Divorce and Then

Divorce and a New Life

Upon the pronouncement of divorce by the Maltese Courts, every person has a right to remarry and to start a new life with another partner. Hence, divorce and a new chapter in life seem to follow each other. However, this remarriage can have repercussions in the sense that if the spouse used to receive maintenance from the other spouse, such maintenance will stop upon remarriage of the spouse who was receiving such maintenance.  One is to note that upon separation in accordance to Maltese Law spouses still owe each other fidelity to one the spouse who is receiving maintenance engages in a relationship with another person s/he forfeit his/her right to maintenance from the other spouse.  Moreover, the spouses will continue to enjoy the joint and legal custody of their children and divorce and a new life of the spouses when one or both of the spouses remarry do not change that. Hence, although divorce implies the start of a new life, both parents continue to have the obligation of maintenance towards their children until the age of twenty three years old in the case of those children who are furthering with their education while until the age of eighteen years old in the case of those children who stop from furthering with their education.  Each case has to be seen in its own merits.

Divorce and the State

When one says that upon the pronouncement of divorce and then one one can remarry, this means that one can only remarry by virtue of the civil marriage. Hence, divorce and the State can be considered as one thing while the Church and its annulment proceedings have to be considered as another totally different thing. Indeed, divorce is only pronounced by the State which can be resorted to by any of the spouses, both if they are already separated by a pronouncement or judgment and even if they are still not yet separated. The only important condition that needs to be satisfied for the Maltese courts to accept a Malta divorce application is that the spouses have lived apart for four(4) years out of the preceding five years from the date of application for divorce and then there has to be no probability of reconciliation of the applicants.

Hence, a person has to make a distinction between the civil marriage and the church marriage. The State offers a person to resort to either separation proceedings, to divorce proceedings or even to annulment proceedings. However, a distinction shall be drawn between the three (3) types of proceedings, themselves since they have different implications. Divorce and then the implication that a person has an absolute right to remarry, mean that one will lose any maintenance that is person receiving from the other spouse, annulment also means that the spouses can remarry since the first marriage is declared as non existent and none of the spouses can ask for maintenance from the other spouse since such marriage is declared non existent while separation means that the spouses can stop cohabiting together but cannot remarry and maintenance can be asked by any of the spouses from the other spouse.  The Courts will take into  consideration the means of both spouses to come to a decision if there is the need to provide for maintenance by any of the spouses to the other spouse or otherwise.

Annulment can be pronounced by the State on the grounds as indicated in the Marriage Act. The said Act provides for an exhaustive list from which the Maltese Courts decide if there is the possibility for an annulment decision or otherwise.

On the other hand, separation is only pronounced by the Court if one of the following four (4) cases arises, which are:

1. adultery
2. excesses, cruelty, threats or grievous injury
3. desertion (but four years have to pass from the date of marriage to be cited by any spouse)
4. irreconcilable characters (five years have to pass from the date of marriage to be cited by any of the spouses)

Hence, two important distinctions seem to arise between divorce, annulment and separation being:

1. remarriage
2. maintenance

Nonetheless, a common characteristic between these different types of pronouncements is that maintenance for children is always granted by both spouses even if any of the spouses remarries and even if the marriage is declared null.

Divorce and the Church

The universal acceptable thinking is that a person can only celebrate a Church marriage once in his or her entire life, unless such marriage is pronounced annulled by the Ecclesiastical Tribunals but such annulment procedure can take time. However, if a person wishes to resort to such annulment, he can do so but one has to bear in mind that such annulment is only given in specific cases mentioned in the Canon Law, with the Ecclesiastical Tribunal having full discretion to decide to approve such annulment or otherwise. Nevertheless, for a lawyer in Malta to represent a person in such Tribunal, he or she must be qualified to do so.

A rather significant point to make is the distinction between the State annulment and the Church annulment where although a person might be able to obtain the annulment of the State, this in no way will guarantee the same person the annulment pronounced by the Ecclesiastical Tribunal. Thus, it might be the situation where a person’s marriage might be declared null for the State but not for the Church. This leads to the issue that annulment pronounced by the Maltese Courts will in no way give a person the right to remarry in Church.  One cannot institute parallel cases both in the in Ecclesiastical Tribunal and before the Courts of Malta.