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Last update: 03-08-2006
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Divorce - Malta

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TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce? 1.
2. What are the grounds for divorce? 2.
3. What are the consequences of a divorce? 3.
4. What does the legal term “legal separation” mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? 6.
7. What does the term “marriage annulment” mean in practice? 7.
8. What are the conditions for marriage annulment? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court? 10.
11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment? 13.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State country recognised in Malta? 14.
15. To which court should I turn in Malta to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases? 15.
16. Which is the applicable law in a divorce proceeding between spouses who do not live in Malta or who are of different nationalities? 16.

 

1. What are the conditions for obtaining a divorce?

2. What are the grounds for divorce?

3. What are the consequences of a divorce?

In Malta divorce is not part of our legal system. However, by virtue of Article 33 of the Marriage Act (Chap. 255 – Laws of Malta) an interested party may register a foreign divorce at the Annotations Section of the Public Registry, provided that the decision was delivered by the competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen. When such a divorce is registered, the parties are free to remarry.

4. What does the legal term “legal separation” mean in practical terms?

In practical terms, by legal separation, the spouses although remaining married, their obligation to cohabit seizes. Spouses who intend to separate legally have two options: they may opt for a consensual separation (by agreement of both parties with the approval of the family Court) or for a contentious separation (where the separation is contested between the parties and the Court decides on all issues involved and in particular with regard to the responsibility for the breakdown of the marriage).

5. What are the conditions for legal separation?

Personal separation may not take place except on the demand of one spouse against the other and on any of the grounds specified in the law (Articles 35-66 of the Civil Code – Chap 16, Laws of Malta), or by mutual consent of the spouses as specified in Article 59 of the Civil Code.

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Before a couple decide to separate, they must go through the process of mediaton which is offered by the State free of charge unless the couple opts to go to private mediators. The applicant or his legal representaive initiates separation proceedings by writing a letter to the Registrar of the Civil Courts, Family Section informing him about the personal details of the couple (Name/Surname/Addresses etc), requesting that separation proceedings are initiated and that the couple are sent for to attend the mediation process.

Once the mediator is appointed, the date of the mediation sessions are fixed, and the couple may attend the sessions on their own or accompanied by a legal representative. The mediator’s role is to attempt to reconile the parties. If this proves futile, the mediator encourages the couple to settle for a consensual separation. In the event that even this is unsuccessful, then the mediator requests the court to authorize that mediation comes to an end.

  1. Consensual separation (by agreement of the parties)

    The parties file a joint note in front of the Civil Court, Family Section signed by the legal representatives of both parties and the notary will eventually publish the public deed, accompanied by a copy of the draft contract. Mediation should be initiated and terminated within a period of one month. The mediator explains to the couple that a public deed (which expresses their wishes) will be drawn up and published by a notary public. Then the mediator draws up a report and once the judge grants the decree, only the notary can withraw the contract from the Family Court in order to have it published.

  2. Contentious proceedings (if no agreement is reached amongst the parties)

    If the mediator is of the opinion that reconciliation or reaching an agreement is impossible, the mediator suggests that the mediation phase is terminated, informing the judge accordingly. Once the judge authorizes the termination of mediation by means of a decree, either one of the couple has a time limit of 2 months within which he/she may file by a writ of summons demanding separation and regulation of the other related issues such as access to the matrimonial home, maintenance claims, claims/care and custody of the children, separation of estate and assets, etc.

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The grounds for separation are spelt out in the Civil Code (Chap. 16 – laws of Malta) and are the following:

  • Adultery on the part of the other spouse;
  • Excesses, cruelty, threats or grievous injury on the part of the other spouse or against any of his/her children; or
  • The spouses cannot reasonably be expected to live together as the marriage has irretrievably broken down provided that 4 years have expired from the date of marriage and/or; If for two years or more one of the spouses shall have deserted the other without good grounds.

The spouse who is not at fault retains every right and benefit which he/she acquires from the other spouse. On the other hand, the spouse against whom the separation is pronounced, shall not be relieved from the obligation of supplying maintenance to the other spouse where according to the court decree or judgement maintenance is due. The amount of maintenance due is determined according to the means of the spouse ordered to supply maintenance, the needs of the spouse requesting it and all other circumstances of the spouses (such as the possibility of the person to whom maintenance is due of receiving training or retraining in a profession, art, trade or other activity or to nitiate or continue an activity which generates an income). The court if it deems fit in the circumstances of the case, may order the spouse who is duty bound to maintain the other spouse, to pay to the latter, a lump sum which may be paid in equal or unequal instalments spread over a reasonable period of time or even assign to the other spouse property in ownership or in usufruct, use or habitation in order to make the weaker spouse financially independent or less depenent on the other spouse.

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If there is a supervening change in the means of the spouse who is ordered to supply maintenance or the needs of the other spouse, the court may, on demand of either spouse, order that such maintenance be varied or terminated. If a lump sum or an assignment of property has been paid or transferred in total satsfaction of the obligation of a spouse to supply maintenance to the other spouse, the responsibility of the former to supply maintenance to the latter ceases.

The Civil Court, Family Section decides on the merits of the case and either one of the couple has the right to file an appeal in front of the Court of Appeal within 20 days from the day that the judgement was delivered.

The action for separation is extinguished by the reconciliation of the spouses. Notwithstanding, if a fresh ground for separation arises, the applicant spouse may also allege the previous grounds in support of his demand.

The death of either one of the spouses extinguishes the action for separation, except in the cases specified by the law in which the judgement of separation may produce the effect that the guilty party is penalized.

6. What are the legal consequences of legal separation?

Once the legal separation is published (consensual - public deed) or pronounced (contentious- by a court judgement) then the couple do not have to co-habit any longer, however, the obligation of fidelity and support subsists. This is without prejudice to the right to maintenance, care and custody rights of children etc whereby reference has to be made to the public deed or the court judgement, whichever option the couple would have chosen to separate from each other.

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7. What does the term “marriage annulment” mean in practice?

Once a marriage annulment is prounced by the court, this means that the marriage never existed from the beginning, saving the legitimation of any childred born in marriage.

8. What are the conditions for marriage annulment?

A marriage may be annulled in the following cases as specified in the Marriage Act (Chap. 255 – laws of Malta):

  • Marriage contracted by parties under the age of 16;
  • if the parties who are subject to paternal authority or to tutorship do not have the consent of the person exercising such authority or of the tutor, as the case may be, and do not have the authorization of the court of volontary jurisdiction;
  • if either of the parties are infirm of mind, whether interdicted or not;
  • if the parties are related within the forbidden degrees;
  • the formalities which should precede and concerning the marriage specified in the Marriage Act have not been completed or adhered to;
  • if at the time of the marriage one of the parties was already bound by a previous marriage;
  • the parties are not of different sexes;
  • if the marriage was not consummated;
  • if the consent of either of the parties is extorted by violence, physical or moral, or fear;
  • if the consent of either of the parties is excluded by error on the identity of the other party;
  • if the consent of either of the parties is extorted by fraud about some quality of the other party which could of its nature seriously disrupt matrimonial life;
  • if the consent of either of the parties is vitiated by a serious defect of discretion of judgement on the matrimonial life, or on its essential rights and duties, or by a serious psychological anomaly which makes it impossible for that party to fulfil the essential obligations of marriage;
  • if either of the parties is impotent, whether such mpotence is absolute or relative, but only if such impotence is antecedent to the marriage;
  • if the consent of either of the parties is vitiated by the positive exclusion of marriage itself, or of any one or more of the essential elements of matrimonial life, or of the right to the conjugal act;
  • if either of the parties subjects his/her consent to a condition referring to the future;
  • if either of the parties, did not have at the time of contracting marriage, even on account of a transient cause, sufficient powers of intellect or volition to elicit matrimonial consent.

9. What are the legal consequences of marriage annulment?

If a marriage is declared void, it is deemed to have never existed from the very beginning and everything reverts back to the original state of affairs of the parties before the date of marriage (eg the wife reverts back to her maiden surname). However, this does not effect in any manner the legitimacy of children born during that marriage or valid obligations contracted with third parties. As to maintenance, the spouse who was responsible for the nullity of the marriage is also duty bound to maintain the other spouse for five years, which obligation ceases if the latter party remarries.

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10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court?

There are no such alternative non-judicial means available.

11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?

  1. Divorce – Not applicable.
  2. Legal separation

Kindly refer to the reply to question 5 above.

Proceedings are started by means of a letter to the Registry of Civil Court. Should the couple opt to proceed with separation proceedings, the couple are to file a writ of summons in front of the the Civil Court, Family Section within 2 months from the date of the court decree authorizing the couple to do so.

A request for an annulment may be filed by either one of the spouses in front of the Civil Court, Family Section by means of a writ of summons which has to be signed by an advocate. The writ of summons specifies the ground/on the basis of which the applicant is requesting that the marriage be declared void.

As to the documents which need to be attached, apart from the marriage certificate of the spouses, the documents attached depend on the merits of the claim.

12. Can I obtain legal aid to cover the costs of the procedure?

Yes, if the party is eligible for legal aid. Kindly refer to the legal aid fact sheet.

13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?

  1. Divorce – Not Applicable
  2. Legal separation

    A party may file an appeal to the Court of Appeal within 20 days from the date of judgement.

  3. Annulment

    A party may file an appeal to the Court of Appeal within 20 days from the date of judgement.

14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State country recognised in Malta?

Assuming that a decision qualifies for recognition, the decision needs to be registered in the public registry.

15. To which court should I turn in Malta to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?

In order to impugn a recognition of a foreign decision, one must file a court case in the Civil Court, First Hall appealable to the Court of Appeal.

16. Which is the applicable law in a divorce proceeding between spouses who do not live in Malta or who are of different nationalities?

Although in principle it is possible to register a foreign decision, it is not possible to obtain a divorce in the Maltese Courts.

Further information

« Divorce - General information | Malta - General information »

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Last update: 03-08-2006

 
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