Divorce process in Malta

Divorce legislation in the Maltese Civil Code was enacted by Act XIV of 2011, with subsequent amendments introduced by Act XXV of 2021.

Each of the spouses has the right to file for divorce, ie the annulment of the marriage. It can be done either jointly between spouses or by one spouse against the other. The civil jurisdiction courts of Malta have jurisdiction to hear and determine an application for divorce if at least one of the spouses was resident in Malta on the date the application for divorce was filed or at least one of the spouses was ordinarily resident in Malta for a period of one year immediately preceding the filing of the application for divorce.

Section 66b of the Civil Code contains the legal requirements to support an application for divorce.

The application for divorce shall be heard if, on the date of commencement of the divorce proceedings, the spouses had obtained a personal separation by virtue of a contract or court order. If the spouses are not legally separated, the law provides a time frame within which the spouses can proceed with a divorce application. If the spouses choose to file a joint application, on the date of commencement of the divorce proceedings, they must have lived apart for a period or periods of at least 6 months of the preceding year, whereas if the application is made by one of the spouses against the other, on the date of the commencement of the divorce proceedings, The spouses must have lived apart for a period or periods of at least one of the preceding two years. This entails that the period during which the spouses live apart need not be continuous, but when taken cumulatively amounts to six months or one year respectively.

In addition to the above, the court must be satisfied that there is no reasonable prospect of reconciliation between the spouses – this is usually confirmed by the parties’ declaration under oath, whereby they declare that they are living separate lives and there is no prospect of their relationship continuing.

The court must also be satisfied that if maintenance is owed to one of the spouses or their children, that the parties involved receive adequate maintenance; Payments are made regularly, and there are no arrears due. For the purposes of ascertaining this, the court may order the parties to provide information on the payment of child support. If the spouse requesting divorce is obligated to alimony by virtue of a judgment or contract and has not paid what is due, the court may not approve the request for divorce if it appears that granting the divorce would be more beneficial. Difficulty obtaining alimony for the concerned spouse.

If joint property or separately administered residual property ceases to apply between the parties prior to commencement of divorce proceedings, and the parties still hold joint assets, the parties may proceed with the divorce without liquidating such assets, if they both agree to do so.

A distinction must be made between couples who are separated by contract or court ruling, and couples who proceed to opt for immediate divorce.

Article 66d states that when applying for divorce, it is not necessary for the spouse requesting the divorce to impute fault to the other spouse as a justification for the proceedings, in contrast to the procedures for personal separation.

If the application for divorce is filed by a couple who are not separated by a contract or court ruling, the spouses must first appear before a mediator, according to Article 66I. The purpose of this legal provision is to try to reconcile the spouses. If reconciliation cannot be achieved, the parties are given the opportunity to try to reach an agreement on the terms of the divorce. The said agreement must include the following conditions: child custody and custody, access to children, support for spouses and children, residence in the marital home and division of joint property.

Section 4 (9) of Subsidiary Enactment 12.20 states that if the parties fail to reconcile and agree on the terms of the divorce or fail to come to an agreement completely, the mediator shall inform the court accordingly. Depending on the case at hand, the court will give the parties leave to proceed within a two-month time frame. If the parties do not reach an agreement, the applicant needs to present the claims that are usually determined during the personal separation proceedings in the divorce application; In particular with regard to the dissolution of the community of assets and the rights and obligations of the parties in relation to their children.

Article 66g of the Civil Code imposes an obligation on the lawyer of the applicant who wishes to proceed with the divorce immediately; To discuss the possibility of reconciliation, provide the applicant with contact details of qualified professionals to assist in the reconciliation process as well as ensure that the applicant is aware of the option of personal separation as an alternative to divorce. The same applies to the lawyer assisting the defendant, as stipulated in Article 66h. In fact, the law also states that, along with the application for divorce, the lawyer must submit a note confirming the fulfillment of the above obligation when the spouses are not legally separated.

The application for divorce must be submitted to the Civil Court (Family Division). Attached to it, the applicant must submit a complete copy of the marriage certificate of the parties, and in the event of the applicants separation, a legal copy of the judgment or contract of separation by mutual consent; In the event that the applicants are not dismissed, the lawyers’ memorandum shall be mentioned as stipulated in Articles (66g) and (66h). The application does not need to be affirmed by oath, but in practice the parties concerned prepare a sworn declaration confirming the applicability of the legal requirements for divorce as set forth in Section 66b.

It is also possible for parties that instituted separation proceedings to apply pendente lite For the request for separation to be considered as a request for pronouncement of divorce. If the Court determines that the conditions under Section 66B have been met, the Court will proceed to hear and decide both applications together.

During divorce proceedings, as is permitted during separation proceedings, the wife may choose to revert to her maiden surname by applying to the court to that effect. The law also provides for the possibility of a husband applying to the court to prevent his wife from using his surname. This may not be accepted unless it is proven to the court that the use of his surname again will cause him serious harm.

Upon the declaration of divorce, the right of the spouses to inherit from each other, the obligation of cohabitation between the two parties ceases, and the divorced parties acquire the right to remarry. Divorce proceedings do not affect the rights and obligations of the divorced parties as parents if the parties involved have children. The same principle applies if the divorcees had any agreements or obligations with third parties before the divorce judgment or decree was issued.

Finally, the court orders the Registrar of Courts to notify the Director of Public Record of the divorce between the parties for purposes of registration. Accordingly, the Explanations and Amendments Section in the Public Record records the divorce decision in the Explanations column of the marriage certificate of the two parties.