Late divorce evidence proves unconvincing

The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, on February 7 , 2012, in the case “A and B” vs the Director of Public Registry” held, among other things, that as a rule the Court of Appeal should not accept a party to produce documents for the first time on appeal.

The parties (Maltese nationals) married in Malta on September 20, 1986 and had one daughter. In 1996 they took up residence in Dubai, United Arab Emirates. They lived and worked in Dubai for over 12 years. Subsequently on April 11, 2008, they signed a contract of divorce, which was approved by the Court of Dubai on June 22, 2008; from which, there was no appeal. The Dubai Court confirmed that the parties were irrevocably divorced. Its decision was definitive.

The court expressed its doubts on the statement made by the Dubai Courts on the domicile of the parties; in particular since it gave no reason how it reached this conclusion

On July 28, 2008 the parties applied to register their divorce at the Public Registry in Malta. The Director of Public Registry however, refused to recognise their divorce unless a decision was also given by the Maltese Courts of Justice.

Faced with this situation, the parties filed legal action in Malta against the Director of Public Registry requesting the court to order the Public Registry to recognise their divorce.

The parties claimed that at the time of their divorce, they were domiciled in Dubai. They said that they had changed their domicile of origin (Malta), when they left Malta in 1996; as they had no intention of returning.

They produced a certificate dated October 6, 2010 issued by the Ministry of Interior (Dubai) declaring that they were domiciled in the UAE and a letter dated September 27, 2008 from a competent authority in Dubai that they qualified to obtain a divorce according to the law of Dubai. Their daughter was educated from primary to tertiary level in Dubai. It was not the case that they re-located to Dubai with the aim of obtaining a divorce.

It was alleged that they had not sold their Malta property as they planned to bequeath it eventually to their daughter, who took up residence in Malta. They said that they did not sell their grave for sentimental reasons.

They retained their Maltese Identity Cards, in order to be in a position to keep their Maltese passports.

“A” also maintained that his Malta company ceased to trade and that in 2001 it was de-registered for VAT. “A” said that he kept on paying the Malta social security contributions, not to lose the benefit of social security in Malta, after having paid substantial amounts; and especially when no similar national insurance existed in Dubai.

In reply the Director of Public Registry contested their requests. It was stated that the decision of the Dubai Courts did not satisfy the requisites of article 33 of the Marriage Act; as the parties were not domiciled in Dubai.

He said that the parties had not changed their domicile of origin (Malta). Moving to live and work in Dubai did not mean that the parties wished to abandon their domicile of origin.

The director argued that on the contrary the parties never intended severing their ties in Malta. This was evident from the following facts:

They had not disposed of their immovable property in Malta.

“A” continued to pay his social security contributions in Malta.

The parties retained their Maltese Identity Cards, and passports and were registered in the electoral register, until they were struck off the register at their request during these proceedings.

“A” continued to operate a company in Malta; earned income and paid tax in Malta.

On public documents even up to 2008, they declared to be living in Malta.

On March 30, 2011 the Court of First Instance dismissed their requests. It was not convinced that when the parties departed from Malta, they intended to abandon their domicile of origin (Malta). As they were still domiciled in Malta, their foreign divorce could not be recognised in Malta on the basis of Article 33 of the Marriage Act.

The court considered that to acquire a domicile of choice, two elements were needed: (i) residence in such place and (ii) the intention to reside in such place permanently or indefinitely. The burden of proof rested with the person claiming to have changed his domicile. The change of domicile of origin had to be proven to a higher degree than a change of domicile of choice.

According to case-law, it was not enough for a person to travel overseas, even accompanied by his family to change his domicile. Residing in another country for a number of years for business or work did not automatically bring about a change of domicile. It had to be clearly shown that a person had no intention of returning.

It noted that the certificate issued by the Dubai Authorities confirming the domicile of the parties was probably based upon information, which they themselves provided without any assessment on where they were in fact domiciled.

Aggrieved by the decision of the First Court, the parties entered an appeal, calling for its revocation. They annexed to their application, a letter dated April 12, 2011 from the Malta Consul in Dubai, where it was stated among other things that:

1. “No foreign national and referring to the parties can obtain a UAE passport, but they must hold a Malta passport.

2. No foreign national … can obtain citizenship of Dubai – United Arab Emirates.

3. In Dubai – United Arab Emirates – there is no Social Security System or National Insurance Contribution for local or foreign nationals.

4. In Dubai – United Arab Emirates, there is no national Pension Scheme for Foreign Nationals.

5. In Dubai – United Arab Emirates – foreign nationals residing in Dubai must obtain a United Arab Emirates – Identity Card, however they have no right to vote in Dubai”.

On May 25 2011, the parties filed a note in court, and attached a true copy of the original certificate and legal translation, with a declaration of the competent court in Dubai, duly attested; whereby it clearly resulted that the parties were domiciled in Dubai; UAE at the time of the divorce proceedings.

At issue before the Appellate Court was whether an applicant could produce documents for the first time on appeal.

The Director of Public Registry objected to the production of these new documents. This court now had to deliver an in parte decision to decide whether it was acceptable to consider these documents on appeal.

On February 7, 2012, the Court of Appeal refused to consider these documents as evidence in these proceedings. It found no good reason why these documents were not produced before the Court of First Instance. The parties were well aware that they had to prove that they were domiciled in Dubai at the time of their divorce.

It accordingly ordered that the documents should be removed from the court file.

The following reasons were given for the court’s decision.

The court considered Articles 145 and 150 Chapter 12 of the Laws of Malta and caselaw.

In J. Farrugia vs C. Carabott dated June 24, 2011 it was held that this article appeared to give a party the right to support his claims with any document, without restriction. However, the Appellate Court as a rule should not consider evidence unless this was shown before the Court of First Instance; otherwise the other party would be denied the right of doppio esame. The court admitted that exceptions were possible in certain limited cases.

In this case, however, there was no good reason why the letter from the Malta Consul was not produced before the First Court.

In F. Attard vs Malta International Airport plc dated November 14, 2011, it was held that Article 150 did not oblige the court to accept every request for the production of documents.

The court may accept only if there existed one of the elements listed in the law. The court, as a rule, should not accept documents which were not produced before the Court of First Instance. In addition, the court had to be convinced of the relevance of such documents.

The court expressed its doubts on the statement made by the Dubai Courts on the domicile of the parties; in particular since it gave no reasons how it reached this conclusion.

Dr Grech Orr is a partner at Ganado & Associates.