The decisive result of the national referendum on the introduction of divorce legislation in Malta marked a notable advance for Maltese civil rights. Not since the mid-1970s, with the de-criminalisation of homosexuality and adultery, which until then were offences punishable by imprisonment, and the introduction of civil marriages, had Malta struck such an important blow for freedom, justice and civil rights.
There remains one more outstanding item of civil rights business to be confronted and it concerns the way another minority in our society is treated. Homosexuals are not protected under our laws, and they should be. Discrimination against homosexuals, both male and female, both in the workplace and outside it, is rife. Anecdotal evidence of harassment and bullying of homosexuals (so-called “hate crimes”) is commonplace.
The remit of the National Commission for the Promotion of Equality prevents it from tackling discrimination committed on grounds of sexual orientation. The anti-discrimination legislation flowing from the transposition into our law of the EU’s Employment Framework Directive has had only limited impact. There has been a wilful neglect by Parliament of the plight of sexual minorities, a vulnerable group in society, consisting of homosexuals, bisexuals and trans-genders, as well as homosexual couples (same-sex partners who live and set up home together) who currently enjoy no rights or recognition whatsoever.
Yet Malta acceded to the International Covenant on Civil and Political Rights over 20 years ago. Article 26 states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground…” It has committed itself to upholding international principles and it is failing to do so.
The right to non-discrimination and equality before the law are among the most fundamental of all human rights principles. There is currently no single law that safeguards the position of homosexuals in society, and a whole raft of laws that deny basic financial and work-related entitlements to homosexual couples in the fields of, for example, housing, inheritance rights and fiscal benefits and entitlements.
Attitudes to the legal recognition of same-sex relationships are influenced by considerations such as age, religious affiliation and culture. Denmark and Norway seem to have no problem in legislating for full marriage. Catholic Spain took this step despite much religious and political opposition. Belgium and The Netherlands have also legislated for same-sex marriage. Others, like Germany, the United Kingdom, Ireland, the Czech Republic, Hungary, Switzerland, Sweden and Finland have introduced ‘Civil Partnerships’.
In my judgement, although there may be respectable arguments to be made for introducing the concept of same-sex marriages, it would be wrong, as well as impolitic, in the Maltese context to seek to introduce them here. Ending unfair discriminatory treatment of same-sex couples is one thing all fair-minded people could recognise. Given the symbolic meaning of marriage in our society, allowing them to marry would be quite another.
The overriding practical consideration is that civil partnerships would deliver the significant majority of the rights and obligations that marriage confers. They would make a significant difference to the current vulnerable legal position of same-sex partners by giving them the opportunity to gain legal recognition for their relationship and by achieving concomitant rights and responsibilities. The legal limbo into which they have been thrust would be removed.
In outline, the main features of a civil partnership Bill might be devised along the following lines. The same-sex couple would go through a public ceremony, which to all intents and purposes is equivalent to that for civil marriages. Civil partnerships would be open to people aged 18 years or over. They would be of the same sex and must not be close relatives. At the time of the ceremony, neither party must be married or in another civil partnership. A couple intending to celebrate a civil partnership would face the same procedural hurdles as those marrying – notice of intention to formalise the relationship, declaration of no impediment, and so on. Like marriage, the ceremony would be a public event in a Registry Office or similar.
It is envisaged that the rights, duties and remedies that would arise as a result of civil partnerships would be extensive. With some important exceptions, the legal entitlements of civil partners would mirror those applicable to married couples. Civil partners would be formally recognised as each other’s next-of-kin. A civil partner would have the right to claim from the estate of a deceased partner, whether or not the latter made a will.
Where the deceased dies without making a will, the partner would be entitled to the entirety of the estate, or two-thirds if the deceased had children.
In relation to pensions, civil partners would be placed in the same position as spouses by making a surviving civil partner entitled to a survivor’s pension in the same way as a surviving spouse. Where the partners share a home (regardless of who owns it), a civil partner would not be able to sell, lease or mortgage the shared home, or offer it as security for a loan, without the prior written consent of the other civil partner. As to tax and social welfare, it would seem sensible to seek to equalise the position of civil partners and married persons under the relevant social security and tax acts. The law would also need to have clear provisions for access to children of any former marriage, for adoption and for the dissolution of civil partnerships in line with similar provisions under divorce legislation.
What will be the benefits to Maltese society of recognising same-sex relationships by the establishment of a civil partnerships scheme? It cannot be coincidental that so long as society chooses to treat homosexual couples as second-class relationships, lesbian, gay and bisexual people are the victims of homophobic incidents, such as threats, intimidation, verbal abuse or physical assault. The creation of a new legal relationship for same-sex couples would play an important role in increasing the social acceptance in our society of gay men, lesbians, bisexuals and trans-genders, removing discrimination and thus building a safer, more inclusive and fairer society. Civil partnerships would also provide a framework for same-sex couples to acknowledge their responsibilities, manage their financial affairs together and achieve legal recognition as civil partners.
The introduction of legislation to enact such rights would be an important step in publicly accepting stable, same-sex relationships, where couples have made a serious decision to seek legal and permanent recognition of their relationship. Civil partnerships would be a way by which society could acknowledge their relationship and overcome the stigma that is currently attached to them.
Finally, civil partnerships would attack discrimination at its root and introduce an important equality measure for same-sex couples who are unable to marry. The sooner Parliament addresses this issue – perhaps by means of a Private Member’s Bill, or ideally through a government Bill – the healthier the advance in Maltese civil liberties for another minority in our society.
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