MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
2.7 Enforcement of Financial Orders The Maltese courts issue executive acts to enforce court judgments and orders. These executive acts may take the form of either: • warrants to seize property (movable and immov ‑ able); or • garnishee orders intended to attach the funds of the debtor to third parties (usually banks). Failure to pay maintenance when due constitutes an offence that is punishable by detention. 2.8 Media Access and Transparency in Financial Proceedings Proceedings before the Maltese courts are public, and all documents and records of the proceedings are accessible to the public. There are restrictions in the Family Court, although there is no blanket restriction on the media covering proceedings. Specific orders are made when necessary to protect individuals who require protection in the context of ongoing proceed ‑ ings. Keywords do not feature as a headline in the case law. However, the legal case management system used by the Courts of Justice in Malta offers a function whereby certain judgments deemed to be of interest to the public are indexed – ie, a set of keywords would be grouped together with a summary of the judgment linked to the record. Since 2000, all case law is fully published in Malta via the portal of the Court Services Agency. Judgments delivered by the Family Court are anonymised. Over time, the Court Services Agency receives requests from individuals whose names appeared in judgments for their records to be removed from the public online database. The “right to be forgotten” pursuant to the EU’s General Data Protection Regulation applies to such cases. 2.9 ADR in Financial Matters ADR methods in Malta cannot simply be considered in a vacuum. This is mainly because they are viewed as methods to address general civil claims, rather than being specifically established to address family law
matters or as an alternative means of resolving finan ‑ cial disputes. Even though court litigation is still one of the strongest forms of dispute settlement in civil matters in Malta, alternative methods do exist, with arbitration and mediation becoming more popular in recent years. In 2004, mandatory mediation was introduced in most family cases and is used as a method to help par ‑ ties reach an amicable settlement rather than going through costly and lengthy judicial proceedings. In terms of the 1996 Arbitration Act, disputes concern ‑ ing questions of personal civil status (including those relating to personal separation, divorce or annulment of marriage) are not capable of settlement by arbi ‑ tration. An exception was introduced in 1999 so that questions relating to the division of property between spouses may be referred to arbitration, subject to the competent court’s approval of the arbitration agree ‑ ment and of the arbitrator to be appointed. Unfortu ‑ nately, this procedure is seldom utilised. The jurisdictional grounds outlined in 1.2 Choice of Jurisdiction in Divorce Proceedings are generally applicable to child proceedings, given that Maltese procedural law does not differentiate between classes of claims within the context of marital breakdown. The jurisdiction of the Maltese courts is subject to the provisions of Regulation (EC) 2201/2003 concern ‑ ing jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (the “Brussels II bis Regula ‑ tion”). A Maltese court will only have jurisdiction over divorce proceedings pursuant to the Brussels II bis Regulation. 3.2 Living/Contact Arrangements and Child Maintenance Maltese legislation and case law give utmost impor ‑ tance to the best interests of the child. Care and cus ‑ tody of a child is not based simply on who is the better 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings
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