The civil courts in Malta have jurisdiction to hear and determine demands for divorce if at least one of the spouses was domiciled in Malta on the date of the filing of the demand for divorce or if at least one of the spouses was ordinarily resident in Malta for one year immediately preceding the filing for divorce.

Either of the spouses may file for divorce or dissolution of the marriage, and although the parties would usually have already been separated according to law, the spouses do not need to be separated by means of a contract or by a judgement prior to the demand of divorce.

When divorce is pronounced between spouses who were previously separated by a contract or by a judgement, the pronouncement of the dissolution of marriage shall not bring about any change to what was ordered or agreed  between them, except for the effects of divorce resulting from the law, such as those related to succession and to the obligation of cohabitation. The wife may also request to revert to her maiden surname.

Subsidiary Legislation 12.20 requires that, in cases where the parties are not already separated, proceedings have to be initiated by means of an application requesting mediation proceedings. When a spouse is absent from Malta, the court may be asked to authorise the initiation of divorce proceedings without the need for mediation.

The demand for divorce may be made by both spouses jointly if they have lived apart for at least six months out of the preceding year. It may also be requested by one party against the other if on the date of commencement of the divorce proceedings the parties would have lived apart for at least one year out of the preceding two years, or on the date of commencement of the divorce proceedings, the spouses were separated by means of a contract or court judgment.

The court pronouncing divorce needs to be satisfied that there is no reasonable prospect of reconciliation and that the spouses and all of their children are receiving adequate maintenance, where this is due, according to their particular circumstances. Both parties have the right to remarry after the pronouncement of divorce.

Such were the circumstances in a judgement delivered by the Civil Court (Family Section) on April 27, 2023. In 2021, the applicant, who had been living in Malta for over five years, filed an application requesting the court to declare the dissolution of her marriage from her husband, who had never come to Malta.

The applicant also filed an application for the appointment of a curator to represent her absent husband. The curators appointed to the case did not manage to establish contact with the husband, however the court observed that the applicant had exhibited two sets of correspondence sent by him indicating that he had no objection to her request for divorce.

The applicant also requested the court’s authorisation to revert to her maiden surname, which request was acceded to.

There existed no community of acquests between the parties and neither did they ever acquire any assets or contracted any liabilities together. The court was also satisfied that there was no prospect or hope for reconciliation between them since, besides the fact that they had been separated de facto for over ten years, they were also living totally separate and independent lives

The parties had children who were no longer minors and there was no dispute over maintenance payments, thus all the legal requisites had been satisfied for the dissolution of marriage.

Dr Rebecca Mercieca is senior associate, Azzopardi Borg and Associates, Advocates.