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Explore Maltese secession procedures.
Associate Maria Camilleri delves into the intricacies of separation agreements in the second part of her informative series.
Separation agreement
when the spouses have come to an agreement on all matters relating to their separation; This is recorded in a written agreement referred to as the separation agreement. This article will discuss the standard provisions contained in such agreements. The reader should bear in mind that each agreement is specific to the parties contracting it, and to the particular facts of the case at hand.
The separation agreement is the result of a successful mediation process. It is a public bond that must be signed in front of a notary public after obtaining permission to proceed from the family court. Once the agreement is signed by the parties, it is recorded in the public record.
Civil Court (Family Section) when deciding on a case; Decree No. 348/2013 indicated that; (Translated into English)’The agreement is the law for the contracting parties. (…) The fundamental principle regulating the creation of contracts always remains that the contractual agreement must be respected and that the will of the parties, as expressed in the agreement, prevails and must be observed.’ (The contract is the law of the contracting parties)’
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It is therefore essential that the parties entering into a separation agreement willingly contract and be fully aware of its content and implications in law.
General provisions
The opening section of a separation agreement usually contains general details of the parties and the marriage and a reference to the court’s decision allowing the parties to proceed with the publication of the deed. Where the parties have children, details of their children are noted and, in some cases, a declaration is also recorded indicating the date on which the parties “effectively” separated.
Then the agreement moves to cancel some of the legal rights and obligations that were previously applied between the spouses; Such as the obligation of cohabitation and assistance, and the obligation of each other’s expense (financial support). Upon separation, the spouses give up their rights to each other’s inheritance, and any agency contracted between them also lapses. Upon signing the Separation Agreement, each of the spouses becomes an independent individual who represents himself when contracting in civil matters with third parties.
Provisions related to the children of the spouses
If the spouses have children who are still minors; The separation agreement must also regulate the relationship between the spouses and the legal obligations towards their children. The agreement must include provisions stating the following: visitation rights, care and custody, and the amount of alimony due for each child as a contribution to meeting his or her daily needs. The parties must also agree on where and with whom the children will live.
The usual practice is for the care and custody of the children to be exercised jointly between the two parties, whereby decisions of an everyday nature are the responsibility of the parent who will be present with the children at the time, while decisions of an unusual nature are taken jointly. The separation agreement specifies the days of the week and the times that a parent exercising visitation rights is entitled to visit their children. This usually includes pre-agreed time frames for visiting on special occasions such as birthdays, Father’s Day and Mother’s Day, as well as the summer holidays, Easter and Christmas. One reason for this scheduling practice is so that the parties have a point of reference in case of disagreement.
Each child is to receive financial support for their upbringing and daily needs, and then the separation agreement stipulates the amount of money owed to the parent with whom the children will live – the agreement also specifies the frequency (eg per month) and the method of payment. In addition, the parties must agree on how each parent will contribute towards the children’s health and education expenses (generally, it is divided equally between the parties).
The separation agreement also contains provisions governing travel; In the event that one of the parties wishes to travel with his children. Among the issues usually dealt with in a separation agreement we find; Provisions governing the time frame within which a parent who wishes to travel with his children must notify the other parent of his intention to travel, the resident parent’s right to obtain information on the destination, itinerary and travel dates, and cooperation between the two parties to issue the necessary travel documents for the children.
Organizing shared assets
If the spouses did not have a prenuptial agreement before marriage, their assets are regulated by the property community; Which entails that all movable and immovable property acquired during the marriage are owned by both parties in equal shares. Once a couple decides to separate, their joint property cannot be held. The separation agreement shall provide for the division and assignment of all assets relating to the property community between the parties; Upon signing the agreement, the spouses shall terminate and dissolve the community of gains. The assignment process excludes any property that was already owned by the parties individually prior to the marriage, which is referred to as personal property. The spouses must also reach an agreement regarding the future of the marital home. If the marital home is jointly owned by both parties; The options that are often sought are to give up the marriage to one of the parties, and the other party to compensate the other for his share; Or the marital home is sold, and the sale price is divided between the two parties.
As the Separation Agreement draws to a close, we find a number of public statements which are important to note; For example, that the two parties are satisfied with the contents of the agreement, and that the agreement will remain valid, applicable, and enforceable between the two parties even if the marriage between them is declared invalid or a change occurs in the status of the two parties. Under Article 62 of the Civil Code, spouses may choose to revert to their birth surname, in which case the choice must be indicated in the separation agreement for it to become valid under the law.
Request amendments to the separation agreement
The parties should keep in mind that if one party ultimately wishes to change any provision of their separation agreement, it can only do so with the consent of the other party to the agreement. The procedure to be adopted for this purpose is for the party requesting the amendment to initiate mediation proceedings to try to resolve the matter amicably. If the parties reach an agreement, the amended provisions are submitted to the court for approval in the same manner as the original separation agreement. If the two parties do not agree, the matter must be referred to the Civil Court (Family Division).
In Case No. 126/2009, the Civil Court (Family Division) clarified; (translated into English) “No clause in the Separation Agreement can be rescinded except with the consent of the parties, what is more, if the Claimant does not provide evidence of this, the obligations of the present Separation Agreement remain binding and cannot be changed.”2
In its decision in Borg v. Borg dated 30 November 2012, the Court of Appeal held the following: (Translated into English)’While the principle of the contract, the law of the contracting parties, should regulate personal separation agreements like any other contract,
In serious or exceptional circumstances or independent of the party’s will Which leads to the impossibility of one of the parties continuing to implement his obligation to pay alimony as agreed upon between the two parties, and the court has the power to reconsider this obligation.’3 This means that the court will only intervene in what was agreed upon by the parties, after it is satisfied through the evidence presented that the circumstances that led to the change are serious, exceptional, or independent of the will of the party.
footnotes
1. Case No. 348 of 2013 in which the court ruled on February 27, 2020; Ill-ftehim hu ligi ghall-partijiet kontraenti (…) Illi l-principle kardinali li jirregola l-istatut tal-kuntratti jibqa’ dejjem dak li l-vinkolu kontrattwali ghandu jigi rispettat u li hi l-volonta tal-contraenti how espressa fil-konvenzjoni li kelha Tipprevali u trid tigi osservata (Pacta sunt servanda ) ).
2. Case No. 126 of 2019, decided on January 23, 2013; By providing for acts of detachment from others, you shall be able to make the most of your works or more by proving part of the event, obliging you to begin to work on detachment from others. jorbtu ma jistghux jigu alterati
3. Borg v. Borg, decided November 30, 2012; ‘Abiding by the principle of contract is an act that separates personal business from every business, which makes business more complex, which makes it possible to have an independent will by working to maximize success gu tel- hlas ta’ manteniment pattwit bejn il-partijiet, il-qorti ghandha l–fakolta` li tirrevedi dan obbligu.‘
The content of this article is intended to provide a general guide to the subject. It is advised to take the advice of specialists in such circumstances.
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