Woman wins right to private life as outdated law forced her to include ex-husband’s name

The woman objected to a legal requirement in the Notarial Profession and Notarial Archives Act that when signing a promise of sale, a woman's divorced marital status, and the name of her ex-husband needed to be written down after her name

A government notary has told a court that notarial searches are not carried out on ID card numbers, but on the basis of family ties because the computerised system was “not yet ready.”

This emerged during a case filed by a company director who as said she felt intimidated and disgusted that her divorced marital status, and the name of her ex-husband, needed to feature in a promise of sale for the acquisition of a San Gwann property for her company.

In a case filed by Marie Therese Cuschieri before the First Hall of Civil Court, in its Constitutional Jurisdiction, against the Attorney General, Cuschieri objected to a legal requirement in the Notarial Profession and Notarial Archives Act that when signing a promise of sale, a woman's divorced marital status, and the name of her ex-husband needed to be written down after her name.

No equivalent requirement exists for men.

Cuschieri had also claimed that the proviso which made the inclusion of her marital status necessary constituted undue interference in her private life.

Cuschieri explained that her notary had told her that the contract would have to list her marital status otherwise it could not be accepted at the public registry. She claimed that this made her feel uncomfortable and intimidated, as she realised that she would have to be associated with her ex-husband for the rest of her life.

Testifying by means of an affidavit, she wrote that she had been so disgusted by the situation that at a subsequent board meeting she had passed a resolution for her son’s name to appear on the contract instead of her own.

Government notary Keith German was summoned to the witness stand, from where he confirmed that requirement for the marital status of a women to be specified was included in the Notarial Profession and Archives Act, to make it easier for notaries to carry out searches about a client.

Notary German explained that the system for notarial searches was not carried out on the basis of ID card numbers but rather on the surname because the registration of property was not yet complete.

Cuschieri, who had separated from her husband in 2013 before obtaining a divorce in 2015, had signed a promise of sale to acquire a property for a company, in her capacity as the company's director.

The defendant had argued that the woman had failed to show, in practise, how she had been affected by the inclusion of her status and ex-husband’s name.

Judge Lorraine Schembri Orland found for Cuschieri, declaring that the requirement for a woman’s marital status to be listed on the notarial document was not in keeping with the Constitution and the articles of the European Convention on Human Rights which dealt with the right to respect for private and family life and the prohibition of discrimination.

The court also declared that the applicant's right to private and family life had been violated.

The judge ordered that a copy of the judgment to be delivered to the Speaker of the House for the matter to be discussed in Parliament.

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