Family law is of utmost importance in everyday life because it deals with the most important issues in a person’s life. Family law deals with issues of maintenance, filiation, care and custody of children, separation, annulments and since recently divorce.
Separation means when two spouses, for some reason, decide to live apart. They can either go to court or reach an amicable separation. In the case of separation, the spouses’ obligation to live together in one matrimonial home will end, there will be a separation of estates and each party will be able to contract civil obligation without the need of the consent of the other spouse but they cannot re-marry. One is to note that under the Maltese Law once the spouses separate they still owe each other fidelity. However, in most cases people move on and there are cases when people even co-habitate and built a new life with a new companion. The Maltese legislation does not regulate the co-habitation of partners but there are already discussions in Parliament to fill this lacuna in Maltese Law.
Separation is the solution for many couples who find difficulties to cope with their marriage. According to the Maltese Civil Code [Chapter 16 of the Laws of Malta], separation can only be demanded upon one of the following four (4) grounds, namely:-
2. excesses, threats, or grievous injury on the part of one spouse against the other spouse
4. irretrievable breakdown of marriage, which means that the spouses cannot live together anymore due to incompatibility of character
It is mandatory under Maltese Law, that the spouses will go through mediation first to define whether there is a possibility of reconciliation. If there are no such possibilities they will, together with the mediator and most of the times with respective lawyers, try to agree on a contract that will regulate their separation of estate, maintenance, child custody and access, amongst other things. Once the agreement is reached, the mediator will draw up a report and the judge will give a decree. Only after this decree the contract can be published by a Notary and it is binding on all the parties and will be also registered in the public registry.
If an amicable separation fails to be achieved, then the Judge will authorise the parties to proceed to litigation, whereby the judge will decide on the matters before him based on proof presented.
Sultana Legal will advise its clients, help and support its clients throughout these very difficult times in order to decide the best way to go about separation proceedings, depending on the circumstances of the case.
An annulment means when the marriage is dissolved as if it never existed, in this case the parties will be able to move on and marry again with another party.
An annulment is quite common and it is usually resorted to by persons after having taken separation proceedings. The annulment is regulated by the Marriage Act chapter 255 of the Laws of Malta. Article 19 of the said Act gives an exhaustive list of situations when the nullity of marriage can arise. It is important to note that the grounds of annulment cater for a defect of the marriage at the time of consent.
Sultana Legal will advise its clients and help them throughout the procedure to obtain an annulment in a reasonable period of time. In these cases one will be dealing with very sensitive issues and our offices cater for all the support that individuals might need to go through this very delicate time.
Divorce is a very innovative law in the Maltese jurisdiction. The Maltese legislation recognised foreign divorces which were subsequently registered in Malta. Since Malta joined the European Union, there is a procedure of recognition of judgements which is available through the Brussells II EC 1347/2000 regulation.
The legislators found it difficult to introduce this legislation since Malta is a predominately Catholic country and besides the normal political issues that they encounter for every change, divorce was an issue that touched many moral issues engrained in the Maltese Society.
One is to note, that a referendum had to be passed in order for the legislative process to continue and the electorate gave an affirmative vote for the divorce law to go through under certain circumstances and with certain provisions.
When a couple obtains a divorce under the Maltese or any other legislation they can re-marry. The grounds for divorce are different from those of annulment since it is not necessary to have a defect of the marriage at the time of consent. Under our law, amongst other provisions, divorce can only be resorted to after four years of separation from the other spouse and thus, it can still be seen as bit restrictive.
Maintenance is an issue of utmost importance that crops up many times during separation proceedings and now, even during divorce proceedings. The issue of maintenance has however no basis in an annulment scenario unless this was agreed to in the separation process or under other specific provisions in the law.
During separation proceedings, according to Article 6 of the Civil Code, if a spouse leaves the matrimonial home and refuses to return thereto without a good reason will lose the right to claim maintenance. Furthermore, article 19 gives an exhaustive list of the definition of maintenance and one shall always abide to by that definition.
During divorce proceedings, the issue of maintenance is tackled in quite a rigid way that one must adhere to and maintenance is in no way lost in divorce proceedings. One has to see how this situation of maintenance and divorce evolves in practice. At Sultana Legal we will always do our utmost best to safeguard the interest of our clients and we are very positive that with the divorce legislation in place, we will be in a better position to give a better service and the opportunity for a better future for our clients.
Maintenance can be awarded both with regards of one spouse to another and also with regard to the children. There are certain provisions in the law that when the spouse forfeits his/her right to maintenance. In the case of children, the obligation to maintain the children is provided for in the law until they reach the age of maturity, or an older age if that is what the parties agreed to during separation proceedings. It is important to note, that the Maltese Legislation, the Maltese Courts and Sultana Legal adhere by the basic principals engrained in the legal system, that we direct our clients to take decisions in the best interest of the children because they are the future of our society.
Sultana Legal will advise its clients accordingly as to when it is appropriate to claim maintenance in separation and divorce proceedings and every case will be tackled in accordance on its own merits.
Care and custody of children
Legal care and custody of children is one of the most discussed topics during separation and divorce proceedings. The court shall direct to which spouse the legal care and custody of children shall be entrusted to. This can be to the spouses jointly or to one spouse and not the other with the right of access in favour of the other spouse but always keeping the best interest of the children as a priority. This is a very complex issue and beside the legal matters our clients have to face allot of emotional dilemmas.
Sultana Legal will advise and support its clients together with our team of experts in order to make it easier for the clients and to get the best deal possible in the situation, depending on the circumstances of the case.
Filiation means when a parent acknowledges his children which and is addressed in the Maltese Legislation in Chapter 16 of the Laws of Malta. Under the Maltese Legislation the presumption is that the father of the child is the husband of the mother. The law also gives an exhaustive list as to when the husband can repudiate the child conceived in wedlock, however this is also a developing area in view of case law.
Filiation can also happen if a child is born out of wedlock by acknowledgment or by court order. Each case has to be tackled on its own merits and always in the best interest of our clients.
Sultana Legal will do its utmost to achieve the best solution in a timely manner and under our motto that we want our clients to be satisfied with our service which hopefully will exceed their expectations.