MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
1. Divorce 1.1 Grounds, Timeline, Service and Process The concept of divorce was alien to Maltese law until 2011, when a referendum was called to determine its introduction. Despite the option of divorce being avail ‑ able for more than a decade now, it is customary in Malta to initially file for separation instead of divorce in the event of a matrimonial breakdown. Typically, once a separation is concluded, the parties involved may proceed to apply for a divorce order. Personal Separation Under Maltese Law When spouses seek separation in Malta, they are called for a mediation and reconciliation attempt. The mediator evaluates the possibility of reconciliation and submits a report to the Family Court. If reconciliation proves unattainable, personal separation may not take place except: • on the demand of one spouse against the other, by filing an application before the Family Court; or • by mutual consent of the parties, whereby a contract is signed before a notary public and then enrolled in the Public Registry of Malta. In terms of the Maltese Civil Code, the grounds for a demand of separation are: • adultery; • desertion for two years or more; • excesses; • cruelty, threats or grievous injury against the other spouse and/or their children; and • irremediable breakdown of the marriage where the couple has been married for at least four years – although it must be stated that the approach towards the last criterion is relatively liberal. If a spouse is found responsible for adultery or deser ‑ tion, they may forfeit certain entitlements, such as maintenance, inheritance rights and even their share of specific assets acquired through the efforts of the other spouse. Upon the conclusion of separation proceedings, the legal obligations between the spouses cease. The
Community of Acquests regime, if applicable, ceases to apply and common property is liquidated. Divorce Separation does not terminate the matrimonial bond; hence, once collateral matters and a separation are concluded, it is advisable for the parties to demand a divorce order. The Family Court will issue a divorce order if the following conditions are satisfied: • when a request is made by the spouses jointly, the couple must have lived separately for a minimum of six months during the preceding year or, when the demand is made by one of the spouses against the other spouse, the spouses must have lived apart for a period of – or periods amounting to – at least one year in the preceding two years; • reconciliation is deemed impossible; • at least one of the two spouses must have had residency in Malta when submitting the divorce application; and • the spouses and all of their children receive ade ‑ quate maintenance (where this is due in terms of separation), according to their particular circum ‑ stances – either spouse may renounce their right to maintenance at any time. Where an applicant wishes to proceed with divorce rather than first concluding a separation, the law plac ‑ es an obligation on the advocate of said applicant to: • discuss the possibility of reconciliation; • provide the applicant with contact details of quali ‑ fied professionals to help in the process of recon ‑ ciliation; and • ensure that the applicant is aware of the option of personal separation as an alternative to divorce. The same applies to the respondent’s legal counsel. In fact, the law further provides that – together with the divorce application – the advocate must file a declara ‑ tion stating that this obligation has been fulfilled when the spouses are not legally separated. As most marriages in Malta are celebrated in accord ‑ ance with Catholic rites, it is pertinent to note that the effects of a divorce order are limited to the civil sphere. Unless such marriage is annulled by the competent
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