MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
church tribunal, a divorcee cannot contract a subse ‑ quent church marriage. Annulment Prior to the introduction of divorce, the only possibility for remarriage was for the parties to seek a declaration of nullity with regard to their failed marriage. Such a declaration implies that the marriage was null ab initio and therefore non-existent. The jurisdiction over civil annulments is governed by the Marriage Act (Chapter 255 of the Laws of Malta), and an annulment petition is only allowed if at least one of the conditions specified in Article 19 of the Marriage Act is satisfied. An action for annulment of a marriage may only be brought before the Family Court by one of the parties to the marriage. Under Maltese law, a marriage may be declared null where: • there is an error as to the identity of one of the par ‑ ties; • there is a defect of consent resulting from coercion, violence or grave fear; • there is a lack of sufficient intellectual capacity or use of reason at the time of marriage; • there is psychological incapacity to assume the essential obligations of marriage; • there is antecedent and perpetual impotence; • there is the exclusion or simulation of marriage or any of its essential elements; or • consent to marriage was made subject to a condi ‑ tion. The grounds for a Catholic Church (canonical) annul ‑ ment are governed by the Code of Canon Law. In terms of a treaty between Malta and the Holy See, once a competent church tribunal grants an annulment, either party may demand that the court of appeal order the registration of such decision in the Public Registry of Malta. In such cases, the court of appeal verifies and confirms that the church tribunal followed the correct procedure in granting the annulment. Same-Sex Marriages in Malta Following amendments to the Maltese Civil Code introduced in 2017, same-sex couples have been
placed at par with heterosexual couples. In case of marital issues and breakdown, the ordinary separation and/or divorce procedures are to be followed. Timeframe and Service There is no set timeframe within which proceedings must be appointed for trial before the Maltese courts. Once an action is brought before the Family Court, a first hearing is typically scheduled within a few weeks. Service of the personal separation or divorce applica ‑ tion (where this is done by one spouse and is not joint) is effected at the defendant’s residence or place of work. The procedure to be followed for valid service of any judicial act is set out in the Code of Procedure and must be adhered to meticulously. Once served, the defendant would have several days to reply to the plaintiff’s pleas, after which the case would be appointed for hearing before the Family Court. No timeframe is imposed on the judiciary to deliver a decision. This will depend on several factors – mainly, the complexity of the case and the evidence brought by the parties. 1.2 Choice of Jurisdiction in Divorce Proceedings As in all civil proceedings, domestic rules on jurisdic ‑ tion are applied by Maltese courts, and also apply in matrimonial cases. In terms of the Code of Organi ‑ sation and Civil Procedure, the civil courts of Malta have jurisdiction to determine all actions concerning the following persons: • citizens of Malta, provided they have not fixed their domicile elsewhere; • any person as long as they are domiciled, resident or present in Malta; • any person, in matters relating to property situated or existing in Malta; • any person who has contracted any obligation in Malta, but only with regard to actions stemming from such obligation and provided such person is present in Malta; • any person who, having contracted an obligation in some other country, has nevertheless agreed to carry out such obligation in Malta, or who has con ‑ tracted any obligation that must necessarily be put
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