Specific provisions relating to personal separation and divorce contained in the Civil Code (Chapter 16 of the laws of Malta) (the "Code") were recently amended by means of Act XXV of 2021 (the "Act").
The position as it stood prior to the amendments brought about by the Act provided that a couple could only request divorce on the basis of irretrievable breakdown of marriage where the parties were married for at least four years. One may argue that in practice, such limitation was not always imposed. However, the Act amending Article 40 of the Code has removed the four-year period altogether. Therefore, a party may apply for personal separation at any point after celebration of marriage.
The second significant change is directed towards sub-paragraphs (a) and (b) of Article 66B of the Code relating to the conditions required for a demand of divorce to be obtained.
Prior to the amendments, a party could only apply for divorce if the party filing the divorce could prove that the parties had not lived together as a married couple for a period of at least four years in the five year period preceding the application or that the couple had been legally, whether judicially or contractually, or de facto, separated for a period of at least four years prior to the divorce application. By virtue of the new amendments, the latter period of four years has been abolished and two new alternative time periods have been introduced:
- Where a demand for separation is made jointly by the spouses, on the date of commencement of the proceedings, the spouses must have lived apart for a period of, or period that amount to, at least six months out of the preceding year.
- Alternatively, where a demand is made by one of the spouses against the other spouse, on the date of commencement of the divorce proceeding, the spouses must have lived apart for a period of or periods that amount to, at least one year out of the preceding two years.
Furthermore, where an application for divorce is filed, whether by the parties jointly or by one party alone subsequent to a court judgment pronouncing separation between the parties or subsequent to the publication of a deed of separation, no time period is imposed. Therefore, an application for divorce may be filed immediately upon pronunciation of separation by court judgment or obtainment of separation by deed of separation.
The amendments have in essence preserved two essential requisites and the law imposes that in all circumstances where a divorce application is filed and therefore, in order for a divorce application to succeed, irrespective of whether the parties are separated or otherwise and irrespectively of whether the application is filed jointly or otherwise, the court shall only pronounce divorce if it is proven to the court that:
- There is no reasonable prospect of reconciliation between the parties, AND
- The parties, and every offspring, are receiving maintenance from the party obliged to pay such maintenance where such maintenance is due. The spouse receiving maintenance for herself or himself may renounce to such maintenance.
A full version of the Act can be accessed from here.
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