Bill improves right of surviving spouses to succession

Justice Minister Tonio Borg and Parliamentary Secretary Carmelo Mifsud Bonnici explained legal amendments dealing with children born out of wedlock, and succession, when parliament debated a bill to amend the Civil Code.

Dr Mifsud Bonnici said the government was updating social legislation on various fronts - as evidenced by the recent appointment of a Commissioner for Children, new procedures in marriage separation cases, and this bill which tackled issues such as so called illegitimate children and inheritance issues.

This bill also aligned various laws with judgments given by the Constitutional Court when those laws were challenged.

Dr Mifsud Bonnici observed that this bill sought to eliminate discrimination between children born within and outside wedlock, because children were not to blame for what their parents did. This balance had been achieved without removing what was known as legitimation.

This bill also strengthened the rights of surviving spouses to inheritance vis-a-vis children or other relatives. There would no longer be a situation where, when a husband died without leaving a will, his relatives had a right for the inheritance with the widow, a situation which often led to court litigation.

In line with constitutional judgments, widows would be able to choose what surname to have when they remarried. At present a widow who remarried assumed the surname of her new husband, which meant her surname would be different from that of her children from the first marriage. She would henceforth be able to retain the surname of the first husband, if she wished.

The bill also updated provisions on the acknowledgment of children by the fathers. At present a man could simply go before a notary and say he was acknowledging a child to be his, and that child would assume his surname. This led to abuse since a man could acknowledge a child that was not really his. Henceforth a man could only file for the acknowledgment of a child in agreement with the mother. When the woman disagreed, the man claiming to be the father had to file a paternity suit in court.

Dr Mifsud Bonnici said the bill was drafted in a way to always protect the institution of marriage, which the government regarded as a central pillar of society.

He said the bill also included new provisions on the partition of properties held in common as a result of inheritance. In cases where property could not be sold because of the objection of an heir, the other heirs could go before the court asking it to allow the sale at the specified price, once it was justified.

In cases of partition of property where the heirs were not all known, a curator could be appointed on behalf of the unknown heirs, and proceedings could therefore continue.

This bill also introduced a new procedure how people who had sex-change operations could, after court authorisation, amend official documentation according to their new status. Dr Mifsud Bonnici said these amendments were aimed at avoiding humiliation or embarrassment to such persons, but this did not mean one should go from one extreme to another because, despite medical advances, sex change operations did not change everything. Men who became women could not bear children.

Winding up, Justice Minister Tonio Borg pointed out other aspects of the bill.

At present, he said, even when there was a will, a testator could not bequeath his children born out of wedlock more than a third of the minimum allowed by law to children born in wedlock. This injustice was now being rectified.

To date, children born out of wedlock were not considered as being part of the family except in the case of their mother or father. They could not, for example, inherit their grandparents. All this was being changed.

He said that the bill also went into the case where one of the spouses died without the couple having had children. At present, in terms of the law, the surviving spouse inherited only half of her husband's property, the rest going to her husband's relatives.

In terms of this bill however, when there was no will and no children, the surviving spouse would inherit everything.

In cases where there were children, the law provided at present that a spouse could not bequeath the other spouse more than a quarter of the property in full ownership. This bill enabled the spouses to bequeath each other as much as they wished, as long as the rights of the children to the legitim were respected.

Dr Borg said that despite requests he had received, these provisions on inheritance could not be made retroactive because they would create confusion, especially where property would already have been inherited.

However, the procedural amendments on the partition of inheritance could be retroactive, so as to facilitate the conclusion of pending cases. Thus one could, for example, be able to sell his undivided share in a property after a period of five years elapsed.

Dr Borg said this bill also facilitated procedures when one needed to change his name in certain justified circumstances.

The bill was later given a second reading, the opposition voting in favour.