-sex couples, but no news for other minority groups

aditus foundation is extremely happy to see Malta adopting marriage equality legislation. It is our firm belief that all persons should be entitled to access and enjoy the right to marry and found a family, irrespectively of their sexual orientation, gender identity or other innate characteristic.

When advocating for the adoption of the Civil Unions Act, we had unequivocally stated that whilst the legal recognition of same-sex couples established through civil unions was a historical moment for Malta’s human rights progress, falling on step short of introducing marriage equality was indeed a pity.

The Bill is essentially a law of language, to the extent that what is being said is far less important than how it is being said. By introducing a series of amendments to various legal instruments, the Bill seeks to render marriage – its processes but also its ensuing rights and obligations – as gender neutral as possible in the way it is described at law and, importantly, at the political and social levels.

Although understandably challenging for some sectors, this shift in perspective by no means diminishes the personal, social and national value of marriage but rather strengthens its possibility of being conceived of and approached in as most an inclusive and welcoming approach as possible.

Yet it is ambitious and incorrect to define the Bill as an instrument that will allow all consenting adults to enjoy the right to marry, and a number of concerns ought to be flagged.

Whereas the Bill focuses almost exclusively on broadening marriage for it to include same-sex couples, it maintains the discriminatory and degrading status quo whereby persons in an irregular migration status are denied access to marriage, due to their impossibility of producing the required documentation.

The relevant authorities have done very little to seek alternative options with a view to resolving these difficulties, thereby continuing to deny marriage to an already marginalised population.

The Bill also ignores the challenges faced by refugees and migrants who remain bound by the civil status declarations they make before the Office of the Refugee Commissioner, usually within days of their arrival in Malta.

There is a need for the Government to appreciate the state of mind, thought process and personal circumstances of a person landing Malta – in many cases following a gruelling journey by boat – and declaring the status of single or married, before taking that statement as eternally binding.

Furthermore, the Bill also maintains the privileged position enjoyed by the Catholic marriages, whereby these are – if validly contracted – recognised by the State, and have the same civil effects as a marriage celebrated under the Marriage Act.

In an increasingly diverse Maltese society, where religious freedom and non-discrimination are Constitutionally protected, there is no reason why a revised Marriage Act should continue to exclude such recognition to marriages validly celebrated according to the rites of other religions and denominations.

aditus foundation also feels that the Bill needs to incorporate or trigger further amendments to truly ensure gender equality in marriage, beyond the linguistic changes proposed in the Bill.

Examples of existing practices that act against the role of women in marriage, and therefore in society, include presumptions made (in practice, now in law) for the purposes of inland revenue and social security, as well as the impossibility of new fathers to spend quality time with their children.

aditus foundation therefore welcomes the Bill and is looking forward to appreciating its dramatic impact on the LGBTIQ+ community.

We however strongly urge the Ministry to revise the Bill in order for it to truly fulfil its stated purpose: “to modernise the institution of marriage and ensure that all consenting, adult couples have the legal right to enter into marriage.”

This press release is accompanied by our detailed commentary on the Bill.

The Cohabitation Bill is a zero-starting point

Following months of meetings with the Maltese Government to discuss possible forms of legal recognition of same-sex relationships, aditus foundation can only describe the Bill presented today as a regrettable failure.  This is based on the zero-starting point presented through the Bill which, although being offered as a tool to recognise same-sex relationships, effectively does nothing to alter the present barren legal scenario.

Having carefully analysed the Bill and its possible implications, aditus wishes to highlight that most of the ‘rights’ created therein are already accessible today by any person.  Anyone, including a homosexual couple, may approach any notary and regulate issues such as shared or common property and payments to any other person that could easily be termed ‘maintenance’.

The Bill is over-burdened with references to financial elements, reducing same-sex relationships to quasi-commercial transactions between two persons, and several issues are either unclear or the result of unrefined legal drafting.

For example, it is not clear whether eligibility for registration of a civil cohabitation partnership requires fulfillment of the ‘cohabitant’ criteria found in Article 3, namely the requirement of cohabitation of two years or more where children are involved or of five years in other cases.  If this interpretation were correct, then same-sex couples would be required to firstly cohabit for the required number of years in order to be able to register their relationships.  Marriage contains no such requirement.

It is also unclear whether the criteria in Article 3(1)(a) or (b) – relating to the duration of the relationship – are sufficient for registration of civil cohabitation partnerships or whether the criteria in Article 3(2) – relating to other circumstances – will also be taken into account at the registration stage.

We also cannot understand why same-sex couples are required to have received legal advice as a precondition to registration, when a far more serious contract as is marriage does not require any form or such advice, training or even basic information.

We were also expecting the Bill to ensure that third-country nationals in same-sex relationships with Maltese nationals would be granted permission to enter, stay and work in Malta.  The Bill makes no mention of this element, and neither of the need to guarantee the freedom of movement rights of EU nationals moving to Malta through recognition of marriages or partnerships validly contracted in other EU Member States.

These points seem to reflect the Bill’s overall policy assumptions, namely that same-sex relationships are ‘special’ relationships, often riddled with abuse and exploitation and thereby requiring protection for weaker parties.

For all of the above reasons, aditus foundation is extremely disappointed at the Bill’s achievement in being an absolute zero-starting point that promotes the inherent unequal dignity of human beings.

aditus reiterates the argumentation and recommendations made in MGRM’s Position Paper on marriage Equality, authored by aditus Director Dr. Neil Falzon as MGRM’s Legal Advisor, essentially strongly advocating for the fullest legal recognition of same-sex relationships through marriage equality.

“Regrettably, despite genuine efforts at constructive dialogue with the Minister, the Bill is largely a disappointing and failed attempt to engage with Malta’s gay community.  

This is absolutely not the result of dialogue, at least not as we understand the term.” (Dr. Neil Falzon, aditus foundation Director)