https://www.um.edu.mt/library/oar/handle/123456789/9214 2026-04-23T19:36:44Z https://www.um.edu.mt/library/oar/handle/123456789/10530 Title: The sources of Maltese law as developed by civil jurisprudence since 1936 Abstract: Sources of law are of immense importance in a legal system, since they aid in the identification of a legal rule, which recognises and protects one’s rights and obligations, from one which is not. There is, however, no universally accepted definition or hierarchy of the sources of law due to a number of factors. Such inexistence also extends to the Maltese system, as the legislature has not established a list of the sources of Maltese law which are binding on the judiciary and/or which are authoritative interpretational aids. By way of introduction, this thesis attempts a generic analysis of the term ‘source of law’, and thereafter focuses on three particular sources – legislation, preceding judicial decisions and doctrinal writings. The role of, and authority attributed to these sources in the founding legal traditions – these being the civil and Common Law families – is examined briefly, since the Maltese legal hybridity is due to the influences which were derived from such systems. This thesis then presents an empirical study of legislation, jurisprudence and doctrine as sources of Maltese law, specifically focusing on the manner in which they were utilised, and on the authority which is attributed to them by the Court of Appeal (in its civil superior jurisdiction) over a specified period of time. The examination of seven specific years (which years start from 1936 and finish in 2014) over a period of approximately eighty years of decided and, at times, published judgments, will also pave the way to an informative examination of whether the role and status of these three sources of Maltese law were preserved or developed throughout the years. Description: LL.D. 2015-01-01T00:00:00Z https://www.um.edu.mt/library/oar/handle/123456789/10000 Title: Same-sex adoption : in whose interest? Abstract: The aim of this thesis is to explore and analyse the issue of same-sex adoption, both joint and second-parent adoption, in light of profound changes in people’s perceptions of what constitutes a family and groundbreaking advances in assistive reproduction technology, together with an increased acceptance of same-sex adoptions. These changes have catalysed same-sex couples’ readiness to enter into parenthood. The study explores the historical, social, moral, religious, legal and personal issues related to same-sex recognition and adoption. It addresses studies in this field, and attempts to lay bare the misconceptions, myths and barriers that make the adoption process a disturbing experience for same-sex couples. The experiences and narratives reported in a plethora of studies indicate that same-sex adoption furthers the interests of both the couple and the child. Consequently, the thesis examines the rights of the couple and the child. Such an analysis is likely to shed revealing light on what constitutes the best interests of the child in the matter of same-sex adoption. It advocates the principle of the paramountcy of the best interests of the child as the determining factor in every adoption placement. It also looks at the role of the State to safeguard the rights of all interested parties and act in conformity with international and EU instruments. The thesis also looks at the Maltese situation after the enactment of the Civil Unions Act,1 which has been instrumental in securing recognition of same-sex couples and legalising same-sex adoption. It delves into the background of same-sex adoption, the controversies and the reactions that it has caused and is still generating. Moreover, it examines the adoption process and safeguards within legislations that protect the child. Description: LL.D. 2015-01-01T00:00:00Z https://www.um.edu.mt/library/oar/handle/123456789/9920 Title: Conditions and clauses restraining the freedom to marry : are they lawful? Abstract: The question at the core of this thesis is: What conditions and clauses restraining the freedom to marry are permitted by our law? This question provokes many queries; particularly as to how the Maltese courts would deal with a contract which contains such conditions and clauses, and the aim of this thesis seeks to answer these questions. Restrictions on the right to marry may be found in various types of private instruments, which any person may make use of or encounter, in everyday life. Examples of such include: testamentary dispositions containing celibacy clauses, whereby the beneficiary would only be entitled to a certain legacy if he or she remains unmarried; a contract between two spouses agreeing to never opt for divorce; and contracts where parents donate a sum of money or property to their son or daughter on condition that he or she marries a spouse who is to their liking. Maltese legislation and jurisprudence indicates that this issue has not been specifically addressed with regard to contractual restrictions. Yet, as shall be illustrated, both under traditional legislation as well as under current Maltese law, various exceptions to the right to marry are, or have been permitted. It is the type and extent of such exceptions which makes the difference. The research undertaken indicates the Maltese courts are likely to be more tolerant of contractual clauses in partial restraint of marriage than courts in Italy or France would be. Description: LL.D. 2015-01-01T00:00:00Z https://www.um.edu.mt/library/oar/handle/123456789/9918 Title: The treaty of Lisbon : a step forward for children? Abstract: This thesis brings to the forefront an analysis on the EU’s children’s policy. Indeed, apart from the international and national levels of authority, these rights must be also taken into consideration on an EU level since its measures directly and indirectly affect children. With the main focus being the Treaty of Lisbon, which for the first time explicitly includes children’s rights as one of the Union’s objectives, this thesis examines whether this Treaty has been a step forward for children by improving the Union’s children’s policy. Therefore this involves a brief examination of its children’s policy in the years prior to the Treaty. To identify whether the LT has been a step forward, the criteria of a children’s policy are discussed in the light of the changes brought by the LT. Consequently, this thesis discusses whether a child rights perspective has been adopted in the Union’s acts and also evaluates its exercise of monitoring these rights. It also examines the indirect impact of the LT on the Union’s children’s policy. Finally, it assesses whether the Union has developed child focused structures, resources and investment to support children’s rights. Considering that this thesis has identified a number of shortcomings in the Union’s present policy, this thesis concludes by examining various avenues on how the Union can strengthen its children’s policy to ensure that children’s rights are adequately promoted and protected in accordance to its objective. Description: LL.D. 2015-01-01T00:00:00Z