One of the arguments often made by the pro-divorce lobby is that of the discrimination it perceives arises out of the fact that, whereas divorce may not be petitioned for in Malta, it is obtainable through forum shopping, particularly from the courts of other member states of the European Union where, those having the time and money – invariably referred to as the rich – might seek to establish themselves as habitually resident, a mere six month sojourn being allegedly sufficient to do the trick.

Such divorce, they claim, would have to be recognised in Malta pursuant to the provisions of Council Regulation (EC) No. 2201/2003 of November 27, 2003 (Brussels II).

I seek to challenge this assertion.

The regulation lays down mandatory rules, inter alia in matters relating to divorce, regulating the issue of (a) jurisdiction and (b) cross-border recognition of judgments given in member states.

Although directly applicable as law in our country, being an EU member state, the regulation does not per se extend the jurisdiction of the Maltese courts so as to render them competent to entertain civil proceedings relating to divorce in the scenarios therein contemplated. That would require an ad hoc Act of the Maltese Parliament.

Furthermore, the regulation contains an important safety valve which might well serve the purpose of empowering the Maltese civil courts, in an appropriate case, to preclude recognition from being given to a divorce pronounced even by the very courts of a member state otherwise recognised as being the forum properly seized with jurisdiction to entertain the relevant divorce proceedings pursuant to the regulation itself.

This is because article 22 of the regulation, dealing with grounds of non-recognition, very significantly provides that a judgment relating to a divorce shall not be recognised inter alia if such recognition is manifestly contrary to the public policy of the member state in which recognition is sought.

Of course, in providing for this override, article 22 is only restating the position as it obtains under recognised principles of private international law, which always bows its head to the dictates of public policy.

So the burning question would be: Is the recognition of a foreign divorce in itself contrary to the public policy of Malta? Of course, Malta cannot seek to interfere with the recognition of that divorce by other countries, certainly not in relation to a marriage which had been celebrated outside Malta, so that a divorced person who is not domiciled in Malta is perfectly capable of contracting marriage in Malta if he is capable of re-marrying according to the law of his own domicile. That is a cardinal feature of private international law enshrined in article 18 of the Marriage Act. But the question is of fundamental relevance to marriages celebrated and registered in Malta, which the state should have every interest and duty to safeguard, and to the determination of the legal capacity or otherwise of a divorced person domiciled in Malta to remarry, a matter for Maltese law alone to decide, as the lex domicilii, according to article 18 of the Marriage Act.

Many would argue that while that might have been true in the past, the matter must surely have been laid to rest with the enactment of the Marriage Act in 1975 and the provision it makes under article 33 for the recognition of foreign judgments on the status of married persons or affecting such status delivered by the competent courts of the country of which either of the spouses is a national or in which s/he is domiciled. This has administratively led the Director of Public Registry, acting under the corollary provisions of article 295 of the Civil Code, to allow for the registration of foreign divorce decrees in the Annotations Section of the Public Registry without any reservation whatsoever and totally bereft of any judicial sanction.

However, I am not so convinced myself this question has in fact been finally and definitively resolved in the ultimate forum that counts. Indeed, I am not aware the Maltese courts have ever yet had occasion to judicially pronounce themselves on the utterly crucial point as to whether the registration of a foreign divorce in the Public Registry of Malta, even within the parameters envisaged by the Act, would be manifestly contrary to public policy of Malta.

For starters nowhere is divorce, albeit admittedly a judgment affecting the status of married persons, even given a single mention anywhere in the Marriage Act. This is diametrically opposed to the position under the regulation. Sound rules of legal interpretation energetically seek to avoid the possibility of the law being made to contradict itself, in this case by somehow admitting the anathema of divorce through the back door of Maltese society when the front door is firmly locked and bolted. But, beyond that, the Maltese courts have always and quite rightly held that marital status is strictly a matter of public policy.

Indeed, marriage affects not only the parties themselves but also the whole society to which they pertain. Closely linked to this, Maltese domestic law unequivocally upholds the fundamental concept of the indissolubility of marriage, does not make provision on its own turf for divorce as a legal remedy to terminate a valid marriage and categorically states that a marriage contracted between persons either of whom is bound by a previous marriage shall be void.

For all these reasons, the discrimination weapon the pro-divorce lobby might think they have safely secured in their armoury could well turn out to be something of a rather loose cannon.

Dr Dingli is a lawyer by profession.