Update: divorce

Following a historic referendum on 28 May 2011 when the Maltese electorate voted to legalise divorce in Malta, there are now only two other countries in the world where it is not permitt ed: the Philippines and the Vatican. The last country to legalise divorce before that was Chile, in 2004.

Historically, apart from a short period where Malta fell under Napoleonic rule for two years, divorce has not been permitt ed on the island.

Banning divorce is something that the Maltese chose to write into their constitution in the 1960s. At this point divorce was also illegal in Italy, Portugal, Spain and the Republic of Ireland. These countries legalised divorce between 1971 and 1995.

Introducing divorce was first considered in the 1970s when the Labour government which was led by Dom Mintoff brought in Civil Marriage in 1975. Divorce was not introduced due to the large Catholic population's refusal to accept it.

Labour came to power again in 1996, when the divorce issue was again discussed but the government collapsed before any decision making could be implemented.

A poll took place in 2010 with the Maltesepopulation split on the issue of divorce. More people were against than for the introduction of divorce. The island's nation has a population of 410,000. Some 95 per cent of Malta calls itself Roman Catholic which as a faith does not permit divorce but does allow annulment and legal separation.

From referendum to new law

The referendum which led to the introduction of divorce in Maltese law eventually to place in May (see question in box below). According to The Times of Malta there was a 72 per cent turnout, and the Malta Electoral Commission results showed that 52.67 per cent of the 230,518 valid votes cast were in favour of divorce.

Parliament will now work towards introducing a law so that it will become legal to dissolve a marriage on the island.

A second bill reading took place in July 2011 and discussions have now finished. The law was passed by 52 votes to 11.

This was a significant result as the majority of the law in Malta is generally passed by a single vote margin. The new law was signed by President George Abela on 29 July and will take effect from October 2011.

No poll has been carried out yet for the number of people in Malta who would obtain a divorce when there is a change in the law. However with couples who have already been separated for at least four years over a five-year period it could already potentially include these people. As can be seen from the statistics below, based on the number of annulments, legal separations and oversea divorces which regularly take place there is likely to be no shortage of applicants.

According to the referendum, divorce will only be permited if:

(a) the marriage is irreparable;

(b) the couple have been separated for four of the last five years;

(c) the divorce is a 'no fault divorce';

(d) maintenance has been agreed;

(e) childcare has been agreed.

The law is based on a similar Irish proposal from 1995 which saw divorce being introduced in Ireland.

In the Maltese courts the party at fault bears the costs. However with divorce being proposed to be 'no fault' it is likely that each party would have to bear their own costs.

Current divorce options

Currently, legal separation takes place through the courts or the couple could seek a church or state annulment. This is a difficult way to get divorced as it can take up to nine years. Over the last five years there have been 690 annulments by the Church and the state.

Alternatively people could forum shop abroad and get divorced which would then be recognised in Malta. People are then free to get married again.

However, to get divorced abroad one of the married couple would need to be a national or domiciled in the country where the marriage is dissolved. To be domiciled abroad this would take into account where they were born and grew up, where they are currently residing and their future plans. They would also need to have sufficient funds available to get divorced abroad. Currently, if they don't have sufficient disposable income some people find this unjust and unacceptable which has promoted a call for change in the divorce law in Malta.

Statistics from the Maltese Public Registry show that between 2007 and 2009 that there were 102 cases where divorces took place abroad. Over the last 30 years 785 couples have divorced this way.

Family mediation in Malta

If the couple want a legal separation, mediation must be att empted which is provided free by the state. During 2006'“08 there were 3,500 legal separation ormediation applications made.

Family mediation principles in Malta:

• There should be screening for the suitability of mediation.
• Informed consent.
• Voluntary participation.
• Aiding the parents to come to an agreement that takes into consideration the welfare of the child.
• Being neutral.
• Fairness.
• Use of language which the parties feel comfortable with.
• Confidentiality.
• Impartiality.
• Informed decision making and appropriate access to legal advice.

The children of the couple can also see the mediator to be involved in the separation process if this is what the parents want.

In 2004 a court study carried out on the family mediation cases revealed that 65 mediation cases were assessed between January and April. Only ten of the cases were unsuccessful. The main reasons being that either the parties did not engage in the mediation process, or needed to be signposted to other services such as counseling before mediation could be considered.

EU Cross Border Directive agreement

In 2010, 14 member states agreed to simplify divorce for couples who were of diff erent nationalities. This has now been approved by the European Union governments.

Couples from these EU member states can now choose which country's law will be used for their divorce which will help to minimise costs incurred by the parties and the length of the disputes through the courts. Malta is one of the 14 member states. The UK is not one of the 14 member states. It is encouraging that the Maltese government wants to take part in the new mechanism.