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Maltese Laws |
AN ACT to amend the Civil Code, Cap. 16.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled,
and by the authority of the same, as follows:-
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(a) In subarticle (1) thereof, the words "the children are entrusted, the father and the mother" shall be substituted
by the words "the dependant members of the family are entrusted, the spouses"
(b) Immediately after subarticle (1) thereof, there shall be inserted the following proviso:
Short title.
Amendment of article 54 of the Code.
Amendment of article 55 of the Code.
Amendment of article 57 of the Code.
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"Provided that for the purposes of article 57(1) "dependent members of the family" shall have the same meaning
as that given to it under article 66B(1) of this Code.".
(c) In subarticle (2) the words "the children" are to be substituted with the words "dependent members of the family
who have not attained majority.".
(d) In subarticle (3) the word "children" is to be substituted by the words "said members.".
"Sub-title IV OF DIVORCE
Divorce. 66A. (1) Divorce may be pronounced by a judgment of the competent Civil Court or effected by means of a public deed duly authorized by a decree of the competent Civil Court, which decree shall have the same effect as a judgement given by the same court.
Provided that, in the latter case, the spouses shall file a joint application, submitting the agreement reached between them for the
authorization of the competent court, which court shall incorporate such agreement in its decree.
(2) All suits for divorce shall be brought before the appropriate section of the Civil Court as may be established
by regulations made by the Minister responsible for justice and in such cases article 37 of Subtitle III of this Title shall
mutatis mutandis apply.
Necessary grounds for divorce.
66B. Subject to the following provisions, divorce may not take place except on the demand by either of the spouses concerned and unless the court is satisfied that:
(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods
amounting to, at least four years during the previous five years, or have been legally personally separated for at least four
years;
(b) there is no reasonable prospect of a reconciliation between the spouses, and
(c) the spouses and any dependent members of the family, are adequately maintained, according to their particular circumstances,
as provided in 66D(4) of this Code.
Provided that nothing in this article shall be construed as meaning that the spouses may not choose to forfeit their right to maintenance.
Provided further that the demand for divorce on the ground that the spouses have been legally separated for a period of
four years or more, shall not operate so as to vary or modify any judgment, decree or public deed of personal separation between
the parties and in such cases the provisions relating to the maintenance of the spouses in the said judgment, decree
or public deed of personal separation, shall be considered as providing for "adequate maintenance" without further
reference to any other article of this Code.
Provided further that "dependent member of the family", in relation to a spouse, or the spouses, concerned, shall mean any
child -
(i) of both spouses or adopted by both spouses or in relation to whom both spouses are in loco parentis, or
(ii) of either spouse or adopted by either spouse, or in relation to whom either spouse is in loco parentis, where the other spouse, being aware that he or she is not the parent of the child, has treated the child as a member of the
family,
who is under the age of 18 years or if the child has attained that age -
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Granting of divorce decree.
Divorce solely on necessary grounds.
(iii) is or will be or, if an order were made under this Code providing for maintenance for the child, would be receiving
full-time education or instruction at any university, college, school or other educational establishment and is under the age
of 23 years, or
(iv) has a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself
fully;
66C. On being satisfied that the requirements under section 66B have been met, the court shall grant a decree of divorce in
respect of the marriage concerned or authorise the publication of the deed of divorce, as the case may be.
66D. (1) Without prejudice to any other article in this Subtitle when divorce is demanded and/or granted solely on
the grounds of the previous article and the spouses are not legally separated:
(a) Articles 46, 46A and 47 of Subtitle III of Title I of this Code shall, where appropriate, mutatis mutandis apply during the pendency of the action;
(b) the court may, where appropriate and in its discretion, following a request by any one of the parties, or both, direct
that the community of acquests or the community of residue under separate administration existing between the parties shall cease
as from the day on which the application was filed or any other future date as it may deem fit taking into consideration all the
circumstances of the case.
(c) the obligation of cohabitation of the spouses shall cease for all civil effects on the day the judgement becomes res judicata;
(d) the court may, where appropriate and in the best interest of the child, give such directions as it considers proper regarding
the maintenance, welfare, custody of, or right of access to, any dependent member of the family concerned, whether or not an application
had been made to it in that regard;
Provided that where the court makes an order for the grant of a decree of divorce, it may declare either of the spouses concerned
to be unfit to have custody of any dependent member of the family who is a minor and, if it does so and the spouse to whom the declaration
relates is a parent of any dependent member of the family who is a minor, that spouse shall not, on the death of the other spouse,
be entitled as of right to the custody of that minor.
(e) the mutual rights of succession of the spouses shall cease on the day the judgement becomes res judicata, notwithstanding the provisions of any other law; and
(f) Articles 62 and 62A of Subtitle III of Title I of this Code shall mutatis mutandis apply;
(2) On divorce being pronounced, the court shall on the demand of either of the spouses, decide according to circumstances
whether
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(a) any one of them shall be entitled to reside in the matrimonial home, definitely of for such period as the
court may deem fit, to the exclusion of the other spouse or
(b) whether the matrimonial home should be sold and the proceeds of the sale be disposed of between the parties as the court deems
fit.
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(3) The court in exercising its jurisdiction under article 66D(2) shall have regard to the welfare of the spouses and any dependent
member of the family and, in particular shall take into consideration that proper and secure accommodation should, where
practicable, be provided for a spouse who is wholly or mainly dependent on the other spouse and for any dependent member of
the family.
(4) Where the matrimonial home is wholly or in part owned or otherwise held under any title by one of the spouses
and such spouse happens to be the spouse excluded from the matrimonial home, the said spouse may, at any time after the judgment
becomes res judicata, apply to the court to demand that the matrimonial home be assigned to him or her in exchange of proper and secure accommodation
for the other spouse and any dependent member of the family, confirming under oath his or her reasons for the same and annexing to
the said application any relevant documentation.
(5) The application mentioned in the previous sub-article shall be served on the other party to the separation proceedings, who
shall, within twenty days from receipt of same, file a reply, duly confirmed on oath, stating whether he or she adheres to the applicant’s
request and annexing to the said reply any relevant documentation.
(6) After having seen all the circumstances of the case presented to it by both applicant and respondent, the court shall
pronounce its judgment on the matter which judgment shall be subject to appeal.
Provided that where the applicant’s request is granted and the matter becomes res judicata, the respondent would neither be able, by a separate application to ask for the reversal of the judgment nor make any other request
that would be tantamount to the same.
Provided further that where the applicant’s request is not granted, he or she may at a later stage, but not sooner than eighteen
months from the day the judgment of the previous application became res judicata, file another application on the same grounds, if there are any significant changes in circumstances.
(7) On divorce being pronounced, the court shall on the demand of either or both of the spouses, decide on an adequate
maintenance for them and the dependent members of their family, according to the following paragraphs:
(a) any physical or mental disability of either of the spouses,
(b) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the
family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the
other spouse and any contribution made by either of them by looking after the home or caring for the family,
(c) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during
the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is
impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look
after the home or care for the family,
(d) any income or benefits to which either of the spouses is entitled by or under any law;
(e) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances
of the case be unjust to disregard it,
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(f) the accommodation needs of either of the spouses,
(g) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason
of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,
(8) Without prejudice to the generality of subarticle (7) of this article, in deciding whether to make an order referred
to in that subarticle in favour of a spouse concerned and in determining the provisions of such an order, the court shall, in particular,
have regard to the following matters:
(a) the financial needs of the member,
( b ) the income, earning capacity (if any), property and other financial resources of the member,
( c ) any physical or mental disability of the member,
( d ) any income or benefits to which the member is entitled by or under any law,
( e ) the manner in which the member was being and in which the spouses concerned anticipated that the member would be
educated or trained,
(f) the matters specified in paragraphs (a), (b) and (c) of subsection (7),
(g) the accommodation needs of the member.
(9) The court shall not make an order under a provision referred to in subarticle (3) with regards any one of the spouses,
unless it would be in the interests of justice to do so.
(10) Subarticles 54(3) to 54(7), both subarticles included shall mutatis mutandis apply in cases where for the reasons mentioned therein, the court deems it fit to apply them.
Additional, optional grounds for divorce when the parties are not legally separated.
(11) Where any issue in the subarticles of this article is already pending in a separation suit between the parties, the court shall
order that the judgement be filed in the acts of the pending separation suit within two days from it having become res judicata.
66E. (1) Without prejudice to any other article in this Subtitle when the spouses are not legally separated at the commencement
of the divorce proceedings, divorce may be pronounced by a judgment given on the demand of one spouse against the other
on any of the grounds stated in articles 38, 40 and 41 of Subtitle III of this Title or on any other grounds which may, in the future
be valid grounds for the obtainment of personal separation.
(2) When divorce is demanded on the grounds stated in article 66E(1), the relevant provisions of this Code relating to personal
separation of the spouses, except article 55A, shall mutatis mutandis apply. Article 66D(2) regarding the matrimonial home, shall also apply.
(3) Any party to separation proceedings which are pending on the date of the entering into force of this article, and which have
been so pending for at least four years, may request that the court pronounce divorce between the parties, instead of personal separation.
(4) A request in terms of the previous subarticle shall be made by means of an application, duly confirmed on oath and filed within
three months from the date of the coming into force of this article, specifying the ground or grounds on the basis of which
the demand for divorce is made.
Provided that in such cases, the court still has to be satisfied that the grounds mentioned in article 66B subsist in order to proceed.
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Duties of applicant’s lawyer.
Provided further that article 66B(a) shall be deemed to be satisfied where the separation proceedings between the spouses were
instituted at least four years prior to the coming into force of this article even though the said spouses still share the matrimonial
home.
(5) The application mentioned in the previous subarticle shall be served on the other party to the separation proceedings, who
shall, within twenty days from receipt of same, file a reply, duly confirmed on oath, stating whether he or she adheres to the request
that the court pronounce the divorce, and specifying any applicable ground or grounds in terms of this article.
66F. (1) If a lawyer is acting for the applicant, the lawyer shall, prior to the institution of the proceedings concerned
under article 68 of this Code, unless the applicant and his or her spouse have been legally separated -
(a) discuss with the applicant the possibility of a reconciliation and give to him or her the names and addresses of persons
qualified to help to effect a reconciliation between spouses who have become estranged,
(b) discuss with the applicant the possibility of engaging in mediation to help to effect a divorce on a basis agreed between
the applicant and the other spouse and give to the applicant the names and addresses of persons qualified to provide
a mediation service for spouses who have become estranged, and
(c) such a lawyer shall also ensure that the applicant is aware of personal separation as an alternative to divorce.
(2) The application by which the proceedings are instituted shall:
Duties of respondent’s lawyer.
(a) If a lawyer is acting for the applicant, be accompanied by a certificate, in the form prescribed in Schedule B of the
Code of Organisation and Civil Procedure confirming that he or she has complied with the requirements of subarticle (1) of this article,
or
(b) be accompanied by the judicial decree of separation or by the contract of consensual separation showing that the
applicant and his or her spouse have been legally separated for more than four years.
Provided that where the lawyer assisting the client in a matter of divorce has not filed the said certificate, judicial decree of
separation or contract of consensual separation, as the case may be, he or she shall file the same contemporaneously with the first
act to be filed in the Registry of the Civil Court (Family Section) in relation to the same matter.
Provided that in this section "the applicant" means a person who has applied, is applying or proposes to apply to the court
for the grant of a decree of divorce.
(3) The Minister may make regulations to allow for the establishment of a Register of Professional Organisations whose members
are qualified to assist the parties involved in effecting reconciliation, such register to show the names of members of those organisations
and procedures to be put in place for the organisations involved to regularly update the membership lists.
66G. (1) If a lawyer is acting for the respondent, the lawyer shall, as soon as may be after receiving instructions from the
respondent in relation to the proceedings concerned, unless the applicant and his or her spouse have been legally separated -
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Reconciliation attempts by the court.
(a) discuss with the respondent the possibility of a reconciliation and give to him or her the names and addresses of persons
qualified to help to effect a reconciliation between spouses who have become estranged,
(b) discuss with the respondent the possibility of engaging in mediation to help to effect a divorce on a basis agreed between
the applicant and the other spouse and give to the applicant the names and addresses of persons qualified to provide
a mediation service for spouses who have become estranged, and
(2) The respondent’s reply to the application of divorce shall, if a lawyer is acting for the respondent, be accompanied
by a certificate, in the form prescribed in Schedule B of the Code of Organisation and Civil Procedure confirming that
he or she has complied with the requirements of subarticle (1) of this article:
Provided that where the lawyer assisting the client in a matter of divorce has not filed the said certificate he or she shall file
the same contemporaneously with the next act to be filed in the Registry of the Civil Court (Family Section) in relation to the same
matter..
66H. (1) Where an application is made to the court for the grant of a decree of divorce, the court shall give consideration to
the possibility of a reconciliation between the spouses concerned and, accordingly, may adjourn the proceedings at any time for the
purpose of enabling attempts to be made by the spouses, if they both so wish, to effect such a reconciliation with or without the
assistance of a third party.
Inadmissible evidence.
Dissolution of marriage.
(2) Where, during the proceedings, it appears to the court that a reconciliation between the spouses cannot be effected, it may adjourn or further adjourn
the proceedings for the purpose of enabling attempts to be made by the spouses, if they both so wish, to reach agreement, with or
without the assistance of a third party, on some or all of the terms of the proposed divorce.
(3) If proceedings are adjourned pursuant to subsection (1) or (2) of this section, either or both of the spouses
may at any time request that the hearing of the proceedings be resumed as soon as may be and, if such a request is made,
the court shall, subject to any other power of the court to adjourn proceedings, resume the hearing.
(4) The powers conferred by this section are additional to any other power of the court to adjourn proceedings.
(5) Where the court adjourns proceedings under this section, it may, at its discretion, advise the spouses concerned to
seek the assistance of a third party in relation to the effecting of a reconciliation between the spouses or the reaching of
agreement between them on some or all of the terms of the proposed divorce.
66I. An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance
to effect a reconciliation or to reach agreement between them on some or all of the terms of a divorce (whether or not made in the
presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either
of the spouses concerned or such a third party, shall not be admissible as evidence in any court.
66J. (1) Where the court grants a decree of divorce, the marriage, the subject of the decree, is thereby dissolved and
a party to that marriage may marry again.
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Effects of remarriage.
Exercise of jurisdiction by the court in relation to divorce.
(2) For the avoidance of doubt, it is hereby declared that the grant of a decree of divorce shall not affect the parental
rights and duties, of the applicant and the respondent, over their children or any agreement between the spouses regarding joint
custody of their children.
66K. (1) Upon the remarriage of the spouse in whose favour a maintenance order has been or is made or authorized by the court
after having been agreed to by the parties, the order shall, to the extent that it applies to that spouse, cease to have effect,
except as respects payments due under it on the date of the remarriage.
Provided that any maintenance order that has, on the date of the coming into force of this article, been ordered or authorized to
be paid in a lump sum by the court in a judgement that has become res judicata or in a public deed of personal separation that has been duly published shall remain unaffected and such sum shall be deemed
to be due in full if it has not already been paid.
Provided further that any maintenance that has, on the date of the coming into force of this agreement, been authorized by the court
after having been agreed to by the parties in a consensual separation by public deed shall remain unaffected by 66K(1), even upon
remarriage of the parties, if the parties had agreed that such separation agreement would remain valid and unalterable in the
event of divorce being obtained by the spouses in the future.
66L. (1) The court may grant a decree of divorce if, but only if, at least one of the following requirements is satisfied -
(a) either of the spouses concerned was a citizen of Malta;
(b) either of the spouses concerned was domiciled in Malta on the date of the institution of the proceedings concerned,
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Miscellaneous provisions.
(c) either of the spouses was ordinarily resident in Malta throughout the period of one year ending on that date.
(2) Where proceedings are pending in a
court in respect of an application for the grant
of a decree of legal personal separation or in respect of an appeal from the determination of such an application and the court has
or had jurisdiction to determine the application, the court shall, notwithstanding sub article (1), have jurisdiction to determine
an application for the grant of a decree of divorce in respect of the marriage concerned.
66M. Where under any other code or act of the Laws of Malta there is the mentioning of the word ‘separation’ or any other form
of the same word it shall be taken to include ‘divorce’ unless the article in question specifically mentions otherwise or where
such meaning would go against the spirit of the article in question if it were to be so interpreted.".
The objects of this Bill are to allow for the introduction of the institute of divorce in the laws of Malta, under conditions and
requirements therein stipulated, and to make provision in consequence thereof.
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