In Malta divorce was not introduced until October 2011, despite civil marriage being introduced in 1975, except for the recognition of divorces granted by foreign courts. Indeed, it was the nationalist MP Jeffrey Pullicino Orlando who presented a private member’s motion for the introduction of Maltese divorce. In fact, on the 25th July, 2011, the parliament of Malta voted to legalize divorce. following a May referendum with a 53% of voters approve of divorce legislation while there were eleven who voted against and five abstentions.
How to divorce
Following the referendum, in Malta divorce legislation came into effect in October 2011. For this reason. It can be said nearly all countries around the world enacted divorce legislations, now including Malta. However, for the reasons mentioned hereunder, Malta’s divorce proceedings seem to be an excellent one since it ensures maintenance when this is due and takes care of the rights children and divorce.
In Malta divorce can be asked by any of the spouses who do not need to be separated from each other by means of a contract or judgment prior to the demand of divorce as provided for under article 66A of the civil code. In Malta divorce demand can be brought jointly by both spouses or else by one spouse only.
The Court shall be satisfied that the spouses have lived apart for a period of four years out of the immediately preceding five years. These four years do not have to run consecutively but have to be only cumulative. The court has to be satisfied that there is no hope of reconciliation and most importantly, that maintenance shall continue to run to the spouse and children as agreed before in the contract of separation or in accordance with the family law when this is due as provided for under article 66B.
An important note mentioned under article 66D is that for divorce Malta does not require divorce applications to show any fault by the party submitting such application on the part of the other party. However, when the parties are not yet separated by a court judgment or contract, they can also put forward those defenses permissible for the parties under separation. In Malta divorce can also be demanded during separation proceedings by means of an application filed by any of the parties involved before the final judgment as provided for under article 66F of the civil code. The same witnesses shall be heard as those presented in the separation documents but also, other witnesses can be presented that are related to the divorce proceedings.
Nonetheless, in Malta divorce applications can only be continued after the advocates of both parties and the court have attempted reconciliation as provided for under article 66I of the civil code. Moreover, in divorce proceedings it is important for the parties to agree on an agreement with the mediator. This mediator can only be chosen from the list of names provided for by the Minister. Any other mediator is not allowed since otherwise the agreement shall not be admissible during divorce proceedings, with regard to the following issues:
(a) the care and the custody of the children;
(b) the access of the two parties to the children;
(c) the maintenance of the spouses or of one of them and of each child;
(d) residence in the matrimonial home;
(e) the division of the community of acquests or the community of residue under separate administration.
Maintenance and divorce
In Malta divorce and then maintenance were of utmost importance being the most concerned issues to people. Indeed, the issue of guaranteed maintenance was central to the referendum question and was foremost in the legislator’s mind in legislating on divorce in Malta. Hence, in Malta divorce can be refused or can be granted with a guarantee imposed by the courts as provided for under article 66D of the civil code. This is the case if the spouse who files for the divorce fails to provide adequate maintenance for children or to his/her spouse. However, a spouse receiving maintenance from the other can also decide to renounce to that right.
Obligations towards children in divorce proceedings
During Malta divorce proceedings, the court may decide on its own motion to appoint a child’s advocate to hear the children and to ensure the guarantee of their maintenance to be paid by the responsible party. This shows that the divorce in Malta as provided for under article 66B of the civil code ensures the safety of the children’s rights and takes into consideration their well being and interest.
Maintenance after divorce
The new law categorically states that the pronouncement of divorce in Malta will not affect the rights and obligations of the parties as parents as shown clearly above.
However, article 66L of the civil code states that in Malta divorce pronouncements by the competent court give the right to the parties to remarry. The party receiving maintenance from the other party shall forfeit this right of maintenance as from the day of remarriage. This rule shall not apply in the case of when the party has received a lump sum from the other party.
Divorce and jurisdiction of the Maltese Civil Court
In Malta divorce proceedings shall be heard by the Civil Courts when one of the following requirements is present as provided for under article 66N of the civil code:
(a) at least one of the spouses was domiciled in Malta on the date of the filing of the demand for divorce before the competent civil court;
(b) at least one of the spouses was ordinarily resident in Malta for a period of one year immediately preceding the filing of the demand for divorce.