As Parliament starts debating the divorce Bill, Christian Peregin speaks to family experts and lawyers about the draft before MPs.

Having been presented as a series of “amendments to the Civil Code”, rather than a Divorce Act, the proposed legislation could ostensibly be seen as a minor adjustment to the law. But anyone with experience in the Family Court knows this will be a major change to a system that has been neglected, rather than perfected, over the years.

Many believe the brunt is generally faced by children whose interests tend to be given less than due importance. One of the aspects worrying lawyers in the proposed legislation is that it replaces the word “children” with “dependant members of the family”.

Child advocate Ruth Farrugia believes children should be identified as individuals with particular rights rather than being lumped together with other dependants. She also thinks the new term is inadequate without a Civil Code definition of “family”.

Family lawyer Emmy Bezzina thinks this lack of definition makes the phrasing ambiguous and possibly lead to abuse. He points out that everyone has a fundamental right to family life but, without a definition at law, things get to be confusing. Joe Gerada, the former CEO of the government’s Foundation for Social Welfare Services, believes the Bill should ensure the couple’s children are allowed to voice their opinions face-to-face with the judge, if they so desire.

“The judge should listen to what the children have to say and take a final decision about divorce with this in mind,” he says, adding, therefore, that there is a need for minors to be truly represented during proceedings by the child’s advocate.

Dr Farrugia thinks legislators should take the opportunity to amend “outdated terms” relating to children, changing words like “custody” and “access” to “residence” and “contact”.

Another concern, raised by Dr Bezzina, is that divorce is being legislated as a series of amendments to the Civil Code rather than through a separate Divorce Act or a part of the Marriage Act. He believes many issues that have nothing to do with the dissolution of a marriage are being thrown in the mix unnecessarily. One of these issues is the proposal to ensure children in tertiary education are given maintenance until the age of 23, both in divorce and in separation cases. The amendments also stipulate that children should continue to be maintained if they have mental or physical disabilities that impair them from maintaining themselves.

Dr Bezzina thinks these and other important matters should have been regulated under other articles of the law and not as part of divorce legislation because it could be seen as a way of dissuading people from using their right to divorce. It will lead to many constitutional challenges, he says.

Pointing out the maintenance during education issue, Dr Farrugia wonders what will happen in the cases of a musical or stage career, apprenticeships or special situations warranting a part-time course.

Matrimonial and family lawyer Lorraine Schembri Orland hopes the clause providing for maintenance while children are studying will be accepted. “It is high time we establish guidelines or automatic indexing of maintenance, which would allow for more equitable treatment of the parties and eliminate inequalities as far as possible.”

She is worried, however, that unlike the Irish Family Law (Divorce) Act, which the local law is based on, the Bill is “silent” on pensions, except for a reference to the consideration, when establishing maintenance, of the loss of a benefit under a pension scheme. Contributions to a pension scheme made during marriage by one spouse should be considered as part of the other spouse’s entitlement, she argues. “Who will be the survivor spouse for the purpose of the widow’s pension? It would seem that the first or former spouses would not be entitled,” she says, adding that pension sharing orders should be granted upon separation and divorce, to avoid future doubt.

Dr Schembri Orland is also concerned about the issue of “no fault”, which allows people to ab­an­don their marriage for four of the last five years and “wait it out” while victims who want a divorce must also wait the whole period.

Although she acknowledges that this concept was approved at the referendum, Dr Schembri Orlando thinks it would have been better to give victims a remedy without having to wait for four or five years to lapse.

Therese Comodini Cachia also focuses on the law’s insistence that a couple must have lived apart for at least four years before instituting divorce proceedings. The period of four years need not be continuous and may be made up of a number of periods that together amount to four years as long as they occur in the previous five years.

“The first question that comes to mind is: How does one prove the aggregate periods of time, especially when the spouses are not in agreement?”

The proposed legislation also allows for the possibility of filing for divorce while separation proceedings are still pending, which Dr Comodini Cachia fears will lead to a “multiplicity of proceedings” and abuse.

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