A married couple overcame a major obstacle in their adoption bid after a judge ruled yesterday that the law discriminated against them by stipulating that a couple had to be married for three years to be able to adopt a child.

As it stands, the law lays down that a married couple can only adopt if they had been married for at least three years. However, singles and cohabiting couples can adopt without this condition.

The couple argued that the provision of the law was in violation of their right to a family life and was also discriminatory.

The court upheld their complaint and ordered the law be changed to eliminate the three-year waiting period for married couples, pointing out that no such condition was applicable to cohabiting and unmarried couples wishing to adopt a child.

After tying the knot last December, Ruth Debono Sultana and her husband Silvio Debono filed a constitutional application against the Department for Standards in Social Protection and the Minister for Social Policy insisting on their right to become adoptive parents.

Mr Justice Giannino Caruana Demajo, sitting in the First Hall of the Civil Court, heard that the couple were married after more than five years of cohabitation. The delay in their marriage was due to the fact that Mr Debono was awaiting a declaration of annulment of his previous marriage.

Once married, the couple wished to adopt a child but found they were unable to because the law stipulated they had to be married for at least five years. The law was changed earlier this year and the time-frame was reduced to three years.

Mr Justice Caruana Demajo, quoting from case law of the European Court of Human Rights, found that there was no violation to the right of family life. While adopted children were deemed to form part of the family, he ruled, there was no fundamental human right on the part of an individual to be able to adopt.

However, the judge upheld the Debonos’ claim that the law, specifically the Civil Code, was discriminatory against married couples. The court found that this was discriminatory treatment in violation of the European Convention of Human Rights for it was not justified, objective or rational.

This does not mean that all couples can adopt automatically, as legal procedures protecting the interests of the child need to be followed. However, the court declared that the section of the Civil Code imposing three years of marriage before a married couple can adopt is discriminatory and ordered that the law be amended in order to eliminate the three-year waiting period.

Lawyers Edward Zammit Lewis and Michael Camilleri appeared for the couple.