Adoption of Surnames By Spouses Following Marriage and Separation

Legislation regulating Surnames prior to 2020 Amendments

Marriages, Civil Unions and Separations in Malta are regulated by the provisions of the Marriage Act, Cap. 255, the Civil Unions Act, Cap. 530 and the Civil Code, Cap. 16 of the Laws of Malta.

Prior to the amendments introduced in 2017 of the aforementioned Acts, on entering marriage the wife could only:

1. adopt the surname of the husband, after which the wife may add her maiden surname or the surname of her predeceased spouse; or
2. choose to retain her maiden surname or the surname of her predeceased spouse after which she may add her husband’s surname.

Following the amendments introduced in 2017, spouses who entered marriage after the 1st September 2017 could either:

In the case of the spouse (wife) who adopted her husband’s surname on marriage, she shall have the right on separation to choose to either revert to her maiden surname or retain the surname of her husband. Either way such decision becomes irrevocable.

In time, such legislation was seen to be quite limited, creating certain issues for spouses that needed to be addressed for which the law did not offer recourse. Thus, the legislator enacted a number of amendments in order to address these shortcomings.

Legislation on Surnames Post 2020 Amendments

Act LXV of 2020 – ‘Civil Code and Various other Laws (Amendment Act), 2020 came into force on the 29^th December 2020. A number of amendments were introduced, with particular focus on those provisions of the Civil Code that regulated the surnames to adopted by spouses who were already married or on entering marriage, as well as the surnames of spouses after separation.

The provisions that were enacted were focused to provide a range of choices to the spouses in determining the surname of the family members upon marriage as well as on separation.

1. Surnames of Spouses Upon Marriage

Amendment number 3, to Article 4(1) of the Civil Code has introduced two further choices to those already in force, in terms of the 2017 amendments. Thus, as from the 29^th December 2020, spouses upon entering marriage now have the option to either:

•  both adopt the surname of one of the parties to the marriage;

• both adopt the surnames of both parties in the order of their choice (maximum 4 names); or

• adopt, for any one of the spouses, the surname of the other spouse, after which that spouse may add his or her surname; or

•  to retain, for any of the spouses, his or her surname, after which that spouse may add the surname of the other spouse; or

• to retain their own surname.

Furthermore, Article 4(2) of the Civil Code as amended, also stipulates that where one of the spouses elects any of the choices in accordance with sub-article (1)(c) or (1)(d), as per above, this choice shall be given only to one of the spouses. The law has retained that when the surname of any one or both of the spouses already has a combination of two or more surnames, the order of the surname of that spouse shall be retained, and the spouses shall not change such order and, or drop any part of their own surname.

Lastly, Article 4(2) of the Civil Code provides a clarification that in terms of the above, ‘surname’ shall include the surname of the spouse at birth or the surname at the time of the marriage: provided that where one of the spouses upon marriage elects to revert to the surname at birth, the other spouse may not elect to adopt or add the surname at the time of marriage of that spouse.

1. Surnames of Spouses Who Contracted Marriage before 29^th December 2020

It is to be noted that the above choices are also applicable retroactively to those spouses who contracted their marriage in Malta before these amendments came into force. Thus, couples who contracted marriage prior to the 29^th December 2020, also have the possibility to avail themselves of such amendments by submitting a Form Y with their request to the Director of the Public Registry, whereby such decision will then be annotated on their Act of Marriage.

1. Surnames of Spouses After Separation

By virtue of amendment number 8 to the abovementioned Act, Article 62 of the Civil Code is being replaced completely, however the changes implemented retained the option for spouses to choose on separation whether to either revert to their surname at birth or to retain their surname during marriage, but has clarified unequivocally that this is the only option available and may only be availed of on separation and not after marriage.

The legislator has felt that this amendment was required and clarity ascertained following a series of misconceptions. Moreover, it has now become mandatory that spouses filing for separation are required to also submit a Form Y at the Public Registry, if any of them wish to amend their surname after marriage. This form is to be filled in and submitted before an official of the Public Registry by one or both spouses before the deed of separation is finalized.