No right to marry wherever one likes (Malta, First Hall, Constitutional jurisdiction)

24 May 2010, Valletta, Ref Rikors Nru. 24/2008. Plaintiffs, a German woman and a Nigerian man, wanted to get married in Malta. The Marriage Registrar refused their request for the publication of the marriage banns, because the Nigerian was unable to present a valid visa (his visa had in fact expired and the immigration authorities refused his application for renewal).

The Court considered the Marriage Registrar’s requirement to be a valid one. Since the Nigerian was a third party national, the Marriage Registrar had every right to demand evidence that he was in Malta legally before allowing him to marry under Maltese law.
 
The plaintiffs claimed that this requirement breached articles 8 (respect for private and family life) & 12 (right to marry and found a family) of the European Convention on Human Rights (ECHR).
 
Defendant pleaded that since the couple were not married, they could not be considered to be a family. The Court on the other hand held that the term ‘family’ had to be interpreted widely, to include a cohabiting couple and a couple who intended to get married. In this regard, it referred to Abdulaziz et v. UK.
 
On the other hand, the Court held that art. 8 did not allow persons a right to establish family life, nor did article 8 protect the right of the individual to live in a particular state.
 
Nor did article 12 extend to a right to marry in a particular place. The Court observed that there was nothing to stop these two individuals from marrying either in Germany or in Nigeria.
 
The German plaintiff also claimed a right to found a family in Malta under article 43 of the Consolidated Version of the Treaty of the EU. The Court found no breach of this right; on the other hand whereas Citizens of the EU have a right to move and reside freely within the territory of the Member States, and Directive 2004/38 extended this right to families irrespective of their nationalities, the same Directive defined ‘family members’ in such a way that the Nigerian man did not qualify.
 
Finally, plaintiffs referred to an Ombudsman recommendation in favour of rejected persons’ right to marry. The Court held that the ombudsman’s recommendations were not binding, and since the Nigerian was not a rejected person his situation did not fall into any of the scenarios that the Ombudsman had investigated.
 
To read the judgement proceed to http://docs.justice.gov.mt/SENTENZI2000_PDF/MALTA/CIVILI%20PRIM%20AWLA%20(SEDE%20KOSTITUZZJONALI)/2010/2010-05-24_54-2008_61511.PDF