Divorce, or in other words, the dissolution of marriage, was introduced into Maltese Legislation by Act XIV of 2011. Despite having been around for over ten years, the ins and outs of the process may still be new or unfamiliar to many, all the more so following the amendments introduced by Act XXV of 2021, which were designed to create a more expedient and fair process in which the best interests of the spouses are not overlooked, and their intentions not disregarded.
A request for divorce begins with an application filed in the registry of the First Hall of the Civil Court (Family Section), either by the spouses jointly, or by one spouse against the other. Where the application is made jointly by both spouses in agreement, the divorce is granted by the court by means of a decree.
Meanwhile, where the application is made unilaterally, i.e. on the demand of one spouse against the other spouse, the divorce is granted by means of a judgment. The relative judgment or decree, as the case may be, must be read out in open court.
A spouse who has been notified with a request for divorce from the other spouse (the “receiving” party), may declare his non-objection to the said request, in which case, the court may grant a favourable judgment after ensuring that the necessary requirements for divorce are met. A case in point in which a demand was made unilaterally by one spouse against the other spouse and met with approval is the judgment MC vs. NE decided on 12 September 2022. The names of the parties have been concealed due to privacy.
For a marriage to be successfully dissolved, the court must be satisfied that a number of requirements have been adhered to. These requirements will vary depending on whether the spouses are already legally separated by means of a contract or a judgment. It follows that in order to obtain a judgment or decree granting divorce, the spouses need not be legally separated from each other.
When the spouses are already legally separated by a contract or a judgment
The court must be assured that there is no reasonable prospect of reconciliation between the spouses. This is usually confirmed by the spouses themselves in a sworn statement either in writing (via an affidavit) or in the Court Hall (viva voce). In addition, the spouses and their children, if any, must be receiving adequate maintenance, if and where this is due, which right to maintenance may be renounced by the receiving spouse at any point in time. Maintenance is deemed to be “adequate” where this is ordered by the Court in a judgment or agreed upon by the parties in a contract of separation.
When the spouses are not legally separated by a contract or a judgment
Where a demand for divorce is made by one spouse against the other, on the date of filing one’s application for divorce, the spouses must have lived apart for at least one year (or periods amounting to one year) out of the previous two years. However, when the demand is made jointly by both spouses, the spouses must have lived apart for at least six months (or periods amounting to six months) out of the previous year.
In such circumstances, the court must also order the parties to appear before a mediator with the aim of attempting reconciliation, and where this is not achieved, an attempt shall be made at agreeing on the fundamental aspects of the divorce proceedings, such as care and custody of the children (if any), the access of the two parties to the children, maintenance, residence in the matrimonial home and the division of the community of acquests (if applicable).
Conclusion
As a general rule, the concept of divorce centres around a “no fault” principle. In other words, unlike separation, the spouse filing an application for divorce against the other spouse need not impute any fault to the “receiving” spouse, which may have been the reason behind his/her request.
Essentially, there are a panoply of effects of dissolution of marriage or divorce, including but not limited to, the termination of the obligation to co-habit for all intents and purposes at Law, the termination of the right of each spouse to inherit from the other spouse and more importantly, the right to remarry.
Dr Nicole Vassallo is a Junior Associate at Azzopardi Borg & Associates Advocates.