Malta is "actively considering" joining a growing EU initiative intended to smoothen the application of divorce and separation rules across member states, after having initially opposed it.
If approved, the new legislation would provide domestic courts in the participating countries with criteria to determine which national law should apply in international divorce or separation cases. It would affect couples of different nationalities, those living apart in different countries or those living together somewhere other than in their home country.
However, in Malta's case, a recently amended version of the proposal means the new rules would only apply when it comes to separation cases, and not divorce, which the island does not allow.
In its original form, the proposal would have meant that, say, a Belgian couple living in Malta could have their divorce case heard on the island under Belgian law. Malta has now been exempted from hearing divorce cases and would only be expected to hear those involving separation.
This legislation would be the first ever to be enacted under the EU's so-called enhanced cooperation mechanism - an instrument of last resort that allows a group of member states to set standards within the EU framework without engaging all member states.
The government's position, along with that of a number of other member states such as the UK, was previously to oppose enhanced cooperation in matters concerning family law. However, more member states are now showing interest in the initiative. In the circumstances, the government is having second thoughts.
"We are currently actively considering the possibility that Malta joins this enhanced cooperation initiative," Home Affairs Minister Carm Mifsud Bonnici told The Times when contacted yesterday.
"This initiative is something new and it might make more sense to be on the inside to influence the process rather than remain outside and others can decide for you," he said.
Commission sources told The Times that Malta's shift in position was to be expected. Just a few days ago, another three member states - Germany, Belgium and Latvia - declared they would be joining the original nine member states proposing the new directive.
"It is clear that many member states will eventually join this initiative and Malta cannot risk being left as the only country outside the discussions on this important legislation."
In preliminary discussions about the proposal held so far, Malta has assured itself that the new legislation will have no bearing on its anti-divorce stance, according to the sources.
"Malta needs to stay at the negotiating table to defend the text already agreed in favour of its position. If the island is absent there might be changes which Malta would no longer be able to influence," the sources said.
The government has until Thursday to make up its mind as a formal political agreement, needing just a qualified majority, is expected to be reached during a meeting of EU Justice Ministers in Luxembourg on that day.
"It seems that we will be able to live with the current text of the proposed legislation," Dr Misfud Bonnici said, hinting that Malta will be voting in favour of the initiative.
Austria, Bulgaria, France, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain had taken up the initiative after various attempts made by the Commission to introduce similar legislation failed.
This was mainly due to opposition from a number of other member states, particularly the northern countries, which wanted to safeguard their liberal divorce processes.
Malta is the only EU member state that does not permit divorce and the EU has no competence in this area.
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