General provisions for a divorce
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General provisions for a divorce

The Divorce Bill will soon become law and will therefore become available in Malta. Before that, divorce in Malta was only recognised if it were obtained from abroad, such as when a foreign divorcee relocated to Malta, and that person had the divorce recognised in Malta as well.

However, after all the hot debates surrounding divorce, what will the divorce procedure really entail – is it just like getting a separation? Divorce, just as in separation, can be pronounced by a judgment of the court or by means of a public deed duly authorised by a court decree as stated in article 66A of the Maltese Divorce Bill. In fact, divorce proceedings will be built on the existing separation proceedings since article 37 of the Civil Code will apply when divorce proceedings will be instituted. That is, a demand for the determination of maintenance (if such maintenance is not already agreed upon) and of who shall keep living in the matrimonial home may be made during divorce proceedings – however, the latter might not seem that relevant, since a Maltese divorce will only be permissible after four years of separation and this will presuppose the spouses having been living separately.

But nothing can be taken for granted and it is better to include rather than exclude legal provisions. If, for example, both spouses are not currently living together and have been de facto separated for four years, and the wife or the husband wants to live in the matrimonial home pending proceedings, either of them can file an application asking the court for such. Or perhaps the husband has been living in the matrimonial home ever since the de facto separation and now the wife wants the home back to live in. Due to the fact that article 37 is applicable to divorce proceedings she can very well file an application to that effect.

Domestic violence victims are also legally provided for during divorce proceedings, just as in separation proceedings, through various legal measures among which the issuance of a protection order and/or a treatment order.

What about the grounds for divorce? Will they be the same as in separation proceedings? There are three requirements and all three need to be satisfied for a Maltese divorce to be obtained.

The first one is that in the case of a de facto separation, the spouses need to have been living apart for a continuous period of four years within the last five years before the institution of divorce proceedings. Or, in the case of legally separated spouses, that they have been legally separated for four years.

The second ground is that there is no reasonable prospect of reconciliation. This may seem redundant because one might ask, if they have been legally or de facto separated for four years, doesn’t it sound ridiculous that there might still be hope for reconciliation? Well, this may not always be the case, since there have been cases of spouses separated for long periods who have subsequently reconciled. Therefore, the requirement of having been separated for four years does not automatically mean that there is no reasonable hope for reconciliation.

The third requirement is that spousal and child maintenance needs to be safeguarded. This means that in the case of a de facto separated couple, maintenance has to be provided for, for divorce to be pronounced. What about a legally separated couple whose maintenance is already provided for? According to the Bill, the demand for divorce “shall not operate so as to vary or modify any judgment, decree or public deed of personal separation between the parties and in such cases the provisions relating to the maintenance of the spouses in the said judgment, decree or public deed of personal separation, shall be considered as providing for ‘adequate maintenance’”. Therefore, there will not be a need for the issue of maintenance to be raised once again for couples who have been legally separated. Obviously, just as in separation cases, one needs to take into consideration personal circumstances such as a change in employment of the provider of maintenance. Such circumstances would entail a revision of the amount provided in maintenance.

An interesting provision is being provided for in case of children – maintenance is to be provided not only to the children of both spouses but also to dependent members of the family. This includes children adopted by either spouse, or to whom the spouses have the responsibilities of a parent in the case where they are not the biological parents, or even, “where the other spouse, being aware that he or she is not the parent of the child, has treated the child as a member of the family”.

This is a very interesting provision because it applies not only to the spouses’ own children but is also extended to any member of the family who is treated and cared for by the spouses just like a parent treats and cares for his/her own child. It is an extremely valuable contribution towards the protection of children because it would be unfair if a spouse refused to maintain a child simply because such child is not his or her own, even though that spouse would have always contributed towards the maintenance of the child when the marriage was in place.

Maintenance has also been given an upgrade – since maintenance will be provided for until the child is 23 years of age and is still in full-time education.

Maltese divorce legislation has borrowed from the existing separation provisions but has not limited itself to just being a rehash of separation provisions. Instead it has included several new provisions intended to provide a better and more secure future than separation already provides for.

annmarie.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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