An appraisal of putative marriage in Malta

Abstract

The present term paper is intended to analyse the concept of putative marriage in Maltese law, introduced by means of Act XXXIV 1981. Although a thorough examination of all the grounds of annulment will be provided, the main focus will be on fraud and simulation, Articles 19(1)(c) and 19(1)(f) of the Marriage Act, respectively. Generally, a marriage annulled on either of these two grounds leads to a putative marriage, and thereby a different approach is to be taken by the Courts. A putative marriage, being an exception to the Latin maxim quod nullum est producit effectum, seeks to protect those innocent parties who contract marriage in good faith, as otherwise these parties would not benefit from an otherwise invalid marriage. The notions of good faith and bad faith will also be examined since the former is a prerequisite of a putative marriage and therefore assessing the innocence of the parties is crucial as otherwise Article 20 of the Marriage Act would not apply. The principal objective of this study is to examine the civil effects of a putative marriage and how these benefit the parties in good faith as opposed to those in bad faith. The main focus will be on the rights of the parties in good faith, which also includes children, who are favoured when a marriage is invalid ab initio due to an impediment. An analysis of a number of concepts, including maintenance, children, the matrimonial home, and matrimonial regimes will be tackled, and how these are dealt with by the Courts following a putative marriage.