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The Maltese Divorce regime came into force on the 1st October, 2011 and is now regulated by the Maltese Civil Code. Separating couples will, have an additional option to consider if their marriage breaks down to a point of no return. There are many issues for spouses to weigh before taking the plunge, not least of which (apart from the emotional distress) involve onerous decisions relating to asset division, maintenance, child support and the care and custody of the minor children born during marriage. The new divorce law is not intended at providing easy exit routes to what may be temporary, fixable marital crises. This is a brief ten-point overview of the main features of the new divorce legislation, with a particular emphasis on the procedures which going down the divorce route will entail.
1. Who Can Apply for Divorce in Malta?
In order to be able to institute divorce proceedings in Malta, at least one of the spouses must be domiciled in Malta on the date of institution of proceedings or was an ordinary resident of Malta throughout the period of one year ending on that date. (Article 66N)
2. Separation of Four Years
Only couples, who have lived apart for at least four years during the previous five years prior to the institution of divorce proceedings or have been legally separated for at least four years can apply for divorce. Couples who do not meet this requirement can still apply for a pronouncement of judicial separation or separate consensually by public deed.
{Article 66B(a)}
3. No Reconciliation
An application for divorce will only be entertained if there is no reasonable prospect of reconciliation between the spouses.
{Article 66B(b)}
4. Maintenance
Divorce will only be permitted by the Maltese Courts if both of the spouses and their children are adequately maintained in accordance with the applicable provisions of the civil code.
5. Legal Assistance
Legal assistance is a must to provide parties with the required advice and filing applications in Court. If either of the parties cannot afford to engage a lawyer to represent them, they can also apply for legal aid.
6. Legal Duty to Suggest Reconciliation/Mediation as an Option
Where the couple is not already legally separated, it is a specific legal duty of the lawyer handling the divorce proceedings to discuss with the applicant or respondent (depending on who the lawyer represents) the possibility of reconciliation and to provide his client with the contact details of persons qualified to help to the parties with reconciliation or mediation. (Article 66G(2) and Article 66H)
7. Application for divorce
Once a decision to go for divorce is taken and assuming all the essential conditions for doing so exist, an application for divorce must be filed before the Civil Court (Family Section). The application by which proceedings are instituted shall be accompanied by a note confirming that the applicant’s lawyer provided him or her with the contact details of qualified persons for a possible reconciliation or for mediation and that the party was made aware that separation is another option. Alternatively, if the spouses are already legally separated, they are exempted from the need to go through any reconciliation or mediation processes and the application must simply be accompanied by the judicial decree of separation or by the contract of consensual separation evidencing that the applicant and his or her spouse have been legally separated for more than 4 years. In addition to this where an application for divorce is made by one of the spouses, it will not be necessary for the spouse making the demand to impute to the other party any fault leading to the making of such demand.
{Article 66G (2) and Article 66D(1)}
8. Interim Measures pendent lite
Although it is likely that a couple applying for divorce and therefore living apart for four years, would already have sorted out most of the patrimonial, financial and child custody/access issues between them, either spouse may still apply for interim measures at any time following the commencement of divorce proceedings including measures relating to maintenance, the occupation of the matrimonial home and the care and custody of children.
(Article 66I)
9. Procedures in Court
If everything or most matters is/are sorted out by the divorcing spouses prior to the institution of the action for divorce, the hearing of the case itself should be relatively brief although one would expect the Civil Court to play an active role in ensuring that the parties are fully aware of the decisions taken by them. Any verbal and written communication between either of the spouses and a third party for the purpose of seeking assistance to effect a reconciliation or to reach agreement between them on some or all of the terms of divorce, and any record of such communication, made or caused to be made by either of the spouses concerned to a third party shall not be admissible as evidence in court.
(Article 66K)
Similarly to the current procedures regulating separation, a divorce can be obtained by a judgment of the Civil Court or by means of a public deed entered into consensually by the parties as duly authorised by a decree of the same Court upon the filing of a joint application submitting a copy of the deed for the Court’s approval. The divorce or dissolution of the marriage shall be granted by virtue of a judgement of the competent civil court, upon the demand of one or the other of the spouses, or by a decree of the same court where the spouses shall have agreed that their marriage should be dissolved.
10. Effects of Divorce
Where the Court grants a decree of divorce, the marriage is dissolved and the parties may remarry. A divorce decree does not affect the parental rights and duties of the divorced parties over their children as well as any agreement reached between the spouses regarding joint custody.
{Article 66L(1)(2)(3)}
11. Transitory measures
Parties to separation proceedings which were still pending on 1st October 2011 and which have been pending in Court for at least four years, may request the Civil Court to pronounce divorce between the parties instead of personal separation. This option is available provided a request is made to the Court within three months from the date of the coming into force of the law.
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