MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
order a sale through a court auction, it is reasonable to expect the parties to sell their assets through real ‑ tors. In the few cases where a court auction is the only option, the price realised is usually below the market value. Maltese procedural law does not contain specific rules on disclosure. It is up to the parties to bring forward evidence to prove the extent of the common assets and, where relevant, of the individual assets of the other spouse. Given that many separations are con ‑ cluded amicably, the parties must rely on the good faith of the other spouse. In contentious proceedings, the parties summon entities such as banks, public authorities and employers to tender evidence of the holdings and earnings of the other party. This sys ‑ tem is not ideal as it does not allow for complete and proper disclosure. 2.4 Spousal Maintenance In Malta, maintenance for children is the rule not an exception. However, this is not the case for spouses in Malta who are parting ways. The circumstances of each case have a bearing on whether a spouse’s request for spousal maintenance is upheld. The Civil Code establishes a number of generic rules on maintenance – namely, that: • the spouse has a prior right over the parents or other ascendants to maintenance – where both the spouse and children claim maintenance, they will be in a position of equality; • no spouse may claim maintenance from the chil ‑ dren or other descendants, nor from the ascend ‑ ants if such maintenance can be obtained from the other spouse; and • the duty of one spouse to maintain the other will cease if the latter, having left the matrimonial home, refuses – without reasonable cause – to return thereto. While common assets are divided equally between the spouses, the party responsible for the break-up may be ordered to pay maintenance to the other spouse. In determining maintenance, the court con ‑ siders the working capacity of the spouses, especially in instances where the party claiming maintenance is
deemed employable. In amicable separations, spous ‑ al maintenance is ordinarily waived. Recent amendments to the laws on the matter under ‑ score the importance of considering means, work capabilities, needs and various circumstances when determining maintenance. The law also takes into consideration circumstances that impact the spouses’ ability to support themselves and their children. An interesting provision in the law relates to employa ‑ bility. The fact that the person to whom maintenance is due – in most instances, the wife – has had her chanc ‑ es of employability diminished because she has been out of the workforce for many years to take care of the children, the household and the husband will be taken into consideration when calculating maintenance. This clause intends to protect the stay-at-home wife or the wife who has had to abandon her career to take care of the family. A middle-aged woman who has been out of the workforce for more than a decade or two has limited chances of finding employment, if any at all. These legal provisions also consider every other income or benefit the spouses may receive, other than social security contributions. The accommoda ‑ tion requirements of the spouse and of the children, and the amount that would have been due to each of the parties (eg, a benefit under the pension scheme) that is being forfeited due to separation, are taken into consideration. In Maltese divorce law, there is also a provision that aims to protect the right to maintenance in the form of a monetary guarantee. In fact, the law states that maintenance can be safeguarded by means of a guar ‑ antee in the form of a sum not exceeding the amount of maintenance for five years. The court will only order such a guarantee if it is shown that the person provid ‑ ing maintenance has, for example, consistently failed to pay maintenance, to the detriment of the children or spouse. If a divorcee receiving maintenance remarries or enters into a “personal relationship” (presumably also including cohabitation), they will forfeit their enti ‑ tlement to maintenance. This provision is also appli ‑ cable in separation proceedings.
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