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The Civil Code (Amendment) (No. 2) Act (Act No. Xxiii Of 2010)

ACT No. XXIII of 2010

AN ACT to amend the Civil Code, Cap. 16.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-

1. (1) The short title of this Act is the Civil Code (Amendment) (No. 2) Act, 2010, and this Act shall be read and construed as one with the Civil Code, hereinafter in this Act referred to as "the Code".

(2) This Act shall come into force on such a date as the Minister responsible for Justice may by notice in the Gazette establish, and different dates may be so established for different provisions or different purposes of this Act.

2. Article 70 of the Act shall be amended as follows:

(a) subarticle (2) thereof shall be substituted by the following sub-article:
"(2) The declaration of the mother to the effect that the husband is not the father of the child shall be given consideration in an action regarding the exclusion of the paternity of the husband"; and
(b) in subarticle (3) thereof, for the words "The court may in an action of disavowal" there shall be substituted the words "The Civil Court (Family Section) may in an action of disavowal".

Short title and commencement.

Cap. 16.

Amendment of article 70 of the Code.

Verżjoni Elettronika

A 1124

Substitution of article 77 of the Code.

3. Article 77 of the Code shall be substituted by the following new article:

"Husband’s physical impossibility of cohabitation.

.

77. Without prejudice to the provisions of article 81, the filiation of a child born in wedlock may also be impeached by any person interested:
(a) if he proves that, during
the time from the three-hundredth day to the one-hundred-and- eightieth day before the birth of the child, the husband was in the physical impossibility of cohabiting with his wife on account of his being away from her or some other accident; or
(b) if he proves that, during
the said time the wife had committed adultery, and futhermore produces evidence of any other fact which may also be genetic and scientific tests and data that tends to exclude the husband as the natural father of the child.".

Addition of new articles to the Code.

4. Immediately after article 77 of the Code there shall be added the following new articles:

"Application for declaration of paternity.
77A. Without prejudice to the provisions of article 81, any person claiming to be the natural father of a child born in wedlock, or his heirs if the person was deceased before the child is born, may proceed by sworn application before the competent court against the wife, husband and child, or their respective heirs if any one of them is deceased, in order to be declared as the natural father of the child and only if he produces evidence that during the time from the three-hundredth day to the one-hundred- and-eightieth day before the birth of the child, the wife had committed adultery with him and futhermore produces evidence of any other fact which may also be genetic and scientific tests and data that tends to exclude the husband as the natural father of the child.

Verżjoni Elettronika

A 1125

Demand may also be exercised by the wife.

Sworn application filed within six months from the birth of the child.

77B. A judicial demand for a declaration of paternity as mentioned in the previous article may also be exercised by the wife by sworn application before the competent court against her husband, the natural father and her child born in wedlock only if she produces evidence that during the time from the three-hundredth day to the one- hundred-and-eightieth day before the birth of the child she had committed adultery with the person who is demanding to be declared as the natural father and furthermore produces evidence of any other fact which may also be genetic and scientific tests and data that tends to indicate that person as the natural father of the child.
77C. In the cases referred to in articles
77, 77A and 77B the person claiming to be the father of the child born in wedlock, or the wife as the case may be, may proceed with the action for the declaration of paternity if their sworn application is filed within six months from the birth of the child:
Provided that the Civil Court (Family Section) may, after the sworn application of the person claiming to be the father of the child born in wedlock or the wife and, if possible after having heard all the parties interested, and after having considered the rights of the plaintiff and the child, at any time authorise the person claiming to be the father of the child born in wedlock or the wife to institute an action for the declaration of paternity as mentioned in articles 77A and
77B:

Verżjoni Elettronika

A 1126

Examinations as referred to in article 70(3).

Provided further that, when the filiation of a person has been declared by the court, any person who in consequence of such declaration is to assume a surname other than the surname used by such person before such declaration, or his legitimate representative, may request the competent court by application against the Director of the Public Registry to be allowed to continue to use such other surname, and the court if it is satisfied that third parties will not be prejudiced thereby and, where the application has been done on behalf of the minor, that such use shall be in the best interest of the minor, shall accede to such request and order the Director to make an annotation of its decision on the relevant Act of Birth of the person whose filiation has been so declared.
77D. In actions which are referred to in articles 77, 77A, 77B and 77C, the court may invite the parties to submit to examinations as referred to in article 70(3).".
Passed by the House of Representatives at Sitting No. 294 of the
7th December, 2010.
MICHAEL FRENDO

Speaker

PAULINE ABELA

Clerk to the House of Representatives