GREEN AND FARHAT v. MALTA
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
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. 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. 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. 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. 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. 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 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.” 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.” 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.” 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. 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.”