DIVORCE IN MALTA – PISCOPO LEGAL – DIVORCE LAWYERS IN MALTA

We have the necessary expertise to initiate divorce proceedings and in guiding the spouses from beginning to end. We work towards safeguarding the rights and obligations of the parties. We also provide services for the registration of foreign marriages and divorces.

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Qawra:
Legal Office, Kennedy Grove Apartments, Triq il-Wileg, Qawra – Map and directions here
Email: dr.robertpiscopo@gmail.com
Phone: +356 79858507

Valletta:
22, Vincenti Buildings, Door 26, Strait Street, Valletta, Malta – Map and directions here
Email: dr.robertpiscopo@gmail.com
Phone: +356 79858507

On the 28th May 2011, the Maltese divorce was amenable to a referendum and 53% of voters were in favour while there were eleven who voted against and five abstentions. Then, on the 25th of July, the Parliament of Malta voted to legalize divorce and it came into force on the 1st October 2011. It is now regulated by the Maltese civil code.

Divorce is the complete and total dissolution of a marriage that pre-existed between the spouses. Therefore once it is granted, the couple is no longer deemed to be married in the eyes of the law and thus the ex-spouses are able to remarry. Consequently, they are no longer bound by the obligation of fidelity and cohabitation.

Contrary to divorce, separation is the physical separation of the spouses without dissolving the union of matrimony. The spouses will also split their assets and decide on their matrimonial home. Other issues concerning the children of the marriage like custody and access rights are agreed upon. However in the eyes of the law, the couple is still considered to be married and thus cannot seek to remarry once they are only separated. On the other hand, annulment states that the marriage never existed due to a vice when the couple got married to each other. Once it is granted, the couple is free to remarry once again since in the eyes of the law they are deemed to never have wed.

The necessary conditions to get divorced are enumerated at the article 66B of the Maltese Civil Code. “Divorce shall not be granted except upon a demand made jointly by the two spouses or by one of them against the other spouse, and unless the Court is satisfied that:

• On the date of commencement of the divorce proceedings, the spouses shall have lived apart for a period of, or periods that amount to, at least four years out of the immediately preceding five years, or at least four years have lapsed from the date of the legal separation; and
• There is no reasonable prospect of reconciliation between the spouses; and
• The spouses and all of their children are receiving adequate maintenance, where this is due, according to their particular circumstances […]. Provided that the spouses may, at any time, renounce their right to maintenance.”
• On the other hand, it is necessary that “at least one of the two spouses was domiciled in Malta on the date of the filing of the demand for divorce before the competent civil court […]”, or that “at least one of the spouses was ordinarily resident in Malta for a period of one year immediately preceding the filing of the demand for divorce.” (Article 66N of the Civil Code).

“After the Court considers the requirements of article 66B to have been satisfied, the Court shall hear and decide on the demands made by the parties […] and it shall proceed to pronounce the divorce of the parties.” (Article 66C of the Civil Code)

The process to get divorced in Malta and the way things will proceed differs depending on whether the couple is legally separated or not or whether separation proceedings are already underway. However, in every case, “Where an application for divorce is made by one of the spouses, it shall not be necessary for the spouse making the demand to impute to the other party any fault leading to the making of such demand” (Article 66D of the Civil Code).

We also deal with marital separation

• When the couple is already legally separated

  …by means of a contract or a court judgement, the spouse making the demand for divorce may only demand the dissolution of the marriage accompanied by a legal copy of the judgement of separation or of the contract of consensual separation as an evidence (Article 66G of the Civil Code). The respondent of the application may contest the application on the grounds that either the required term stated in the law has not lapsed or that the applicant fails to pay the due maintenance. The article 66B of the Civil Code states that “a divorce pronounced between spouses who were separated by a contract or by a judgement shall not bring about any change in what was ordered or agreed to between them, except for the effects of divorce resulting from the law”.

• When the couple is not legally separated

  …before the Court proceeds with the granting of divorce, it will direct the couple to appear before a mediator as to attempt a reconciliation and when such is not achieved, to enable the parties to conclude the divorce on the basis of an agreement. The mediator is appointed either with the mutual consent of the parties or by the Court itself (Article 66I of the Civil Code) and “the Minister may make regulations establishing a register of persons qualified to assist the parties involved in the process of reconciliation” (Article 66J of the Civil Code).

  If there isn’t any reconciliation, the applicant who makes the demand for divorce may bring forth other demands which would otherwise be permissible in a cause for separation. The respondent may contest the application on the same grounds as when the couple is already legally separated and can also put forward other defences which the respondent would have been entitled to make in a cause for separation. During the proceedings the Court may issue orders related to who shall reside in the matrimonial home during the proceedings and also on maintenance as to ensure that during the pendency of the proceedings the spouses and children are accommodated to (Article 66D of the Civil Code).

• When there are pending separation proceedings between the spouses

  …at any time, the couple may make recourse to the Court, either separately or jointly, so that the demand for separation is instead considered as a demand for a pronouncement of divorce. After making such claim, the Court will consider whether the couple satisfies the required conditions stipulated in the article 66B of the Civil Code for applying for divorce and it will amongst other things verify that the couple has been in fact living apart for the required number of years. The Court will then decide whether to accept the demand for divorce through a judgement given in open court (Article 66F of the Civil Code). Once the Court accepts the application to have separation proceedings converted into divorce proceedings, all witnesses and documents presented with the cause for separation will automatically become applicable to the cause for divorce. The spouses still retain the right to present further evidence in the divorce proceedings relating to the said cause. In the case where neither party makes recourse to the Court to demand a conversion of separation proceedings into divorce proceedings and the spouses or one of them makes a demand for divorce, the Court will automatically hear and decide together both causes and link them together without the need of a demand by the parties or one of them. It is in the discretion of the Court whether to summon the parties in front of a Mediator depending at which stage the separation proceedings were at before being converted into divorce proceedings.

The article 66I of the Civil Code states that the spouses have to reach to an agreement on some or all or of the following terms:

• The care and the custody of the children
• The access of the two parties to the children
• The maintenance of the spouses or of one of them and of each child
• The residence in the matrimonial home
• The division of the community of acquests or the community of residue under separate administration.

The Court may, when it considers it necessary to do so, either on its own initiative or upon the request of the mediator or of one of the spouses, appoint a children’s advocate to represent the interests of the minor children of the parties, or of any of them, and hear the minor children of the parties, or any of them, , when it considers it to be in their best interest to do so”Article 66I (2) of the Civil Code (concerning children)

Divorce leads to many effects enumerated at the article 66L of the Civil Code.

First, when the competent Civil Court pronounces a divorce between the spouses, they shall have the right to remarry.

The obligation of cohabitation of the parties shall, for all civil effects, cease.

Concerning the wife’s surname, either one of the spouses may apply to the court to have the wife’s maiden surname re-instated. Therefore, the wife may lodge an application as to ask the Court to revert back to her maiden surname whilst the husband can apply to the Court as to forbid his wife from using his surname if he proves to the Court that such causes him prejudice (Article 62 of the Civil Code).

The rights of the spouses to the succession of each other shall cease with effect from the day when the decree or judgement of divorce is pronounced.

Nevertheless, the pronouncement of divorce shall have no effect upon the rights and obligations of the parties as parents in respect of their children or upon any agreement reached between the parties in respect of the custody of their children. And divorce shall have no effect upon the rights of third parties arising out of any agreement or obligation already concluded, or still to be concluded, by the divorced parties.