Until recently divorce in Malta was not regulated under Maltese Law and couples whose marriages have broken down could only apply for a legal separation. However, with the introduction of divorce in Malta couples are now able to obtain a divorced if they qualify in the eyes of the court and in accordance with the provisions of the law.
Various decisions have to be made, including what will happen to property, who will be awarded care and custody of and access to the children, and the amount of maintenance to be paid for the spouses as well as for the children. These decisions will have to be taken whether the spouses legally separate or whether they opt for divorcing. Off course Sultana Legal will guide you through the whole process regarding separating and divorcing and will explain all there is to know about divorce versus separation.
In accordance to the Maltese civil code separation in Malta can only be applied for on one of the following four conditions:
1. Adultery
2. Excesses, threats or grievous injury on the part of one spouse against the other spouse.
3. Desertion
4. Irretrievable breakdown of marriage, which means that the spouses cannot live together anymore due to incompatibility of character.
With a legal separation, the couple must go through a mandatory mediation process. Once a couple is legally separated, then the parties may establish a separate place of abode, but fidelity and support are still obligatory in accordance to Maltese Law. The party at fault may incur the court expenses however one has to take every case by its own merits. The new provisions which cater for Divorce specifically state that no changes shall be brought about to the separation agreement set in a contract or in a judgment of the court. Therefore everything that was ordered or agreed upon in the separation will remain effective. The only changes that will take place are those required for the effects of divorce to become applicable.
The essential difference between separation versus divorce is the possibility of re-marriage. When couples separate, they are freed from the obligation of cohabitation and assistance but they are still bound by the obligation of fidelity and off course they cannot re-marry third parties. The Law perceives separated couples as still married to each other and thus are not free to re-marry. Divorcing a spouce dissolves the marriage therefore, from the date of the divorce decree, the parties are free to remarry.
With the introduction into the Maltese legislation of Divorce, an aggrieved spouse may file an application before the Maltese Courts, asking for a judicial pronouncement of divorce if the spouses in question have been legally separated for at least four (4) years or have lived apart for a period of, or periods that amount to, at least four (4) years. Alternatively, the spouses may file a joint demand for divorce after having reached a consensual agreement that their marriage is to be dissolved however the requirements provided for in the law still have to be met. In these circumstances, the Maltese Court must be satisfied that there exists no reasonable prospect of reconciliation between the spouses and that all of their children are receiving adequate maintenance. If maintenance is due by one of the spouses, it must be successfully provided for by the spouse who owes it, for them to be eligible to apply for divorce. If the couple is already separated and maintenance for the children has already been agreed upon in the agreement or through a court order those obligations will remain consistent. Just like in separation a spouse may lose his/her right to maintenance if he or she is attributed fault for the dissolution of the marriage, like for instance when the spouse had an adulterous affair or disserted his spouse. Off course maintenance due for a spouses who decides to get married to third party ceases automatically.