A 24-year-old judgment by the European Court of Human Rights may dampen lawyer Lynn Zahra’s hopes of getting the Strasbourg court to “force” Malta to introduce divorce since it was not deemed to be a human right.
Dr Zahra, who has a daughter from a 20-year relationship with former Labour minister Joe Grima, has said that lack of divorce denies her the right to get married and breaches her right to respect for family life. She argues that their family is not recognised as a legitimate unit, socially and legally.
Similar arguments were made in 1986 by a separated Irish man and his British partner with whom he had a child. Ireland had no divorce law at the time and the man argued this violated his human rights because he could not marry his partner with whom he built a family and, consequently, it breached his “right to respect for family life”.
The man had also claimed discrimination because Ireland recognised divorce decrees obtained in foreign courts. He could not obtain a divorce abroad because his estranged wife was also Irish and he had not been domiciled in a foreign country.
On all counts, the European Court turned down the claims by 16 votes to one, arguing that the couple could not “derive a right to divorce” from article 12 of the European Convention for the Protection of Human Rights, which spoke of the right to marry.
The Court also turned down the claim that the lack of a divorce law breached the couple’s right to respect for family life (article 8 of the convention). However, the Court did find a breach of this article in terms of the couple’s child, who was also a party to the case, because, under Irish law, she was considered to be illegitimate and, subsequently, denied certain rights enjoyed by other children.
Judge Giovanni Bonello, who sits on the European Court of Human Rights, said the non-legislation of divorce had not been challenged in the Court since the Johnston vs Ireland case.
Without entering into the merits of the case, Dr Zahra intends to institute against the Maltese government, he explained that when social conditions changed “it was quite possible for the court to have a different view”.
Judge Bonello said the decision of the Court would depend on which of two guiding principles it chose to give preference to when deciding the case.
“The first is the principle of European consensus. If the court, by its own investigation, finds that something has a strong European consensus it could apply the consensus rule.
“The second principle is the margin of appreciation. If the case was about sensitive issues of morality, such as divorce and abortion, the Court could say these matters are best decided by the domestic authorities,” Judge Bonello said.
Dr Zahra would first have to go to the local civil and constitutional courts before taking her case to Strasbourg, something she intends to do in October.
Human rights lawyer Therese Comodini Cachia explained that, if Dr Zahra simply argued that the lack of divorce in Malta was in violation of her right to family life, the court might be averse to rule in her favour. “The court has in the past been hesitant to impose upon a country to regulate its family matters in a way it does not want to,” she said.
However, she added, should Dr Zahra claim discrimination on the basis of marital status, then that could possibly work in her favour. In such a case, the court would hand down a financial remedy and expect that measures be taken to remove the discriminatory element. However, she said, all too often the Maltese government has argued that, although its position violated human rights, it had satisfied the judgement by simply paying the compensation.
Dr Comodini Cachia said judgements of the European Court and the national Constitutional Court were effectively implemented by measures that removed the violation such as by amending laws.