A dummy’s guide to the divorce Bill changes

With the help of Nationalist Party backbencher Francis Zammit Dimech and Labour MP Owen Bonnici, Kurt Sansone wades through the salient changes to the divorce Bill that will be voted upon tomorrow in Parliament.

It all started in July last year when Nationalist backbencher Jeffrey Pullicino Orlando took everyone by surprise and presented a Private Members’ Bill for the introduction of divorce.

Tomorrow, 12 months and a Yes referendum result later, Parliament will embark on what is the final leg of a long and winding road to introduce divorce in one of only two countries worldwide where it was not legal.

Members of Parliament will be asked to vote on a series of changes to the divorce Bill with the vote on the third and final reading being taken soon after. If the Bill garners a majority it will become law on October 1, providing the President gives his assent.

In the second reading, the divorce Bill co-sponsored by Dr Pullicino Orlando and Labour MP Evarist Bartolo was carried with 44 votes in favour, 13 against and 12 abstentions.

Since then, a parliamentary committee chaired by deputy speaker Ċensu Galea has gone through the Bill with a fine-tooth comb to suggest changes in a bid to improve it.

The exercise was laborious, involving hours of lengthy and at times stormy meetings, which sometimes went on into the early hours of the morning.

But in the words of Labour MP Owen Bonnici and Nationalist MP Francis Zammit Dimech, the result is laudable because the numerous changes garnered unanimous support within the cross-party committee.

Dr Bonnici was entrusted by the Labour Party to coordinate the changes proposed by his party’s MPs and to engage in talks with Dr Zammit Dimech, who has been coordinating the Nationalist Party’s position.

“The aim of the changes was to strengthen the general principles on which people voted on and heed the constructive criticism that was made throughout the referendum campaign,” Dr Bonnici said.

He added that the brief given to him by his party was to keep the national interest in mind because the country needed “a healing process” after a divisive referendum campaign.

“The national interest required us to come out with a Bill that was better and which enjoyed the widest consensus possible,” Dr Bonnici said.

Talking about his experience in dealing with Dr Zammit Dimech, the Labour MP said he initially found his counterpart a tough nut to crack and almost authoritarian in approach. This gradually changed though as the debate progressed.

“I understand he was in a delicate situation trying to bridge the three different and equally strong blocs that emerged in the PN after the vote on the second reading. Today I believe it was important to have him on the other side because unanimous agreement on each clause would have been impossible to achieve. He has the experience and ability to make two disagreeing people arrive at a common position.”

The feeling was reciprocal, with Dr Zammit Dimech saying it was “very satisfying” to work on a professional basis with all other members taking part in the committee stage, including Dr Bonnici.

Dr Zammit Dimech said it was his privilege to serve as the coordinator of the PN parliamentary group’s position.

“My aim was to achieve maximum possible congruence and do my part to give the nation the best possible law in the circumstances,” he said.

The divorce Bill is not a stand-alone law but a series of changes to the Civil Code with new sections referring to divorce. The single-most important principle approved by the people in the referendum – the four-year lapse between separation and divorce – has been retained with changes made to beef up the other principles relating to maintenance and the care of children.

The issue of maintenance was posited as a stumbling block for voting in favour of the Bill by Prime Minister Lawrence Gonzi.

Dr Gonzi argued that the Bill did not “guarantee adequate maintenance” as the referendum question had stipulated. “No amendment can guarantee maintenance,” he had said while explaining his vote against the Bill during the second reading in Parliament.

However, while insisting that the concept of guaranteed maintenance “cannot ever be absolute”, Dr Zammit Dimech said the committee agreed that the court could impose a guarantee on the party obliged to pay maintenance.

The guarantee may be a general hypothec on the person’s present and future property, a special hypothec on specific property, or a bank guarantee.

However, the guarantee cannot exceed in value the equivalent of five years worth of maintenance payments.

Additionally, the court may refuse to grant a divorce to the person filing the application if that individual had defaulted on maintenance payments to his wife and children.

This, Dr Zammit Dimech explained, was based on one of the conditions for divorce outlined in the referendum question.

MPs will tomorrow vote on each of the clauses and sub-clauses to be changed. The amendments will be presented alternately by Dr Zammit Dimech and Dr Bonnici with each of them seconding the other’s amendment.

After the amendments are voted upon, MPs will then be asked to vote on the Bill as amended, concluding the parliamentary process and closing the divorce chapter.

Main changes

Guarantee on maintenance

The court will be able, wherever it deems necessary, to impose a guarantee on the party obliged to pay maintenance. The guarantee can take the form of a general hypothec on the person’s present and future property, a special hypothec on specific property, or a bank guarantee. However, the guarantee cannot exceed in value the equivalent of five years worth of maintenance payment.

Divorce not granted

The court may decide not to grant divorce if the person who files the application has defaulted on the obligation to pay maintenance during the previous four years.

Curbing abuse of social services

When the judge decides on maintenance, non-contributory social assistance will no longer be calculated. This means that the court would first establish the maintenance the person can afford and if need be the state would supplement the other spouse’s income with social assistance. Today, if one of the parties is entitled to social assistance the other party may not pay maintenance.

Maintenance for 23-year-old children

All parents will have to maintain their children up to the age of 23 (this is currently 18) if they are full-time students, if the parents can afford it and if the children cannot maintain themselves adequately.

Obligations of step parents

In certain circumstances step-parents will have to assume maintenance obligations towards children of the divorcee from another parent such as when the natural parent is dead, absent or unknown. If the second marriage fails, step parents can ask the court permission to see the step children. The court will act in the best interest of the children.

Unfit parent

For the first time a parent may ask the court to declare that the other parent is unfit to take care of their minor children. If the court accedes to the request and the parent who has custody of the children dies, the unfit parent will not have an automatic right to obtain custody.

Freezing the community of assets

The court will be able to freeze the common property of the married couple that is going through a separation to prevent a situation whereby one of the parties enters into commitments, including loans that would also be lumped onto the other party.

Separation of assets after divorce

When the parties have not yet separated formally, either through mutual agreement or by a court sentence, and if they both agree, the divorce can go through immediately (as long as it satisfies the four year clause) and the common assets will be divided at a later stage. This is beneficial if a detailed report on the value of a business is required and if the market is not right to sell the matrimonial home.

From separation proceedings to divorce

All pending separation cases can be transformed into divorce proceedings by simply asking the court and as long as the four year requisite is satisfied. This will reduce expenses for the parties.

Court decree on joint application

Where the parties to a divorce make a joint application all relevant conditions will be pronounced by a court judgment rather than merely through a contract for which the parties seek authorisation.

Obligations on lawyers

Apart from the obligation imposed on lawyers by the original Bill to recommend consultants to the applicants for divorce to determine whether reconciliation is still possible, spouses applying for divorce will also be obliged to go through mediation as is at present done in separation proceedings.

Referendum to change the law

The essential elements of the eventual divorce law may only be changed after a referendum. The clause stipulates that changes voted upon by MPs will only become law after a referendum approves them.

Children heard

Where deemed appropriate children will have their voice heard in divorce proceedings and the concept of children’s advocate already applicable to separation proceedings will be applicable to divorce proceedings.

Committee of experts

A committee has to be set up to suggest changes to other laws as a consequence of the introduction of divorce such as pension rights. The committee will have to submit its recommendations by February 29 next year and the Prime Minister is bound to approve the necessary amendments through legal notice by June 30 of the same year. The changes will be retroactive to October 1, 2011, when the divorce law comes into force.

The long road to divorce

1975: A Labour government introduces civil marriage but not divorce. However, Maltese courts can recognise a divorce obtained abroad.

1984: The Labour Party’s women’s section approves a motion for the introduction of divorce and seeks to present it at the party’s annual general conference. It is withdrawn after pressure from the party’s leadership not to aggravate the situation with the Church that was already tense because of the Church schools dispute.

1989: The newly set up party Alternattiva Demokratika makes divorce a central plank of its political programme and includes the proposal in every electoral manifesto since.

1996: Former Labour MP Joe Brincat, who at the time was estranged from his party, presents a Private Member’s Bill for the introduction of divorce for couples who have been separated for five years. The Bill is never discussed.

1998: The Commission for the Future of the Family, set up by then Prime Minister Alfred Sant, proposes the introduction of divorce through a parliamentary free vote. No Bill is ever presented as the government faces mounting internal pressure on the matter.

2008: Labour’s newly-elected leader Joseph Muscat says he will take it upon himself to introduce a Private Member’s Bill on divorce once his party is in government and Social Policy Minister John Dalli tells The Sunday Times it is time the country starts a serious discussion on the matter.

2010: Nationalist MP Jeffrey Pullicino Orlando presents a Private Member’s Bill introducing divorce based on the Irish model. His action follows Alternattiva Demokratika’s petitioning of all MPs to debate divorce.

2011: The introduction of divorce based on the Irish model is approved by 53 per cent of the electorate in a referendum and subsequently, for the first time ever, Parliament debates and votes on a divorce Bill. In the Second Reading the Bill is approved with 44 votes in favour, 13 against and 12 abstentions.