WHEN THE LAW BECOMES A STUMBLING BLOCK FOR WOMEN

It takes lots of courage and determination for women to fight for their rights in a male-dominated society. Although Malta has seen major advancements in gender equality issues, the struggle to promote legal and social equality of women with men is far from over. A recent case of a divorced woman striving to rebuild her life is a striking example.

Dr Marie Therese Cuschieri, who did her own small bit to fight this kind of inequity, has had her days in court. Let me declare at the outset that Dr Cuschieri is my cousin, but this detail will have little effect, if any, on the narrative in which she took significant steps to fight a discriminatory provision in the Maltese law that reeked of gender bias against women.

It all started around three years ago when Dr Cuschieri was set to buy a property of her own. In the promise of sale that was drawn up to be signed, the notary put down the name of her ex-husband – as laid down by law. Dr Cuschieri was utterly dismayed. She challenged the notary but was informed that once the deed involved a woman, it would not be accepted by the government registry unless information about her divorce was included.

The notary was referring to a provision (article 28) in the Notarial Profession and Notarial Archives Act that states, “where any of the parties to the Act is a woman, it shall also be stated whether she is a spinster, a married woman or a widow.” This provision, which obliges a woman to declare her marital status, does not apply if the party to the Act (a contract in this case) is a man. Despite her objections, Dr Cuschieri had no option but to sign the promise of sale. How unfair is that?

Several years ago, she went through a divorce from her husband. She sought to put this painful experience behind her and rebuild her life. In the meantime, she studied for and obtained a PhD in sports management in England. No sooner had she started picking up the pieces of her life again than the law became a major stumbling block rather than a stepping stone.

Once a marriage has been legally dissolved by divorce, it should be clear to all and sundry that the couple no longer wish to be associated. Divorcées who have overcome a host of hurdles to re-acquire their independence and self-reliance, are not eager to relinquish them. Indeed, they guard them fiercely.

Yet, as they do so, every divorcée who wishes to enter into a formal agreement faces a double whammy. She is continuously identified with an estranged husband who (although certainly not always) may have been abusive. On top of that, she runs into heftier notarial fees because the notary must research identity and other important information in both her married and maiden names.

Left with no choice other than that of losing the opportunity to purchase the property that she had set her heart on, she gave power of attorney to her son so that the contract of sale could finally be signed. However, the feeling of injustice and of irritation motivated her to take the matter further. Solidly backed by the Women’s Rights Foundation, she filed a constitutional case to fight against the discriminatory provision and have it repealed. And this at a personal cost of a few hundred EURO.

The Constitutional Court ruled in her favour – twice. The second time was on appeal by the Attorney General and the final judgement that was handed down in January 2018 should have made its way to Parliament with some urgency. This did not happen. The official procedure, it seems, had been disregarded. Dr Cuschieri set her teeth and got in touch with female members of the House from all political parties.

As it happened, it was the Hon. Claudette Buttigieg, in her capacity as shadow spokesperson on civil liberties, equality and citizens’ rights, who put a parliamentary question to the Hon. Minister of Justice. She asked Dr Owen Bonnici for information about the action he intended to take to abide by the ruling of the Constitutional Court that was finally tabled in Parliament. In response, Dr Bonnici stated that consultation with the Notarial Council of Malta would be necessary to ensure that the amended legislation would be in conformity with the court’s decision. Although other provisions of the Act were  amended in 2018, the controversial one was still there at the time of writing.

Dr Roberta Metsola, MEP, had already written to the National Commission for the Promotion of Equality (NCPE), highlighting this issue and urging the Commissioner to take the necessary steps to remedy the situation that is clearly in violation of the court’s ruling. Meanwhile, the Human Rights and Integration Directorate have also been in touch with Dr Cuschieri to offer their support and assistance. Still, this newly acquired civil right is exclusive to Dr Cuschieri by way of the sentence handed down to her by the Constitutional Court.

Were it not for her perseverance, this anomaly might have never been addressed. The bottom line is that for as long as the House keeps dragging its heels over repealing the discriminatory provision, no other woman can reap the benefit of her efforts.