By Dr. Nicole Vassallo – Junior Associate
Many a time do lawyers find themselves engaged by clients seeking to avail of a civil remedy against a defendant whose residential address, or even whereabouts, are unknown. This is becoming more common in family cases in Malta involving foreign parties who would have departed from Malta after attempting to build a new life away from their home. This scenario calls for the appointment of curators, which notion is envisaged by Article 930 of Chapter 12 of the Laws of Malta.
Curators (known as kuraturi deputati in the Maltese language) are tasked at Law with safeguarding the best interests of the person they represent with utmost diligence. Where the defendant’s address is unknown by the person instituting the action, curators are bound to do their best to try to contact the person whom they represent and take all possible measures to identify their place of residence. Should they succeed, they must inform the person of any judicial act and of its contents and to continue looking after their interests with utmost diligence and responsibility. If the person’s address remains unknown despite the curator’s efforts, he is then bound to take all the necessary measures to safeguard the person’s rights.
The Law contemplates other situations besides the one mentioned in the first paragraph, in which the need for curators might arise, for reasons including but not limited to; representing the interest of any minor not legally represented, representing a person with a mental disorder or other condition that renders him incapable of managing his own affairs, as well as any interdicted person. Curators may also be called upon to represent the interests of any person presumed to be dead, where any other person claims to succeed to the rights of such person, as well as the interest of any commercial partnership or any body of persons where any of the persons vested with its representation are absent from Malta.
The demand for the appointment of curators must be lodged by means of an application to be filed simultaneously with the lawsuit (or any act whereby the action is commenced). In other situations, where the necessity to appoint curators arises after the commencement of the lawsuit, the application may be made in writing in the course of the proceedings or even by means of a verbal demand during the hearing of the suit.
In a family context, the need for curators might arise in cases where a parent of foreign nationality (called the “deserting parent”) who would have been residing in Malta together with his/her partner or spouse (called the “deserted parent”) and minor children, abandons the matrimonial home and returns to his/her country of origin, leaving the deserted parent (who is of Maltese nationality or otherwise) to raise their children without disclosing his whereabouts and cutting ties with the family altogether. In cases where the care and custody of the children is vested in both parents jointly, which takes place by way of default under Maltese Law, the deserted parent will require the deserting parent’s signature and consent prior to making certain decisions concerning the minors’ health and education. This situation has also proved to be a nuisance for parents whose minor children are not yet in possession of a passport and who must apply for a new one in order to travel for leisure or even for academic purposes.
Taking the above scenario as an example, the deserted parent must file a lawsuit in the Family Section of the Civil Court to demand the exclusive care and custody of the minors, and in parallel to the lawsuit, file an application for the appointment of curators to represent the deserting parent.
The next step after the Court makes an order for the appointment of curators, is the issuing of the banns (il-bandi) which are posted up at the entrance of the Court building. If the deserting parent, in the scenario mentioned above, has close relatives or friends who reside in Malta, a copy of the banns and the pleading must be served on said relatives or friends, and where no relations are known, these must be published in the Government Gazette and in at least two daily newspapers. This shall be done at the applicant’s expense. Any person interested in accepting the appointment shall have six days within which to do so, which acceptance is subject to the Court’s confirmation of the curator so appearing. If, however, no one lodges an acceptance to the appointment within the time frame stated above, the Court shall appoint as curators an advocate and a legal procurator from the rota established by Law.
Curators have a duty to exercise their best diligence for the benefit of the interests they represent. In the event of misconduct or negligence on their part, or should there arise any reasonable objection to the curators selected from the rota for any reason, the Court may exercise its authority to remove them from the case and appoint others from the rota in their stead.