Court finds widow’s pension law may have violated woman’s property rights

A Constitutional Court presided over by Judge Toni Abela has ruled that the way Malta’s social security law was applied in the case of Mary Rose Mallia may have breached her fundamental property rights, after she was denied a full widow’s pension despite living with her late husband for nearly three decades.

The judgment, delivered on Thursday 8 May, followed an appeal from a decision by the Social Services Arbiter and was referred to the Constitutional jurisdiction by the Court of Appeal, which found the issues raised to be serious and legitimate.

At the heart of the case was Article 42A of the Social Security Act, which governs the distribution of a widow’s pension when a deceased person was divorced and had more than one surviving widow.

Mary Rose Mallia, who legally married Carmel Mallia in 2016 after living together since 1991, was denied the pension because she had only been married for four years, while Carmel’s first wife—who he had separated from in 1991 and later divorced in 2016—was still alive.

The Director of Social Security had applied the law strictly, potentially leaving Mary Rose with no pension and liable to repay benefits already received.

The Court found this application potentially unjust and unconstitutional, stating that a widow’s pension constitutes a form of property, as it is linked to the deceased person’s contributions and employment.

Drawing on European human rights jurisprudence, Judge Abela affirmed that Mallia’s rights under Article 37 of the Constitution and Article 1 of the First Protocol of the European Convention on Human Rights may have been violated.

The Court also referenced a legislative amendment that broadened the definition of "widow" to include long-term cohabiting partners, provided they had lived together for at least 10 years before death.

It concluded that Mary Rose Mallia would fall under this revised definition and should be considered eligible for a pro rata pension covering the full period of cohabitation from 1991 to 2020.

While no breach of Article 14 (non-discrimination) was found, the court’s judgment clears the path for Mary Rose Mallia’s claim to be reconsidered. It referred the case back to the Court of Appeal to decide on the pension entitlement in light of the constitutional findings.