Adoption is defined by Watson in Triseliotis et al. (1997:2)77 as “a mean of meeting the developmental needs of a child by legally transferring ongoing parental responsibility from birth parents to adoptive parents, recognizing that in the process we have created a new kinship network that forever links these two families together through the child who is shared by them both.”

Whereas in Roman times, adult adoption was predominant and parents used to adopt in order to ensure a successor’s line, nowadays the institute of adoption is mostly perceived as a service to a child.

Inter-country adoption became more common after World War II where a lot of orphans were left abandoned due to the war, political turmoil, natural disaster and poverty. Legislation increased state responsibility to safeguard the best interest of the child – the child being the centre of the adoption procedure. In fact, article 20 and 21 of the 1989 United Nations Convention on the Rights of the Child identifies adoption as one of a range of options for the alternative care of children who find themselves unable to live with their birth families.

In the adoption process the role of the State is essentially that of forming a new family. Domestically, the institute of adoption is mainly regulated by Chapter 495 of the Laws of Malta entitled Adoption Administration Act. The provisions of this enactment may be classified under 4 main categories– those dealing with the appointment and powers of the adoption board, those revolving around the central authority, those regulating the accredited agencies and the provisions with respect to the board of appeal.

This eligibility to adopt a child and the requirements for adoption will be discussed in detail later on.

During 2018, there were 54 Maltese couples who adopted children from foreign countries. It must be pointed out that during the last six years 154 children were adopted. This figure includes the adoption of 25 Maltese children by Maltese adoptive parents.

How does the adoption process work? Primarily, the accredited agency receives and processes the application forms from persons wishing to adopt. Subsequently it will provide training to the applicants and then prepares a home study report on prospective adopters in order to assist the suitability of the applicants. Once the adoption has gone through and a child has joined a family, the Adoption Services continues to provide the necessary support to ensure the well-being of the child.

The best interest of the minor is of paramount important and supersedes the rights of third parties, this was discussed in an interesting case decided by Court of Appeal on the 29th May, 2015, ‘A et vs C et.’. The facts of the case are the following, A were the parents of B (who passed away tragically). Before his death, B had a relationship with C; from this relationship the minor D was born. Nonetheless mother (C) registered her child under ‘unknown father’ and consequently B was not recognised as his father. The parents of B filed legal proceedings before the Civil Court (Family Section) to declare their deceased son (B) as the natural Father however, during these proceedings, it transpired that C got married and her husband adopted the minor D. To this effect, the parents of B filed legal proceedings to challenge the adoption decree. Interestingly, the Court of Appeal held, “il-Qorti ma jidhriliex li jkun fl-interess tal-minuri li d-digriet tal-addozzjoni jithalla jigi attakkat. F’kazijiet ta’ din in-natura, huwa l-interess tal-minuri li hu suprem u jipprevali zgur fuq kwalunkwe interess li jistghu jivvantaw l-atturi. Il-minuri ghandu madwar tmien snin, u ghamel dan iz-zmien kollu jghix ma’ ommu; l-ahhar erba’ snin ghamilhom ma’ zewg ommu li trattah bhala ibnu. Ma jkunx fl-interess tal-minuri li jinqala’ minn dak l-ambjent jew tpoggi f’konflitt is-sitwazzjoni prezenti mar-realta`. It-tifel qed jitrabba f’familja b’omm u missier, u fis-sitwazzjoni tieghu u fl-eta` li jinsab fiha, ma jkunx flinteress tieghu li jiccahhad minn din l-istabbilita`. L-atturi jista’ jkollhom interess jistabbilixxu l-vera paternita` tal-minuri, pero` mhux l-istess jista’ jinghad biex tithassar l-addozzjoni tal-istess minuri.” The Court of Appeal rejected their pleas.
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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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Chapter 614 of the Laws of Malta, in other words: ‘the long-awaited Cohabitation Act’ was formally introduced into Maltese Law in June 2020, repealing Chapter 517 of the Laws of Malta and providing more rights and protection to couples seeking an alternative to marriage or civil unions.

Whereas previously there existed three variations which would establish cohabitation between the parties, being De Facto Cohabitation, Cohabitation by means of a unilateral declaration and cohabitation by means of a contract, the new law has done away with the first two models and completely excluded them from Maltese legislation.

Couples may be recognized as cohabitants if they continually and habitually reside together in the cohabitation home as a couple if they are not legally bound to other persons. Such couples become recognised as cohabitants upon entering into a public deed of cohabitation and a certificate of cohabitation shall be issued within twenty days from the enrolment of the public deed of cohabitation in the Public Registry.

Within the same public deed, the couple may declare the applicable law of their cohabitation being either the law of the state where the parties habitually reside at the time of conclusion of the public deed, the law of a state of nationality of either one of the parties at the time the public deed is concluded, or the law of the state under whose law the public deed of cohabitation was constituted.

The new law has made it very attractive for cohabiting couples to formalise their cohabitation by a public deed, and such mainly due to the list of rights such couples would become entitled to. Undeniably, cohabitants are regarded to have the same rights granted to a person who is married or in a civil union with regard to rights related to family and labour, including rights related to leave and the right to take all decisions relating to the medical care of the other cohabitant. Amongst others, cohabitants shall also have the right to a widows pension, to be entitled to non-contributory social assistance, to apply for a retirement pension, to have the right to unemployment benefit, children’s allowance.

For a couple to start the process of entering into a public deed of cohabitation, they are to provide the notary with a ‘free status certificate’, which must be issued by the Director of the Public Registry of Malta/Gozo not more than 90 days prior to the publication of the public deed of cohabitation.

The cohabitation home does not necessarily have to belong to both parties; it may belong to either one of them, to neither of them or to both- such is completely up to the couple to decide, with a iuris tantum presumption that cohabitants have the duty to pay all utilities related to the cohabitation home in equal shares among themselves for the period they reside in it, irrespective of whether the accounts of the utilities are addressed to one cohabitant only. Whereas the community of acquests, being limited to assets related to the cohabitation home under the Cohabitation Act, is not automatic to the formalization of the cohabitation and it is up to the couple to declare whether they would like to ‘opt-in’ or otherwise before the notary.

Changes to the cohabitants’ agreement and relationship are also regulated by the Cohabitation Act, and the parties may at any time, correct and/or amend the deed of cohabitation by means of a subsequent public deed with the authorisation of the Court.

While dissolution of the cohabitation may occur either by mutual consent or unilaterally by one of the cohabitant’s application before the Court, and such without the necessity to impute the other party any fault leading to the request for dissolution.

Dissolution of the cohabitation relationship will only be recognised through a court’s decree whereby both parties agree on the terms of dissolution or through sentencing if the parties do not agree. Upon such, the Registrar of Courts shall notify the dissolution to the Director of Public Registry so that it will be registered within the Public Registry.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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