‘It’s complicated’: Over two years’ delay for a simple change in law

For a government that prides itself on its progressiveness on gender equality, its failure to amend a simple clause in the Notarial Act two and a half years after the Constitutional Court deemed it sexist – twice – is unconscionable.

Last week, the National Commission for the Promotion of Equality said in a statement that it was “difficult to understand” why the government had been sitting on this for so long. The following day, the Justice Ministry reacted, hyping up the issue’s complexity and stoking further confusion.

The issue is less about complexity and more about political indifference towards an issue that is electorally mundane. That adds weight to the recommendation of the Venice Commission for the automatic revocation of laws deemed unconstitutional by the Constitutional Court.

Notaries consulted by The Shift pointed to a simple solution that would hit two proverbial birds with one stone: gender equality and the avoidance of potential fraud. Political will is another matter.

What part of the law was found sexist?

The saga began five years ago when Marie Therese Cuschieri, who is currently director of Malta Women’s Lobby, which groups all NGOs in Malta active in women’s causes, was due to sign a promise of sale agreement and the notary put down her status as a divorcee, together with her ex-spouse’s name, on the contract.

Notaries put down that information under a clause in the Notarial Profession and Notarial Archives Act that specifies that in cases in which “any of the parties to the act is a woman, it shall also be stated whether she is a spinster, a married woman or a widow.”

Therese Cuschieri challenged that provision in the Constitutional Court, which ruled it discriminatory twice, the second time on appeal in a judgement handed down on 28 January 2018. The judgement was transmitted to parliament for legal amendments.

Eight months later the MEP Roberta Metsola wrote to the National Commission for Promotion of Equality, which has now issued last Thursday’s strongly-worded opinion in which it was “made clear that foot-dragging to do what is right is not acceptable.”

The next day the Justice Ministry’s press statement said that it had been in discussion with the Public Registry for an unspecified time described as long in a bid to “address this anomaly as soon as possible”, adding that the government is seeking a “holistic solution.”

Can that clause just be removed?

Notaries consulted by The Shift maintain that that clause is needed to prevent potential fraud or legal complications that could arise due to patchy information on a woman’s history in case of changes to women’s surnames upon marriage and divorce.

For example, a woman might get a loan on a property as a single person, then change her surname upon marriage and then at some point sell the property before the entire mortgage is paid back. The notary would not find out about the outstanding mortgage if the women’s previous surname remains unknown, and this might lead the buyer to unsuspectingly buy the property and then, at some point, get the bank knocking on the door seeking repossession of the property on the basis of missed mortgage repayments. How would that buyer seek redress then, particularly if the seller leaves the country?

For these reasons, notaries say that a person’s name or surname changes, as well as marital history, is essential in the prevention of fraud, and legal certainty.

Pegging this information to an ID card number would not be a foolproof alternative because ID card numbers have only been put down in notarial deeds since the late 1980s, and this would solve nothing in property research stretches earlier in time. It also would not work in research of foreigners, or longtime Maltese emigrants.

What are the legal changes needed?

Notaries say that the only change that is needed is to compel everyone, male or female, to provide complete information on every change of name or surname as well as marital history.

In the past, it was only women who adopted their husband’s surname upon marriage, but this is no longer the case.

This even hit the news prior to the 2019 Member of European Parliament elections when Labour’s Alex Saliba adopted his wife’s surname and became Alex Agius Saliba. In his case, he reportedly did it so that he would feature higher up on the electoral ballot sheet, in which candidates are listed in alphabetical order by surname. Yet other men are also free to adopt their wife’s surname for whatever reason.

Transgender people are also now permitted to change their names, and gay marriage has enabled single-sex couples to form unions that bear legal ramifications.

These wider social and legal changes, notaries maintain, mean that the only change that might be needed in law is to compel everyone to provide all their previous names or surnames and marital history.

Why aren’t laws found unconstitutional automatically revoked?

The Venice Commission has recommended adoption of what’s the standard in virtually all democratic countries: that laws deemed unconstitutional would automatically become defunct after a grace period of a year. The idea is that the grace period would provide sufficient time for the government to pass alternative or amended legislation.

Justice Minister Edward Zammit Lewis disagreed in a letter a month ago, arguing that “every endeavour is being made to conform our legislation with decision and teachings of our Constitutional Courts” and that “this is proving effective.”

Notaries said that it shouldn’t have taken longer than a few months to roll out amendments to the Notarial Profession and Notarial Archives Act to address the discrimination by compelling everyone to provide their marital and name-change history.