The annulment of a marriage may still allow a woman to receive a widow’s pension.
This was held in Lorenza Vassallo vs Director Social Security, decided on 17 July 2024 by the Court of Appeal presided by Mr Justice Lawrence Mintoff.
Lorenza Vassallo appealed from a decision given by an arbiter following a decision taken by the Director General of Social Security. Vassallo’s widow’s pension was removed because it was decided that she was not a widow of the deceased.
The Court analysed the facts of the case. In May 2023, Vassallo was informed that she was not entitled to widow’s pension under the Social Security Act, because she cannot be considered a widow. She explained that she was not aware of the annulment of marriage and her lawyer did not inform her of the annulment. The Director General replied in saying that once her marriage was declared null and void, then the Appellant was not entitled to a widow’s pension.
The Arbiter in his decision of 12 May 2023 explained that the Appellant was married to George Vassallo and in July 1997, their marriage was declared null and void. The widow’s pension is intended for married couples and an annulment means that the marriage never took place. Therefore, she was not entitled to the pension.
Vassallo appealed the decision, as she challenged the notion that an annulment means the marriage never took place. The 1975 Marriage Act allows the law to recognise the effect of marriage after annulment. The Appellant explained that marriage is not an ordinary contract, but it is regulated by a special law. Article 20 of the Marriage Act states the effects of the marriage remain valid until the marriage is declared null and void and as long as both spouses were in good faith. Vassallo argued that they had entered in marriage in good faith.
Vassallo also argued that she had paid taxes before the marriage was annulled. The taxes were paid during marriage and therefore part of the community of acquests. As a result, she had a right to receive a pension. She worked and therefore, should expect a pension independently from her former husband. She also argued that the contribution to a pension should be considered as an investment during the period between her marriage and the declaration of annulment. What her husband paid in this period is hers as much as her former husband’s.
The Court of Appeal in its ruling referred to another Court of Appeal judgement decided on 26 June 2015, Felicity Muscat vs Director of Finance et.
In this judgement, the court had held that a marriage is valid until it is declared null. Annulment, however, cannot ignore that the parties did have a relationship as spouses. Traditionally the courts have made a distinction between marriages that are voidable and those which are void. This distinction can be seen in Article 18 and 19 of the Marriage Act. A null act is null from the beginning. A voidable act becomes null when it is declared null, however, there are juridical effects from the beginning. Article 20 of the Marriage Act states that the marriage is valid until it is declared null and void. It is qualified in that the marriage has to be in good faith.
Therefore, if these circumstances exist, there would have been a community of acquests and the children would have been legitimate children.
The Court of Appeal agreed with Vassallo that she was entitled to a pension until the marriage was declared null and void. The Court also made reference to Article 42A of the Social Security Act which states that the widow’s pension should be given to the widow, even if the spouses were divorced, in proportion to the period of time the spouses were married to each other. The Court held that this principle should apply in this case also.
The Court of Appeal, then moved to uphold the appeal and revoked the Arbiter’s decision not to allow the Appellant to receive a widow’s pension.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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