Divorce and a New Life
Today divorce in Malta is being looked upon as something original, fresh and significant since divorce brings about a new life for every person given that every person concerned has a right to remarry and to begin a new life with a different partner. Prior to October 2011, the only opportunity that a person had to re-marry after a breakdown of a marriage was if one obtained an annulment. However, such remarriage can bring about enormous impacts where the maintenance that the spouse who used to receive from the other spouse will be forfeited upon remarriage of the spouse who was receiving such maintenance. On this divorce in Malta we will shortly be discussing these subjects.
A basic characteristic of the divorce proceeding in Malta is that in Malta divorce is different from separation. Where upon separation in accordance to Maltese Law, spouses still owe each other fidelity, accordingly if the spouse who is receiving maintenance engages in a relationship with another person, s/he forfeit his/her right to maintenance from the other spouse. This fidelity obligation does not arise at all during divorce proceedings when divorce and a new life are the goal. Despite that, the spouses will continue to enjoy the joint and legal custody of their children upon divorce, separation or annulment proceedings. Consequently, even though divorce and a new life are involved, both parents continue to have the obligation of maintenance towards their children until the age of twenty three years old in the case of those children who are furthering with their education while until the age of eighteen years old in the case of those children who stop from furthering with their education. Each case has to be seen in its own merits in case of divorce and then the maintenance has to be decided upon separately.
Divorce and the State
When somebody mentions the fact that upon the finalization of the divorce declaration one can remarry, this only means that one can remarry by virtue of the civil marriage. Hence, people have to make a division where divorce and the State must be considered as one thing while the Church and its annulment proceedings should be considered as another entirely unconnected thing. This means that divorce in Malta can only be pronounced by the State which proceeding can be resorted to by any of the spouses, whether if they are already separated by a pronouncement or judgment or even if they are not still yet separated. The particular crucial clause that needs to be fulfilled for the Maltese courts to accept a Malta divorce application is that the spouses have lived apart for four (4) years out of the preceding five years from the date of application for divorce and there is no chance of reconciliation of the applicants.
Accordingly, a separation has to be made between the civil marriage and the church marriage. The State gives the option for a person to go either for separation proceedings, divorce proceedings or even annulment proceedings though a division has to be presented between these three (3) types of proceedings since they have singular impacts. In Malta divorce law involves that a person has an absolute right to remarry apart from the fact that the person who remarries will lose the right to continue receiving any maintenance from the other spouse. Annulment also means that the spouses can remarry because the first marriage is declared as non existent and none of the spouses can ask for maintenance from the other spouse since such marriage is declared nonexistent. With divorce and the state its recognition a new marriage is possible just like in the case of annulment. While separation means that the spouses can stop cohabiting together except that they cannot remarry and maintenance can be asked by any of the spouses from the other spouse. The Courts will look at all information regarding divorce and then take into deliberation the means of both spouses, to decide if there is the need to provide for maintenance by any of the spouses to the other spouse or otherwise.
Annulment can be pronounced by the State only on the grounds indicated in the Marriage Act, where this Act gives an comprehensive and exhaustive list from which the Maltese Courts have to reach a verdict if there is the possibility for an annulment decision or otherwise.
In contrast, separation is only pronounced by the Court if one of the following four (4) cases arises, which can be summed up as follows
- adultery
- excesses, cruelty, threats or grievous injury
- desertion (but four years have to pass from the date of marriage to be cited by any spouse)
- irreconcilable characters (unless four years have to pass from the date of marriage to be cited by any of the spouses)
As a result, two important variations that seem to arise between divorce, annulment and separation are:
- remarriage
- maintenance
On the contrary, a common characteristic between these three unconnected types of pronouncements is that maintenance to the children is always granted by both spouses even in the event that any of the spouses remarries and even if the marriage is declared null.
Divorce and the Church
The customary viewpoint is that a person can only celebrate a Church marriage once in his or her entire life since divorce and the church are not compatible. This is only the case with the elimination of when such marriage is pronounced annulled by the Ecclesiastical Tribunals although such annulment procedure can take time. Though, if a person wishes to choose such annulment, he can do so but always keeping in mind that such annulment is only given in specific cases listed in the Canon Law, with the Ecclesiastical Tribunal having full discretion to consent such annulment or otherwise. Nevertheless, for a lawyer to represent a person in such Tribunal, he or she must be qualified to do so.
A moderately crucial and essential point is the separation between the State annulment and the Church annulment where a person might have the right to obtain the annulment of the State but such annulment is in no way an affirmation that the same person will obtain the annulment pronounced by the Ecclesiastical Tribunal. Also the procedures for divorce and the church annulment are not the same and a civil divorce does not mean a church annulment is automatically given by the church. As a result, it can be the situation where a person’s marriage might be declared null for the State but not for the Church. This demonstrates the fact that the annulments pronounced by the Maltese Courts or divorce in Malta will in no way give a person the right to remarry in Church. One cannot institute related cases both in the in Ecclesiastical Tribunal and before the Courts of Malta.