Divorce law is a relatively new concept to Maltese legislation. This is because such laws have only recently been introduced (October 2011) in the Maltese legal system. The term ‘divorce’ implies the termination of a marital union, the extinction of legal obligations towards one’s spouse and the change in status with regards to matrimonial regimes.
Divorce in Malta is a rather controversial concept due to the fact that it is found in the Constitution that Malta is a Roman Catholic Apostolic state. However, the Maltese legal system is continually evolving and adapting itself to modern lifestyles.
Divorce is a further step taken after separation. The latter implies the spouses no longer living together or at least leading separate lives but still being legally married whilst divorce legally terminates the marriage and the rights and obligations which spouses have towards each other. However, neither separation nor divorce terminates any rights and legal obligations which one has towards his/her children.
Unlike separation, divorce in Malta is not fault-based and therefore, neither one of the spouses is to be found at fault for causing the termination of the marital union. For a person to apply for a divorce, the couple has to have been living apart for at least four out of the last preceding five years or, at least four years have lapsed from the date of their legal separation (legal separation may be voluntary or adjudicated by a competent court of law).
The Maltese divorce law strives for reconciliation and mediation prior to instituting divorce proceedings. Through this one can tell that the Maltese legislator attempts to reconcile the couple and resort to separation or divorce as a last resort. This also shows that the Maltese legislator has at heart the best interest for the couple as well as any children which may have resulted out of the marital union.
Prior to a divorce in Malta being pronounced, there are instances that the court will send the couple to mediation to attempt to reconcile them. It will only go ahead with the application for divorce if the previous requirements with regards to separation or the couple living apart are required as well as if there is substantial evidence that there is no chance of the couple ever reconciling.
In the pronunciation of a divorce in Malta, the court shall determine various criteria such as maintenance to the other spouse and children, apportionment of marital property, the division of the community of acquests (if that is the applicable matrimonial regime) and any other matters pertinent to the case which have not been agreed upon before in either an amicable legal separation or a separation decree declared by the competent court. If any agreements have been made prior to the divorce proceedings, the competent court shall apply them.