Almost a year after the enactment of the divorce law, a legal notice has recently been published implementing the necessary changes to a number of laws to bring them in line with this legal reality. These amendments are deemed to have come into effect on October 1, 2011.

Many of the amendments are merely cosmetic, extending to divorce the applicability of certain provisions that previously applied to personal separation or nullity of marriage. Apart from these obvious amendments, there have been a number of others that are of note.

The right of habitation granted to a spouse to continue to reside in the matrimonial home after the demise of his/her consort can now be availed of, even if s/he is divorced. This right was previously also extended to the surviving spouse even when s/he was legally separated and continued to reside in the matrimonial home, either in terms of a court judgement or in terms of a deed of consensual separation. This right of the surviving spouse has now also been extended to a former spouse who, though divorced, is entitled to continue to reside in the matrimonial home at the time of the demise of his/her former consort.

The tax exemptions granted on assignment of immovable property between spouses on separation have also been extended when such property is assigned to spouses on divorce.

By far the most important amendment is the grant of a widow’s pension to those divorcees who survive their former spouses. This measure will hopefully redress a potential injustice where spouses would not qualify for a pension based on their own contributions. Such spouses, mainly women, would not have worked gainfully at all or would not have worked the required number of years in order to be eligible for a pension on the strength of their own contributions.

Therefore, for the purposes of the Social Security Act, a predeceased person may be survived by more than one widow, with each of them possibly being entitled to a widow’s pension based on the predeceased’s contributions. Indeed, even if only by way of a legal fiction, the law distinguishes between the term “widow” and “actual widow”, with each “widow” being entitled to a pro rata share of the widow’s pension based on the actual period of marriage.

Although the law refers to a widow, it is also intended to refer to a widower.

From a reading of the amendments, the department would first calculate the quantum of the widow’s pension based on the predeceased spouse’s contributions. The “divorced widow” (a contradiction in terms, if ever there was one but helpful in order to explain her entitlement) would receive a portion of that pension based on the period of marriage as a proportion of the total period of contribution years on which the retirement pension of the predeceased spouse or former spouse is calculated.

The “actual widow” would then receive the remaining portion of the pension after deducting the portion due to the “divorced widow” but only if s/he was entitled to be maintained by the deceased spouse at the time of his demise. On the other hand, the divorced widow would be entitled to receive a widow’s pension irrespective of her right to be maintained. It is not clear from a reading of the law why the right of the “actual widow” has been qualified in this way.

Similarly, it is also possible for a person to survive both a predeceased spouse and an ex-spouse and, therefore, be entitled to more than one widow’s pension. However, it is expressly provided that the payment cannot exceed the maximum pension payable to a widow.

Other amendments to the Social Security Act are intended to restrict certain benefits to widows or widowers who were married to their spouse when s/he passed away (referred to in this Act as “actual widows”).

Thus, actual widows may opt for a retirement pension rather than a widow’s pension and, in so doing, may benefit from their spouse’s contributions.

Similarly, if a person having a pending claim before the Department of Social Security passes away, the right of appeal thereafter pertains to his/her heirs and “actual widow”. Such rights have not been extended to “divorced widows”.

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Dr Sciberras Camilleri is partner at Francis Zammit Dimech Advocates.