Landmark Judgement: DF Advocates successfully assists client with obtaining recognition of names assumed after contracting marriage in a foreign jurisdiction – the court orders the public registry to update its records and procedures.
L-Avukat Dr. Marlon Borg bħala mandatarju speċjali tal-assenti Michael Debono Mrden vs. Direttur tar-Reġistru Pubbliku (452/21/1 JVC)
Court of Appeal (Superior Jurisdiction) 12th July 2023
Overview
On the 12th of July 2023, the Court of Appeal in its Superior Jurisdiction (“COA”) overturned a judgment delivered from the First Hall Civil Court (“FHCC”) whereby the COA declared that the plaintiff’s name on the Act of Marriage issued in Malta shall be indicated as ‘Michael Debono Mrđen’ and hence as indicated in the Act of Marriage issued in Croatia, despite the fact that the letter ‘đ’ does not form part of the Maltese or English alphabet.
Background
The plaintiff is a Maltese national born in Malta and was given the name ‘Michael Debono’. On the 17th June 2017, the plaintiff married his wife Viktoria Mrđen, who is a Croatian national. The couple decided to adopt each other’s surnames, and thus the plaintiff’s official name as per the Act of Marriage issued by the Croatian authorities ‘Michael Debono Mrđen’. Following the celebration of their marriage, the plaintiff together with his wife wished to register their marriage in Malta. However, they were informed by the Public Registry that the letter ‘đ’ cannot be reproduced on the Act of Marriage since it does not form part of the Maltese or English alphabet. The plaintiff was also informed that the letter ‘đ’ can be substituted with the letter ‘d’ instead. Having no other option other than having his marriage not registered in Malta, the plaintiff proceeded with the registration of the marriage with his name indicated as ‘Michael Debono Mrden’.
This fact alone was unacceptable for the plaintiff since as a Maltese citizen he had every right according to law to register his name in its entirety, and not according to the system limitations utilized by the Public Registry.
It is also important to note that the name which the Director of the Public Registry decided to adopt for the plaintiff by substituting the letter ‘đ’ with ‘d’ sounded entirely different that the plaintiff’s actual name. Although visually, the two letters might look identical with the exception that the former has an overlaid with a crossbar, phonetically both letters cannot be more diverse (phonetically the letter ‘đ’ sounds similar to ‘dj’ or ‘ġ’ in Maltese).
The Provisions of the Civil Code on Registration of Acts of Births, Marriages, Unions of equivalent status, and Deaths in Foreign Countries
Article 244 (1) of the Civil Code states that “any act of birth, marriage, union of equivalent status as defined in the Civil Unions Act or death of a citizen of Malta drawn up or registered in a foreign country by a competent authority in that country, other than an act drawn up or registered under sub-article (l) or sub-article (2) of article 270, may, at the request of any person interested and upon the Director of the Public Registry being satisfied on the authenticity of such act, be registered in these Islands in the same manner as if it were an act drawn up by any of the persons mentioned in this Title.”
The Provisions of the Civil Code on Correction or cancellation of registrations.
Article 253(1) of the Civil Code states that “it shall be lawful for any person to bring an action for the correction or cancellation of any registration, or for the registration of any act which the Director, with the approval of the retired Judge or retired Magistrate or retired advocate of the Court of Revision of Notarial Acts, shall have refused to receive”.
Furthermore, article 256(1) of the Civil Code also states that “any correction, cancellation or registration ordered by the court shall be made by the Director within the time of ten days from the day on which the judgement shall have become res judicata and shall be made on the strength of a true copy of the judgement to be supplied to him by the Registrar.”
Judicial Proceedings
The plaintiff filed a sworn application before the FHCC requesting said Court to declare that his name is that which results from the Croatian Act of Marriage and therefore ‘Michael Debono Mrđen’, and to order the Director of the Public Registry to effect the changes required on the Acts of Marriage issued in Malta and all other acts of civil status issued by the Public Registry within 10 days.
By means of its decision dated 30th March 2023, the FHCC declared that the plaintiff’s name is that which results from the Croatian Act of Marriage and therefore ‘Michael Debono Mrđen’. However, the FHCC also decided that it is not possible for the Director of the Public Registry to include the letter ‘đ’ in the Act of Marriage issued in Malta, but it is possible for the Director to substitute the letter ‘đ’ with ‘dj’ so that phonetically the plaintiff’s name sounds more like its Croatian counterpart. The plaintiff felt aggrieved by this decision and filed an appeal.
By means of its decision dated 12th July 2023, the COA decided that the FHCC acted extra petita when it suggested that the letter ‘d’ shall be substituted with the letters ‘dj’ since no request was made to this effect by the plaintiff in his sworn application.
The COA then proceeded to analyse the provision of article 244 of the Civil Code and stated that the Director, in registering foreign acts shall make two observations: (a) that the act issued by a foreign authority involves a Maltese citizen; and that (b) the Director of the Public Registry is satisfied with its authenticity. Having seen that these two requirements are met, the Director has no leeway and is bound to register and replicate the foreign act in Malta in the same manner as it was issued abroad.
The COA also pointed out that Maltese law does not have any limitations on the registration of foreign acts which contain names which include letter that do not make part of the Maltese and English alphabet. The COA noted that in terms of article 278A of the Civil Code, the Director may only refuse to register name which (a) is shorter than three letters; (b) includes numbers or symbols; (c) is a common surname in Malta; (d) is derived from an obscene or offensive word or it consists of a word or words associated with sexual activity; or (e) exposes the child to ridicule or contempt. The Court also held that the fact that the system adopted by the Public Registry does not allow it to use letters which do not form part of the Maltese or English alphabet is not enough for the Director to decide to refuse the registration of a foreign Act of Marriage on the basis on inconvenience – adducere inconveniens non est solvere argumentum.
Decision
In light of the above, the COA overturned the decision of the FHCC and accepted the appeal of the plaintiff, and declared that the plaintiff’s name on the Act of Marriage issued by the Director of the Public Registry shall read ‘‘Michael Debono Mrđen’, and to effect the necessary changes required in all acts of civil status issued by the Director of the Public Registry within six months, failure of which shall result in a penalty of twenty Euro (€20) for each day of delay following the period prescribed.
Although, there is no doctrine of precedent of judgements in Malta, this judgement surely paves the way for all other individuals who have names which include letters which do not form part of the Maltese or English alphabet (as the two national languages of Malta) and their registration in Malta.
Partner Dr Marlon Borg and Associate Dr Francesca Micallef from the Civil & Litigation Department at DF Advocates represented the plaintiff.