MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
parent but also on what decisions will be in the child’s best interests. Any arrangement by parents concerning a child requires the approval of the Family Court. Thus, for instance, the court will not ordinarily favourably con ‑ sider a living arrangement that does not provide for a certain degree of stability and routine for the child. Children’s matters in Malta are typically grouped under three categories, as follows. Care and Custody Normally, the parents agree that care and custody are to be shared, subject to an express agreement as to the residence of the child. In contentious situations, the court will only deprive a parent of care and custo ‑ dy if there are circumstances that warrant such action. Where adverse indications arise, social workers will be asked to intervene and carry out their assessments. In the unlikely event that care and custody are vested in one parent to the exclusion of the other, certain matters will still require the consent of the other par ‑ ent. These include matters relating to access or the removal of the child to another country. Visitation Rights Visitation rights are afforded in a way that tries to eliminate disruptions to the child’s schedule. Non- observation of visitation rights undoubtedly results in hardship on the other parent at the expense of the child; in view of this, action may be taken if a court- sanctioned schedule is not followed. Child Support and Maintenance Generally speaking, and in accordance with Article 157 of the Maltese Civil Code, parents are obliged to maintain their children until the age of majority (ie, when the child reaches the age of 18). Mainte ‑ nance encompasses necessities such as food, cloth ‑ ing, health, habitation and child-related expenses for health and education. The amount of maintenance payable to the primary caregiver is determined based on the claimant’s needs and the financial capacity of the person responsible for providing maintenance. When evaluating a claimant’s ability to contribute to maintenance, consideration is given to their income.
Assets owned by the claimant, both movable and immovable, are also taken into account. In 2011, amendments to the Maltese Civil Code estab ‑ lished that parents are obliged to continue offering sufficient maintenance for their children (depending on their means) until the children reach the age of 23 if the children are in full-time education or training. Likewise, maintenance obligations do not cease if a child has a mental or physical disability recognised at law. Court orders in relation to child maintenance Maintenance orders are enforceable by law, and fail ‑ ure to pay maintenance is considered a breach that affects public order. Specifically, Article 338 (z) of the Maltese Criminal Code stipulates that anyone who fails to pay maintenance as ordered by a court or as agreed in a contract, within 15 days following the due date, will be guilty of a contravention against public order. In cases of repeated offences, the person will be liable for a punishment of detention not exceeding three months or imprisonment for a term not exceed ‑ ing two months. In instances where the individual responsible for pay ‑ ing maintenance encounters legitimate difficulties that prevent them from fulfilling their obligations, ceasing payments unilaterally is not permitted. To avoid penal ‑ ties under Article 338 (z) of the Maltese Criminal Code, the individual must apply to court to either reduce the payment amount or be relieved of the obligation entirely. Can children apply for financial provisions themselves? Under Maltese law, a “child” is defined as an individual who has not yet reached the age of 18. Minors are subject to parental authority, with parents represent ‑ ing their children in all civil matters. However, parental authority may cease under certain circumstances – for example, when the child marries, when the child is emancipated to engage in trade, or when a parent consents to the child being allowed to sue or be sued. While parents generally represent their minor children in civil proceedings, situations may arise where a con ‑ flict of interest exists due to personal stakes of the parents. In such cases, the court may appoint a cura ‑
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