The Parliamentary Committee for the Consideration of Bill has started its detailed scrutiny of the Bill introducing divorce, with Parliamentary Secretary Mario de Marco warning against over-legislation.
Agreement was reached on the clause that defined the way spouses applied for divorce. It was agreed that each of the spouses had the right to file for divorce. Where the spouses agreed, they had to file a joint application with the competent civil Court.
Such a joint application would be filed by means of a public deed authorised by a decree of the court. Where there was no agreement between the spouses, the competent court had to give a judgment. Immediately afterwards, the Director of the Public Registry would be notified. Discussion focused mainly on Clause 66 of the Civil Code which established the four-year separation as a condition to apply for divorce and maintenance to be given.
Questions arose relating to spouses separated but living apart in the same household, with joint proposer of the bill Evarist Bartolo (PL) saying divorce should not only be given to spouses affording and living in two separate residences but also to couples who could not afford this luxury and were still living under the same roof.
Marie Louise Coleiro Preca (PL) said that the court had the means to verify the truth in such situations to curb abuse pointed out by Francis Zammit Dimech (PN). Jeffrey Pullicino Orlando, the other joint proposer of the bill, said there was agreement among the PN parliamentary group that there should be no form of advantage to those residing in separate residences.
Mario de Marco said that the text of the bill was similar to that in Irish law, adding that judges had to interpret this clause by looking at the original source.
Dr Debbie Schembri, who chaired the Yes campaign and who was present for the debate together with Attorney General Peter Grech and Dr David Thake, confirmed that the wording on living apart had been taken from Irish legislation.
Another point of discussion was that in non-consensual separation, the four year-period required for divorce had to apply from the date that the application for separation was made.
In reply to comments by Dr de Marco, that there should not be any discrimination between no fault and fault divorce in the filing of the application, Dr Schembri said that this was covered in the PL proposal which avoided misinterpretation. It gave discretion to the court to decide what type of proof one had to bring to ascertain the four-year period of living apart.
Dr deMarco disagreed with the mention of marriage breakdown in the Labour amendment as this would lead to confusion between fault and no fault divorce. He said there was no need to over legislate.
Jean Pierre Farrugia (PN) referred to maintenance to disabled persons. He said this had to include persons with chronic mental illness. There was a lacuna in Maltese laws on the degree of mental disabilities. Maintenance had to be proportional to the degree of disability.
Dr Pullicino Orlando replied that disability covered a wide spectrum of cases.
Carmelo Abela (PL) said that besides maintenance one had to consider entitlement to social benefits given to people with disability. Discussion also ensued on the extension of maintenance to youths studying up to the age of 23 years. This choice was in conformity with the education policy and the maturity clause for university studies. Dr Schembri said that this was necessary because once young people reached the age of 18 they had to file a court case to retain maintenance if they were still dependant on the custodial parent.
Owen Bonnici (PL) said that the opposition wanted to change the original proposal on the step-parent to ensure that maintenance of a child from the first marriage remained the obligation of the natural parent.
Dr Pullicino Orlando emphasised that the clause was inserted to protect fostered and adopted children. Dr Zammit Dimech said that one also had to consider that the child was living in a new family unit and had to be integrated within that unit.
Dr Schembri said conflict arose where the parent of the child was unknown or where the parent had abandoned the family and could not be located.
Notary Coleiro Preca said that natural parents had to carry their responsibilities. Where the parent abandoned the family or was living on limited means, the state had to intervene.
At the end of the sitting, chaired by Deputy Speaker Ċensu Galea, Dr Zammit Dimech distributed a consolidated document containing both parties’ positions and other remarks including a possible compromise on items discussed.