Family Law 2024 Comparisons

The concept of divorce was alien to Maltese law until 2011 when a referendum was called to decide on the matter. Despite the option of divorce being available for more a decade now, it is customary in Malta to initially file for separation instead of divorce in the event of a matrimonial breakdown. Typically, once a separation is concluded, the involved parties may proceed to apply for a divorce order.

Personal Separation Under Maltese Law

When spouses seek separation in Malta, they are called for a mediation and reconciliation attempt. The mediator evaluates the possibility of reconciliation and submits a report to the Family Court. If reconciliation proves unattainable, personal separation may not take place except:

• on the demand of one spouse against the other, by filing an application before the Family Court; or
• by mutual consent of the parties, whereby a contract is signed before a notary public and then enrolled in the Public Registry of Malta.

In terms of the Civil Code, the grounds for a demand of separation are adultery, desertion for two years or more, cruelty, threats or grievous injury, and irremediable breakdown of the marriage where the couple has been married for at least four years – although it must be stated that the approach towards the last criterion is relatively liberal. If a spouse is found responsible for adultery or desertion, they may forfeit certain entitlements, such as maintenance, inheritance rights, and even their share of specific assets acquired through the efforts of the other spouse.

Upon conclusion of separation proceedings, the legal obligations between the spouses cease. The Community of Acquests regime, if applicable, ceases to apply and common property is liquidated.

Divorce

Separation does not terminate the matrimonial bond, hence once collateral matters and a separation is concluded, it is advisable for the parties to demand a divorce order. The Family Court will issue a divorce order provided that certain conditions are satisfied, namely:

• the couple must have lived separately for a minimum of six months during the preceding year or, when the demand is made by one of the spouses against the other spouse, the spouses must have lived apart for a period or periods amounting to at least one year in the preceding two years;
• reconciliation is deemed impossible;
• at least one of the two spouses must have had residency in Malta when submitting the divorce application; and
• the spouses and all of their children receive adequate maintenance (where this is due in terms of separation), according to their particular circumstances – either spouse may renounce their right to maintenance at any time.

Where an applicant wishes to proceed with divorce rather than first conclude a separation, the law places an obligation on the advocate of said applicant to discuss the possibility of reconciliation, provide the applicant with contact details of qualified professionals to help in the process of reconciliation, and ensure that the applicant is aware of the option of personal separation as an alternative to divorce. The same applies to the respondent’s legal counsel. In fact, the law further provides that – together with the divorce application – the advocate must file a declaration stating that this obligation has been fulfilled when the spouses are not legally separated.

Given that in Malta most marriages are celebrated in accordance with Catholic rites, it is pertinent to note that the effects of a divorce order are limited to the civil sphere. Unless such marriage is annulled by the competent church tribunal, a divorcee cannot contract a subsequent church marriage.

Annulment

Prior to the introduction of divorce, the only possibility for remarriage was for the parties to seek a declaration of nullity with regard to their failed marriage. Such a declaration implies that the marriage was null ab initio and therefore non-existent.

The jurisdiction over civil annulments is governed by the Marriage Act (Chapter 255 of the Laws of Malta) and an annulment petition is only allowed if at least one of the conditions specified in Article 19 of the Act are satisfied. An action for annulment of a marriage may only be brought before the Family Court by one of the parties to the marriage. The dissolution of a marital union through annulment can take place in the case of a defect in consent either through coercion, violence or fear, psychological anomalies, impotence that predates marriage, and lack of sufficient intellectual capacity at the time of marriage.

The grounds for a Catholic Church (canonical) annulment are government by the Code of Canon Law. In terms of a treaty between Malta and the Holy See, once a competent church tribunal grants an annulment, either party may demand that the court of appeal order the registration of such decision in the Public Registry of Malta. In such cases, the court of appeal verifies and confirms that the church tribunal followed the correct procedure in granting the annulment.

Same-Sex Marriages in Malta

Following amendments to the Maltese Civil Code introduced in 2017, same-sex couples have been placed at par with heterosexual couples. In case of marital issues and breakdown, the ordinary separation and/or divorce procedures are to be followed.

Timeframe and Service

There is no set timeframe within which proceedings must be appointed for trial before the Maltese courts. Once an action is brought before the Family Court, a first hearing is typically scheduled within a few weeks.

Service of the personal separation or divorce application (where this is done by one spouse and is not joint) is affected at the defendant’s residence or place of work. The procedure to be followed for valid service of any judicial act is set out in the Code of Procedure and must be adhered to meticulously. Once served, the defendant would have several days to reply to the plaintiff’s pleas – after which, the case would be appointed for hearing before the Family Court.

No timeframe is imposed on the judiciary to deliver a decision. This will depend on several factors – mainly, the complexity of the case and the evidence brought by the parties.

As with all civil cases, national rules on jurisdiction are applied by Maltese courts; these rules apply also in matrimonial cases. In terms of the Code of Procedure, the civil courts of Malta have jurisdiction to determine all actions concerning the following persons:

• citizens of Malta, provided they have not fixed their domicile elsewhere;
• any person as long as they are either domiciled or resident or present in Malta;
• any person, in matters relating to property situated or existing in Malta;
• any person who has contracted any obligation in Malta, but only with regard to actions stemming from such obligation and provided such person is present in Malta;
• any person who, having contracted an obligation in some other country, has nevertheless agreed to carry out such obligation in Malta, or who has contracted any obligation that must necessarily be put into effect in Malta – provided in either case such person is present in Malta;
• any person, with regard to any obligation contracted in favour of a citizen or resident of Malta or in favour of a body with a distinct legal personality or association of persons incorporated or operating in Malta, if the judgment can be enforced in Malta; and
• any person who, expressly or tacitly, voluntarily submits or has agreed to submit to the jurisdiction of the court.

In an action for divorce, at least one of the following requirements must be satisfied:

• one of the spouses is domiciled in Malta on the date of the filing of the demand for divorce before the court; or
• one of the spouses was ordinarily resident in Malta for a period of one year immediately preceding the filing of the demand for divorce.

In the case of disputes where a defendant is domiciled in an EU member state, the provisions of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) are applied by the Maltese courts.

In the context of family proceedings, it is typical in Malta for all matters to be brought together in one process. Thus, a typical family case – be it a separation or a divorce – will include demands related to children’s matters and financial matters. As such, the ordinary rules for jurisdiction as detailed in 1.2 Choice of Jurisdiction apply in financial proceedings.

The service requirements and timelines outlined in 1.1 Grounds, Timeline, Service and Process are applicable to financial proceedings.

In terms of the Maltese Civil Code, three matrimonial regimes may apply in this jurisdiction: the Community of Acquests, the Separation of Estates, or the Community of Residue under Separate Administration (CORSA). The default position is the Community of Acquests – although couples may elect to have the regime of Separation of Estates regulating their financial matters. CORSA is seldom resorted to.

In terms of the Community of Acquests, assets acquired after marriage are deemed to be jointly owned by the spouses, thereby safeguarding the financial interests of the less affluent spouse. However, personal possessions owned before marriage (paraphernal property) remain separate. Inheritance, even if acquired during marriage, is deemed paraphernal property. In terms of the Maltese Civil Code, the Community of Acquests applies automatically with regard to expatriates who relocate to Malta unless they agree to exclude such regime by public deed.

The regime of Separation of Estates aims to keep assets distinct so that acquests made by the individual spouses during marriage remain distinct. This regime shields family assets from potential creditors in the event of bankruptcy of a commercial undertaking of either spouse.

Specific rules apply to the matrimonial home. Irrespective of the ownership of the spouses’ abode, the court may give specific directions as to which party may take up residence during and after separation.

In the ordinary course of proceedings, common matrimonial assets (often including the matrimonial home) end up being liquidated and the proceeds thereof shared between the parties. Given that the court can only order a sale through a court auction, it is reasonable to expect the parties to sell their assets through realtors. In the few cases where a court auction is the only option, the price realised is usually below the market value.

Maltese procedural law does not contain specific rules on disclosure. It is up to the parties to bring forward evidence to prove the extent of the common assets and, where relevant, of the individual assets of the other spouse. Given that many separations are concluded amicably, the parties must rely on the good faith of the other spouse. In contentious proceedings, the parties summon entities such as banks, public authorities and employers to tender evidence of the holdings and earnings of the other party. This system is not ideal as it does not allow for complete and proper disclosure.

In Malta, maintenance for children is the rule not an exception. However, this is not the case for spouses in Malta who are parting ways. Circumstances of the case have a bearing on whether a spouse’s request for spousal maintenance is upheld.

The Civil Code establishes a number of generic rules on maintenance – namely, that:

• the spouse shall a prior right over the parents or other ascendants to maintenance – whereas, where both the spouse and children claim maintenance, they shall be in a position of equality;
• no spouse may claim maintenance from the children or other descendants or from the ascendants if such maintenance can be obtained from the other spouse; and
• the duty of one spouse to maintain the other shall cease if the latter, having left the matrimonial home, without reasonable cause, refuses to return thereto.

While common assets are divided equally between the spouses, the party responsible for the break-up may be ordered to pay maintenance to the other spouse. In determining maintenance, the court considers the working capacity of the spouses, especially in instances where the party claiming maintenance is deemed employable. In amicable separations, spousal maintenance is ordinarily waived.

Recent amendments to the laws on the matter underscore the importance of considering means, work capabilities, needs, and various circumstances when determining maintenance. Additionally, it takes into consideration circumstances that impact the spouses’ ability to support themselves and their children.

An interesting provision in the law relates to employability. The fact that the person to whom maintenance is due – in most instances, the wife – has had her chances of employability diminished because she has been out of the workforce for many years to take care of the children, the household and the husband will be taken into consideration when calculating maintenance. This clause intends to protect the stay-at-home wife or the wife who has had to abandon her career to take care of the family. A middle-aged woman who has been out of the workforce for more than a decade or two has limited chances, if any at all, of finding employment.

These legal provisions also consider every other income or benefit the spouses may receive other than social security contributions. The accommodation requirements of the spouse and of the children and the amount that would have been due to each of the parties (eg, a benefit under the pension scheme), which are being forfeited due to separation, are taken into consideration.

In the divorce law, there is also a provision that aims to protect the right to maintenance in the form of a monetary guarantee. In fact, the law states that maintenance can be safeguarded by means of a guarantee in the form of a sum not exceeding the amount of maintenance for five years. The court will only order such a guarantee if it is shown that the person providing maintenance has, for example, not given maintenance consistently to the detriment of the children or spouse. If a divorcee receiving maintenance remarries or enters into a “personal relationship” – presumably also including cohabitation – then they will forfeit their entitlement to maintenance. This provision is also applicable to separation proceedings.

Maltese law permits spouses to enter into prenuptial or postnuptial agreements. Such agreements are governed by Article 1237 of the Civil Code. This provision allows prospective spouses to form agreements, provided they align with moral standards and the general principles outlined in the Civil Code. In both prenuptial and postnuptial contracts, couples can agree on the separation of property acquired during marriage or opt for CORSA. However, the Civil Code prohibits certain agreements, such as those establishing one spouse as the head of the family or altering the legal order of succession.

Before marriage, couples may modify the marriage contract with mutual consent. Post-marriage alterations require court authorisation to ensure the rights of third parties and children are safeguarded. Any provision disallowed in prenuptial agreements is also invalid in postnuptial agreements.

The subject matter of a contract is significant and Article 985 of the Civil Code prohibits contracts involving any subject matter that is impossible, prohibited by law, contrary to morality, or against public policy. Valid public deeds must be executed in the presence of a notary public.

Prior to the enactment of the Cohabitation Act (Chapter 571 of the Laws of Malta) in 2017 (which has since been repealed and replaced by Chapter 614 of the Laws of Malta), Maltese law did not protect cohabiting couples. The only protection cohabiting couples enjoyed was a quasi-contractual remedy of compensation for services rendered – that is, the liquidation of compensation for services rendered by the court upon the demand of a cohabitee (usually filed by an unemployed person against the breadwinner in the household).

The situation is now regulated in terms of law. The new Cohabitation Act generally entitles persons who consider themselves to be in an intimate relationship and who wish to live together to enter into a formal cohabitation relationship in terms of the Act. The new Cohibitation Act bestows several rights and protections upon couples who register their cohabitation pursuant to the provisions of the Act. These rights, similar to those enjoyed by married or civil union couples, include the following.

• Tenancy rights – a cohabitant is considered a tenant for all legal purposes, irrespective of the date of the lease and whether residential or commercial, granting them certain rights and protections in relation to such.
• Family membership – cohabitants registered under the Cohabitation Act are recognised as members of the family.
• Employment rights – cohabitants enjoy rights similar to those of married individuals or those in civil unions with regard to work-related matters, including leave entitlements and other employment benefits.
• Designated next of kin – under the Cohabitation Act, a cohabitant is regarded as the closest person to the registered cohabitant. This designation carries certain legal implications, especially in matters involving medical decisions and inheritance.
• Children’s allowance – cohabitants who have children are eligible to receive children’s allowance in accordance with the relevant legislation. Children (if any) would also have the right to live in the common home, unless otherwise determined by a competent court.

A person who – immediately prior to the termination of the relationship or the death of the other party – was continually and habitually living with another person as a couple, and who had been living with the same person for a period of not less than two years, and whose relationship is not regulated under any law may file an application before the court within 12 months requesting the following rights (as the case may be and subject to certain limitations):

• the right of habitation in the common home for a period determined by the court; and
• the right to be compensated for any patrimonial loss that person may have suffered, where the other party would have enriched themselves to their detriment.

The Maltese courts issue executive acts to enforce court judgments and orders. These executive acts may take the form of either warrants to seize property (movable and immovable) or garnishee orders intended to attach the funds of the debtor to third parties (usually banks).

Failure to pay maintenance when due constitutes an offence that is punishable by detention.

Proceedings before the Maltese courts are public. Similarly, all documents and records of the proceedings are accessible to the public. There are restrictions in the Family Court – although there is no blanket restriction on the media covering proceedings. Specific orders are made when necessary to protect individuals who require protection in the context of ongoing proceedings.

Keywords do not feature as a headline in the case law. However, the legal case management system used by the Courts of Justice in Malta offers a function whereby certain judgments deemed of interest to the public are indexed – ie, a set of keywords would be grouped together with a summary of the judgment linked to the record.

Since 2000, all case law is fully published in Malta via the portal of the Court Services Agency. Judgments delivered by the Family Court are anonymised. Over time, the Court Services Agency receives requests from individuals whose names appeared in judgments for their records to be removed from the public online database. The “right to be forgotten” pursuant to the EU’s General Data Protection Regulation applies to such cases.

Alternative dispute resolution methods in Malta cannot simply be considered in a vacuum. This is mainly because they are viewed as methods to address general civil claims, rather than being specifically established to address family law matters or as an alternative means of resolving financial disputes.

Even though court litigation is still one of the strongest forms of dispute settlement in civil matters in Malta, alternative methods do exist. Indeed, arbitration and mediation have become more popular in recent years. In 2004, mandatory mediation was introduced in most family cases and is used as a method to help parties reach an amicable settlement rather than go through costly and lengthy judicial proceedings.

In terms of the 1996 Arbitration Act, disputes concerning questions of personal civil status (including those relating to personal separation, divorce or annulment of marriage) are not capable of settlement by arbitration. An exception was introduced in 1999 so that questions relating to the division of property between spouses may be referred to arbitration, subject to the competent court’s approval of the arbitration agreement and of the arbitrator to be appointed. Unfortunately, this procedure is seldom resorted to.

The jurisdictional grounds outlined in 1.2 Choice of Jurisdiction are generally applicable to child proceedings, given that Maltese procedural law does not differentiate between classes of claims within the context of marital breakdown.

The jurisdiction of the Maltese courts is subject to the provisions of Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility (the “Brussels IIbis Regulation”). A Maltese court will only have jurisdiction over divorce proceedings pursuant to the Brussels IIbis Regulation.

Maltese legislation and case law gives utmost importance to the best interests of the child. Care and custody of a child is not simply based on who is the better parent but also on what decisions will be in the child’s best interests.

Any arrangement by parents concerning a child requires the approval of the Family Court. Thus, for instance, the court will not ordinarily favourably consider a living arrangement that does not provide for a certain degree of stability and routine for the child.

Children’s matters in Malta are typically grouped under three categories, as follows.

Care and Custody

Normally, the parents agree that care and custody is to be shared, subject to an express agreement as to the residence of the child. In contentious situations, the court will only deprive a parent of care and custody if there are circumstances that warrant such action.

Where adverse indications arise, social workers will be asked to intervene and carry out their assessments. In the unlikely event that care and custody is vested in one parent to the exclusion of the other, certain matters will still require the consent of the other parent. These include matters relating to access or the removal of the child to another country.

Visitation Rights

Visitation rights are afforded in a way that tries to eliminate disruptions to the child’s schedule. Non-observation of visitation rights undoubtedly results in hardship on the other parent at the expense of the child and, in view of this, action may be taken if a court-sanctioned schedule is not followed.

Child Support and Maintenance

Generally speaking and in accordance with article 157 of the Maltese Civil Code, parents are obliged to maintain their children until the age of majority (ie, when the child reaches the age of 18).

Maintenance encompasses necessities such as food, clothing, health, habitation, and child-related expenses for health and education. The amount of maintenance payable to the primary caregiver is determined based on the claimant’s needs and the financial capacity of the person responsible for providing maintenance. When evaluating a claimant’s ability to contribute to maintenance, consideration is given to their income. Assets owned by the claimant, both movable and immovable, are also taken into account.

In 2011, amendments to the Civil Code established that parents are obliged to continue offering sufficient maintenance for their children (depending on their means) until the children reach the age of 23 if the children are in full-time education or training. Likewise, maintenance obligations do not cease if a child has a mental or physical disability recognised at law.

If the parents have conflicting and opposing views regarding specific issues (ie, schooling, medical treatment, or religion), the parties may seek a court decision. Whenever any individual desires to proceed before the Civil Court (Family Section) in connection with disputes between parents concerning the custody and maintenance of or visitation rights to their children (or variation of any agreement in relation to these matters), the claimant must first demand that mediation takes place. If the parties fail to reach agreement in mediation, the matter will be referred to the courts for decision.

Maltese law clearly states that there is no age limitation with regard to the witnesses who will take the stand during legal proceedings, provided that they understand that “it is wrong to give false testimony”. Article 131(4) of the Civil Code of Malta states that in family matters the court shall hear the parents and the child, if such child has attained the age of 14 years, and then suggest a way forward. If the disagreement between the parents persists, the court can also authorise “the parent whom it considers more suitable to protect the interest of the child in the particular case to decide upon the issue”. Exceptionally, in situations of imminent danger, any one of the parents may act and take urgent measures. The office of Children’s Advocate has been recently introduced and one augurs that it will develop into a fully-fledged institution for the protection of children’s rights in family matters.

Parental Alienation

In IS and Others v Malta as decided by the European Court of Human Rights (ECtHR), the ECtHR noted that the State did not abide by its positive obligation to protect the right to family life as established by Article 8 of the European Convention on Human Rights (ECHR) as state authorities did not pursue all the necessary actions to reunite the applicant with his children. Apart from this case, the applicant had tried to seek effective redress through local remedies; nonetheless, these failed to implement the required measures to protect the consistent contact and the relationship between the applicant and the child.

The court has to ensure that any decision taken in the context of family matters is in the child’s best interests. When faced with allegations of parental alienation, the court may appoint experts to assess the situation. They will recommend the necessary action to prevent escalation and to re-build the relationship between the child and the rejected parent. A public agency supports families in this situations.

The only compulsory ADR in family proceedings in Malta is the mediation process a couple has to go through before filing for separation or divorce.

If mediation is successful, an agreement is drawn up to regulate the matter being addressed and is presented to the court for approval. Once signed by the parties, it is binding and – unless there is a serious change in circumstances – unlikely to be modified by the court.

In the context of financial matters, further information has been provided in 2.9 Alternative Dispute Resolution (ADR).

See 2.8 Media Access and Transparency.