Adoption law discriminates against married couples - Constitutional Court

The Constitutional Court has upheld a constitutional judgment which confirmed that a couple who wished to adopt a child were being discriminated against on the grounds that they were married.

Ruth Debono Sultana and her husband Silvio Debono filed their application against the Department for Standards in Social Protection and the Minister for Social Policy.

The court heard that Mr and Mrs Debono had got married in December 2007 after more than five years of cohabitation. The delay in their marriage was due to the fact that Mr Debono was awaiting the outcome of a case he had filed before the courts for a declaration of annulment of his previous marriage.

Although Mr and Mrs Debono wished to adopt a child, they were not allowed to do so, for the law prevailing at the time stipulated that a married couple could only adopt a child if they had been married for at least five years. The law was changed earlier last year to enable married couples to adopt a child after three years of marriage.

The Debono's declared that this provision of the law was in violation of their right to family life and was also discriminatory.

The First Hall of the Civil Court had declared that while adopted children were deemed to form part of their family, there was no fundamental human right on the part of an individual to be able to adopt. As a result, the Debono's claim of violation of their right to a family life was dismissed.

The court however upheld The Debonos' claim that the law was discriminatory against married couples.

The Civil Code stipulated that an adoption could only take place by court order. A husband and wife could only adopt if they had been married for at least three years. But a cohabiting and unmarried couple could adopt without the necessity of being married for three years. In this latter case either the man or the woman could adopt.

There was therefore a difference at law between the treatment meted out to a married couple and to a cohabiting couple. The married couple had to wait three years in order to adopt while a cohabiting couple did not have to wait for one of them to apply to adopt.

This, said the court, was discriminatory treatment in violation of the European Convention of Human Rights for it was not justified, objective or rational.

Naturally this did not mean that every couple could adopt a child immediately, for the legal procedures had to be followed in the interests of the child.

In conclusion, the first court declared that the section of the Civil Code providing that a married couple had to wait for three years to adopt was discriminatory. The law was to be amended so as to eliminate the three-year waiting period.

The Department then appealed from this judgment to the Constitutional Court composed of Chief Justice Vincent De Gaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The appeal court noted that Mr and Mrs Debono constituted a family unit even though they did not have a child. They were entitled to adopt a child through the measures stipulated by law, which measures were aimed at providing a child with a family and not a family with a child. There was therefore no right to be able to adopt.

The Constitutional Court however declared that it agreed with the first court that the law discriminated against married couples as it imposed a time limit upon them after which they could adopt.

No time limit existed for single persons. There was no objective justification for this difference in treatment.

The court therefore confirmed the first court's judgment and ordered the law amended so as to remove the requirement that a married couple live together for three years before adopting.