An unborn child is legally entitled to inherit its father, who died before its birth, a court has ruled. Similarly, in the case of a homicide, an unmarried partner of the victim is entitled to seek redress for damages suffered as a result of the death.
This judgment was delivered by Mr Justice Wenzu Mintoff in an action filed by Marta Kaczmarek in her own name and on behalf of her child against Antonel Dobre.
Ms Kaczmarek told the court that she cohabited with Al Shazliay Saleh Osama and that she was pregnant with his child when, in March 2012 Mr Osama died as a result of injuries he sustained at the hands of Mr Dobre.
The child was born in September 2012 and since his natural father had died, he was registered as being born of an unknown father. This status was changed following a court case filed by his mother, as a result of which, in October of last year, the court ruled that the child's father was Mr Osama.
Ms Kaczmarek claimed that Mr Dobre was solely responsible for Mr Osama's death and she claimed that as a result of this death, both she and her child had suffered damages. She requested the court to order Mr Dobre to make good the damages they had sustained.
Mr Dobre submitted that the action filed by Ms Kaczmarek was invalid as niether she nor her child were entitled to any part of Mr Osama's succession.
In his judgment Mr Justice Mintoff said that contrary to what Mr Dobre had alleged, Ms Kaczmarek's action was not necessarily linked to either her or her son's status as heirs of Mr Osama.
Mr Osama had died without making a will, and therefore, as Ms Kaczmarek was not his wife, she was not his heir. In an intestacy, when a deceased person died without a spouse, his inheritance passed onto his children.
In this case, the minor child was Mr Osama's heir even though he was born after Mr Osama died. The law was clear, said the court, as the Civil Code provided that persons not yet conceived were incapable of receiving an inheritance. This logically meant that those persons who were conceived, though not born, at the time of their parent's death, were capable of inheriting.
Mr Justice Mintoff said that the Civil Code also stipulated that in the case of an unlawful death, the courts could award damages to the heirs of the victim
The court added that questions about the legal nature of a foetus and whether it was a person were among the most interesting juridical debates of the time. Italian case law had established that a child born after its father was unlawfully killed was entitled to sue for damages. Such entitlement commenced upon the child's birth.
The same principle was to be found in English case law.
The court therefore concluded that the child born to Ms Kaczmarek and Mr Osama was entitled to sue for damages arising from his father's unlawful killing.
Mr Justice Mintoff added that Ms Kaczmarek, though not Mr Osama's heir, was also entitled to sue for damages. The couple had cohabited and had a long and stable relationship. It was therefore possible that Ms Kaczmarek has suffered a financial loss as a result of her partner's demise.
The court therefore found that Ms Kaczmarek and her son were entitled to sue for damages. The case was put off for evidence to be produced on the facts.