Malta monitoring cross-border divorce proposal by EU countries

Malta is cautiously monitoring an initiative by nine EU countries pushing for enhanced co-operation over the recognition of cross-border divorces.

EU sources told The Sunday Times that after failing to agree on the European Commission's original proposal for the past three years, Austria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain have teamed up to formally request the Commission to launch a so-called enhanced co-operation mechanism on this issue.

This mechanism, provided by the EU treaties, allows a group of countries to move ahead in one particular area despite opposition from other states. However, it is still in its infancy and has never been tested before.

Although Malta has been asked by the French EU Presidency to state whether it is interested in joining this enhanced co-operation initiative, Justice Minister Carmelo Mifsud Bonnici said: "We will surely not be the first ones to propose enhanced co-operation on this matter. However, we are following what is happening with an open mind. We are adopting a wait-and-see approach and when this initiative develops further we will consider our position," he said.

Malta is the only EU member state which does not permit divorce, although it does recognise divorce judgments by foreign courts.

The original proposal, submitted by the Commission in 2005, did not propose to harmonise divorce across the EU, but just dealt with the issue of which law was applicable in case of cross-border divorces.

It proposed to provide a clear and comprehensive legal framework, covering both jurisdiction as well as applicable law rules in matrimonial matters and allowing the parties a certain degree of autonomy in choosing the competent court and applicable law in case of divorce.

Malta had managed to negotiate an 'opt-out' from this new directive, stating that the new rules would not apply to the island since it did not permit divorce.

However, the proposal still had to be ditched, particularly through Sweden's opposition which wanted to keep its more liberal divorce laws. The directive needed the support of all member states to become law.

Dr Mifsud Bonnici said Malta was satisfied with the 'opt-out', and he added: "We are now looking at this initiative of enhanced co-operation and if this finally comes to the negotiation table, Malta will also have to take a position," he said.

"Malta is not closing its doors to enhanced co-operation. On the contrary, we would consider co-operating with other member states on this issue while safeguarding our interests already achieved through the past discussions."

According to EU sources, the nine EU member states involved in this initiative will be presenting their formal request for an enhanced co-operation system on cross-border divorce next week.

It will then be up to the Commission to make a legal proposal based on the request. This proposal will then go back to member states where it needs to be approved by a qualified majority of governments.

Although the issue of divorce in Malta remains controversial, various declarations made recently by top political exponents indicate the issue will be discussed.

Prime Minister Lawrence Gonzi has gone on record saying the time is ripe to start debating the issue in Malta while Labour Leader Joseph Muscat said he intends to kick start a divorce initiative if his party is in government.