Divorce can be described as the dissolution of a valid marriage. This is to be decreed by a judgement of a court of competent jurisdiction, made during the lifetime of both spouses after attempts for reconciliation fail. It will have the effect of terminating the judicial relationship between the spouses and returning their personal status to the status quo ante, thus allowing remarriage. This is how the history of divorce in Malta starts.
Although the history of divorce in Malta is very short, in England, divorce by a decree of the civil courts was introduced into the law in 1857 by the Matrimonial Causes Act of that year. However, even prior to its coming into force, “where a man could have his marriage dissolved before as well after he could establish that his wife had committed adultery, that he himself had not done so, and that there was no connivance or collusion between the parties.” At the time the predominant view that the process would inevitably increase the appetite for divorce and threatening the stability of family life and therefore as a consequence it was also difficult in England to introduce the legislation. Parliament had to go through lengthy sessions in summer until the bill was finally concluded. I took this example in order for one to understand that it is always difficult to introduce such a change in legislation, however, here we are talking about a long time ago. The impact of divorce did not have a positive impact on the British society because there was a time where the rate of divorces was very high. Also due to the fact that it was so easy to obtain, individuals who hurried into getting married again were most of the times faced with another divorce a few years down the line.
European Community Law
EC Regulation 2201/2003 provides that in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:-
(a) in whose territory:
• the spouses are habitually resident, or
• the spouses were last habitually resident, insofar as one of them still resides there, or
• the respondent is habitually resident, or
• in the event of a joint application, either of the spouses is habitually resident, or
• the applicant is habitually resident if he or she resided there for at least a year immediately before the application for divorces are made, or
• the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there:
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.
The regulation also provides that any court of a Member State that has pronounced judgment of a legal separation has the jurisdiction to convert same judgment into divorce where the law of the said State provides for such conversion.
At this point, one is to make a definition of the concept of domicile and the Regulation specifically provides that the Definition of domicile has the same meaning attributed to it as under the legal systems of the United Kingdom and Ireland .
The are four general rules to the concept of domicile are that:-
• Nobody shall be without a domicile. The law assigns a domicile of origin to every person at birth until a new domicile is acquired.
• A person cannot have two domiciles.
• The presumption is in favour of the continuance of an existing domicile. The Maltese and English law are very strict and do not take the matter of change of domicile very lightly. The presumptions are in favour of the domicile of origin and therefore unless the judicial conscience is satisfied by evidence of change, then the domicile of origin persists and the acquisition of a domicile of choice is a serious matter, which should not be lightly inferred from indications or casual words.
• The domicile of a person is to be determined according to the concept of domicile of the forum and not foreign law, and therefore the court, in the history of divorce, will always apply its own definition of domicile.