‘Divorce Bill guarantees right to alimony, not actual payment’

When Parliament started the debate in second reading on the Divorce Bill yesterday its proposer, Jeffrey Pullicino Orlando (PN), said the guarantee of adequate alimony, which had been widely questioned by the No camp in the referendum campaign, regarded the right rather than the actual payment. The legal mechanism to recover unpaid alimony already existed at law. Legally one could legislate on divorce without guaranteeing alimony.

Piloting the Bill, seconded by Evarist Bartolo (PL), he said that in the referendum the people had, in essence, decided against forced cohabitation. The issue of no-fault divorce had been a solid part of the No campaign, but he felt very strongly that Malta should learn from the experiences of other countries that had accepted fault-based divorce.

There were many types of no-fault divorce. The Irish type, the most conservative legislation in the world, was the basis of the Maltese Bill because it was by far the more responsible procedure, doing away with renewed acrimonious legal battles between the couple.

With divorce being resorted to only after four years of living apart with no hope of reconciliation, the “guilty” party would have already been imputed fault in the separation procedure, which itself was a no-fault process.

In the case of couples who separated de facto and went straight to divorce it made sense for the court to agree on the basis of fault.

Dr Pullicino Orlando said suggestions were being made to change the Civil Code regarding the sepa­ration of the couple’s assets. During the referendum campaign there had been campaigners who had tried to deceive the people. Divorce should be based on the court’s original reasons for agreeing to separation.

The Bill left it to the court’s discretion to order the suspension of the community of assets.

If the court declared one party as not capable of the custody of minor children, that party would not be able to take custody of them even if the other party died.

Dr Pullicino Orlando said one important point was how to decide adequate alimony. On the confirmation of divorce the court would have to decide on levels of alimony unless the parties agreed otherwise.

There would be considerations on any physical disability in one party, the past or probable contributions by each party to family and home, as well as the capacity of earnings including those given up for the same reason.

The Bill contained a section on lawyers’ responsibilities to see that all avenues of reconciliation had been exhausted and there was no possibility of mediation. Personal separation could still be resorted to as an alternative to divorce if there was the minimal possibility of saving the marriage.

When the party winning alimony remarried, the other party would have no obligation to continue to pay such alimony. Children suffered anyway whether in annulment, separation or divorce. The legislation being proposed was keeping this firmly in mind, but any way to place the children in a better situation, certainly not worse, would be warmly welcomed.

It was well known that children suffered more during the process than after, especially if they were made to point fingers at one or other of the parties.

The proposed legislation also went into the issue of alimony for children if they continued to study beyond 18 years of age.

Dr Pullicino Orlando said an important additional proposal was that if the court gave the children to one party in marriage, it did not mean it had to confirm the award in the divorce decree.