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.