Establishing Paternity

Within fifteen days from the birth of a child, the parents are duty-bound to notify the Public Registry of the said birth, for the purposes of drawing up the Act of Birth. Among the details contained in this Act, one finds the identification of the parents of the child. When the child is born to a married couple, it is legally presumed that the husband is the father, and the husband is thus registered on the Act of Birth as the father. Whereas, if the child is conceived and born outside marriage, the name of the father will not be stated in the Act, unless both parents acknowledge the child jointly before the officer drawing up the Act.

Acknowledging a Child Born Outside Marriage

In the event, the father of a child born outside marriage, wishes to acknowledge the child separately from the mother, he would need to serve the mother and the child with a judicial letter stating that he intends to apply to be acknowledged as the father of the child. If the mother agrees, she is to reply to this letter by means of a note, within two months from receiving it, agreeing to the registration. This note would need to be served to the Director of the Public Registry, who would register this acknowledgement in the relative act of civil status. However, if the mother does not agree, the father would need to file an application before the Civil Court (Family Section) requesting the Court to acknowledge that he is the child’s father, and to order the registration thereof. It is also possible, for the mother whose child is born outside marriage, and the child, to make a judicial demand before the Court requesting the parent who did not give birth to the child to be established, and for the Court to order the registration of the said parent in the relative acts. In such instances, the law provides that this judicial demand may be made ‘at all times’, implying that this can done at any time during the child’s lifetime.

The Action of Clarifying Natural Parentage of a Child Born in Marriage

Any person claiming to be the natural parent of a child who is born in marriage, may proceed with filing a sworn application before the Civil Court (Family Section) against the spouses and the child, requesting the Court to be declared as the natural parent of the child. In such cases, the natural parent must prove that during the time from the three-hundredth day to the one-hundred-and-eightieth day before the birth of the child, the mother of the child, had committed adultery with the applicant, and furthermore must produce evidence which may be genetic and scientific tests and data which tend to exclude the husband as the natural parent of the child. Likewise, the mother of the child born in marriage, may file an action against the natural parent, their spouse, and the child, requesting the court to declare the natural parent as the child’s father. This requires the mother to produce evidence; that adultery was committed during the time from the three-hundredth day to the one-hundred-and-eightieth day before the birth of the child and to produce genetic and scientific tests.

Apart from the natural parent, and the mother of the child, the law allows ‘any person interested’ to proceed with an action to clarify the natural parentage of a child born in marriage. In such instances, the interested party must prove; that during the time from the three-hundredth day to the one-hundred-and-eightieth day before the birth of the child the husband as in a physical impossibility of cohabiting with his wife, on account of his being away from her or some other accident, that the wife committed adultery and any other evidence or fact which may be genetic and scientific tests excluding the husband from being the natural father of the child.

The action for clarifying natural parentage, irrespective of whoever brings it forward, must file the action within six months from the birth of the child.

The Action of Repudiation

The spouse who did not give birth to the child, may bring an action to repudiate a child, if the said spouse has proof that; between the three-hundredth day to the one-hundred-and-eightieth day before the birth of the child the spouse was in a physical impossibility of cohabitating with his wife, or that the spouses where de facto or legally separated, or that he is impotent, or that his spouse committed adultery or concealed the pregnancy and birth of the child, as well as any evidence be it genetic or scientific tests and data that tend to exclude parenthood. Such cases must be brought within a strict timeframe; either six months from the birth of the child, if all the parties where in Malta at the time, or within six months from the mother and child’s return to Malta after the child’s birth or within six months from the discovery of the fraud, if the birth was concealed. In these cases, the declaration of the mother on the matter, is given due consideration.

Genetic Testing and Sampling

The Civil Code provides for the use of genetic and scientific tests and data as evidence in filiation cases. The parties to the proceedings including the child are to give their consent to genetic testing and accept that genetic sampling is conducted. When consent is not granted, the Court substitutes this, with an order to acquiesce to the taking of a sample. If genetic and scientific evidence is not produced, the Court may consider any other evidence, and may draw inferences from the fact that a person refused to provide a genetic sample, despite being ordered to do so.

Legal Presumptions and Safeguards

Maltese law has created legal presumptions in the best interests of children concerned, to protect their rights and freedoms as well as to create legal certainty in familial relations.[1] The first of which being that a child conceived in marriage, is regarded as the child of the spouses. Where the parents of a child born outside of marriage, eventually contract marriage, their children are deemed to have always been conceived and born in marriage, if both parents acknowledge this fact by means of a declaration in the act of marriage. Lastly, no person may claim a status to the contrary to what is attributed in the Act of Birth, as a child conceived and born in marriage, and likewise, it is not lawful to contest the status of a child conceived and born in marriage if this is in conformity with the Act of Birth.

When faced with a legal action to clarify natural parentage, or to repudiate a child, the Court is granted the power to dismiss any application, if the clarification of the natural parentage would result in a considerable adverse effect on the best interests of the child, which would be unreasonable for the child. However, if a child wishes to file an action to establish proper filiation, this can be done at any stage of the child’s life, since this is not barred by prescription.

[1] The Court of Appeal, Anthony Grima v. Josianne Grima et. decided on the 19^th April 2012, ‘Il-presunzjoni legali ghandha skop legittimu ghaliex qedgha hemm sabiex tipprotegi d-drittijiet u libertajiet tal-minuri u ghalhekk qeghda tissalvagwardja l-ahjar interess taghhom. Il-presunzjoni legali hija ukoll mehtiega f’socjeta demokratika sabiex thares ic-certezza legali fir-relazzjonijiet familjari sabiex fl-ahjar interess tal-ulied jipprevali.’