The government is proposing significant changes to various laws to ensure marriage equality for all. Kurt Sansone sifted through the Bill that will start being debated in Parliament.
Although it has been labelled as the Marriage Equality Bill, what Parliament will start discussing is a raft of changes to existing laws.
The stated aim of the Bill, piloted by Equality Minister Helena Dalli, is to “modernise the institution of marriage” so that all consenting adult couples would have the right to enter into marriage.
The proposal is not a standalone law but consists of changes to the Marriage Act and several other laws, ensuring that references to husband, wife, mother and father become gender neutral, among other things.
The aim is for the institution of marriage to be open to same-sex couples, with all the rights and obligations this brings about.
The Times of Malta carried out an exercise to highlight some of the key changes the government is proposing.
The examples listed in each situation are only intended to highlight the proposed changes and are by no means exhaustive.
Photo: Mark Zammit Cordina1. The laws that will be changed
The Bill includes changes to the Criminal Code, the Code of Civil Organisation and Procedure, the Civil Code, the Interpretation Act, the Marriage Act, the Civil Unions Act and other subsidiary legislation.
2. ‘Spouse’ instead of ‘husband and wife’
References to “husband and wife” will be changed to the gender neutral “spouse” to cover situations when the partners are two men or two women. It also provides legal clarity for all married couples.
Examples:
Civil Code on rents: “…this lease shall not extend to the wife, husband or offspring of the child…”
How it will change: “…this lease shall not extend to the spouse or offspring of the child…”
Criminal Code on bigamy: “A husband or wife who, during the subsistence of a lawful marriage, contracts a second marriage...”
How it will change: “A spouse who, during the subsistence of a lawful marriage, contracts a second marriage...”
3. ‘Parents’ instead of ‘father and mother’
The gender neutral “parents” will recognise all family set ups, including those where children have two fathers, or two mothers, instead of the traditional male and female model. It also helps avoid situations when parents are asked to fill official forms related to their children. The change also provides legal clarity for same-sex marriages in all aspects of the law.
Examples:
Criminal Code on underage pornography: “Where the offences [on the child]… are committed by any ascendant by consanguinity or affinity, or by the adoptive father or mother”
How it will change: “Where the offences [on the child]… are committed by any ascendant by consanguinity or affinity, or by any one of the adoptive parents…”
Civil Code on donations to minors: “A donation made to a minor may be accepted in his behalf by his father or mother, as well as by any of his paternal or maternal ascendants even though his parents are living.”
How it will change: “A donation made to a minor may be accepted in his behalf by any one of his parents, as well as by his ascendants even though his parents are living.”
4. The ‘person who gave birth’ instead of ‘mother’
The change is in line with the other provisions for gender neutral references. This is particularly important in the case of a lesbian couple since it may be necessary to distinguish between the parent who gave birth to the child and the other parent. This change also suggests that the government is looking ahead to a situation where sperm and egg donation become legal, which is the only way for a lesbian couple to conceive naturally.
Example:
Civil Code on registering children born out of wedlock: “In the case of a child conceived and born out of wedlock, where notice of the birth of such child… has not been given or made by the mother herself…”
How it will change: “In the case of a child conceived and born out of wedlock, where notice of the birth of such child… has not been given or made by the person who gave birth to such child…”
5. You are now… spouses
The epical moment of any marriage is the official declaration that the couple are now “man and wife”. But the rule book will change to the gender neutral “spouses” to reflect the newfound diversity of marriage. However, a new proviso will be introduced, which allows couples to indicate to the marriage registrar the form of words to be used during the ceremony.
Example:
Marriage Act on civil marriage: “The registrar or other officiating officer shall ask each of the persons to be married, first to one of them and then to the other, whether he or she will take the other as his wife or her husband respectively and upon the declaration of each of such persons that they so will, made without any condition or qualification, he shall declare them to be man and wife.”
How it will change: “The registrar or other officiating officer in front of whom the marriage takes place shall ask each of the persons to be married, first to one of them and then to the other, whether that person will take the other as such person’s spouse, and upon the declaration of each of such persons that they so will, made without any condition or qualification, the registrar or other officiating officer shall declare them to be spouses.”
6. Maiden surname to surname at birth
In view of the surname choices for married couples, the law removes reference to maiden surname in relation to the woman, replacing it instead with a reference to the surname any of the two spouses had at birth and after marriage.
Example:
Civil Code on registering with the public registry: “…his father’s name, his mother’s name and maiden name or any other particulars…”
How it will change: “…his parents name, and their surname at birth and after marriage or any other particulars…”
7. Which surname shall we take up?
The law will offer married couples more options when deciding on what surname they will adopt after marriage. The couple will be able to adopt the surname of either one of the parties to the marriage, which means that a man can decide to take on his future wife’s surname, unlike today. The spouses can also take on both of their surnames in the order of their choice as long as the new surname is no longer than four combined surnames. They may also opt to retain their own surnames. These choices had already been included in the Civil Unions Law three years ago.
Example:
If John Borg is getting married to Joan Abela Baldacchino, the couple can opt for any of these models after marriage:
Retain their own: John Borg and Joan Abela Baldacchino
Adopt wife’s surname: John Abela Baldacchino and Joan Abela Baldacchino
Adopt man’s surname: John Borg and Joan Borg
Combination: John Abela Baldacchino Borg and Joan Abela Baldacchino Borg
8. Religious protection
A same-sex couple will not be able to demand that its marriage be conducted by a priest or under the aegis of the Church because the new law introduces a provision that protects an official of a religious body from being obliged to solemnise a particular form of marriage not recognised by the religious body he forms part of.