Divorce in Malta

The provisions relating to personal separation and divorce in Chapter 16 of the Laws of Malta[1] were recently amended through Act XXV of 2021, (The “ Act”)

Prior to the amendments which were introduced by the Act, the law required a couple to be married for at least 4 years before they could request a divorce based on the irretrievable breakdown of the marriage. In practice, this limitation was not always strictly enforced. However, with the amendment of article 40 of the Civil Code, the four-year waiting period has now been eliminated. As a result, a party can now apply for personal separation at any time following the marriage.

Another major change brought about by the Act focuses on sub-paragraphs (a) and (b) of Article 66B of the Civil Code, which essentially outlines the conditions necessary for the attainment of divorce. Before the amendments, a party could only file for divorce if they could demonstrate that the couple had not lived together as a married couple for at least 4 years within the 5 years preceding the application or that they had been separated either legally or de facto, for at least 4 years prior to the divorce application. The recent amendments have eliminated this 4-year requirement and introduced 2 new alternative time periods.

When spouses jointly request a separation, they must have lived apart for a total of at least 6 months within the previous year as of the date the proceedings begin. If one spouse files for separation against the other, they must have lived apart for at least 1 year preceding the start of the divorce proceedings.

Furthermore, when a divorce application is submitted, whether jointly by both parties or by one party alone, following a court judgement of a separation or the publication of a deed of separation, no waiting period is now required. This therefore means that a divorce application can be filed immediately after the court pronounces the separation or the separation is finalized through a public deed.

The amendments have essentially retained two key requirements. For a divorce application to be granted, regardless of whether the parties are separated or not, or whether the application is filed jointly or individually, the law mandates that the court can only grant a divorce if:

1. It is demonstrated that there is no reasonable prospect of reconciliation between the parties; and
2. The parties along with any children are receiving maintenance from the obligated party if such maintenance is due. The spouse entitled to maintenance may choose to waive their right to it.

Civil Annulment of Marriage in Malta

Through the process of annulment, the Family Court assesses whether a marriage is legally valid. The court reviews the circumstances at the time the marriage was contracted, and if it determines that one or more essential elements required to establish a marriage are missing, it will proceed to declare the marriage null. Furthermore, if the court finds that there was a ‘defect’ in the parties’ intention regarding their marital responsibilities when the marriage was originally contracted, it is likely to proceed to declare the marriage as null and void.

The following are the grounds upon which the court may grant an annulment according to article 19 et seq of the Marriage Act[2]:

1. Previous Marriage: A person who is already married cannot enter into a new marriage unless the previous has been dissolved through annulment or divorce. If a person who is already married, enters into another marries he will be guilty of the offence of Bigamy under Article 196 of Chapter 9 of the laws of Malta which upon conviction is a crime liable to imprisonment for a term from 13 months to 4 years.
2. Freedom to Marry: A marriage is considered null if one or both spouses were forced into it. This includes cases where consent was obtained through physical coercion, psychological threats or induced fear or similar violence.
3. Fraud regarding a significant quality: If a spouse conceals information that by its nature would seriously disrupt the marital life, the marriage may be annulled. This could be the hiding of a serious illness, psychological issues or a previous marriage as such information is expected to be shared during the marriage.
4. Capacity to Understand Matrimonial Life: If one or both parties lacked a proper understanding of the essential duties of marriage, this could be grounds for annulment. The law refers to a "serious defect of discretion of judgment on matrimonial life, or on its essential rights and duties." For example, rushing into marriage to legitimize an unwanted pregnancy might lead to an annulment if it is shown that the parties did not fully comprehend the commitments they were making.
5. Serious Psychological Anomaly: A marriage may be annulled if one party suffers from a serious psychological condition that makes it impossible to fulfill the essential obligations of marriage. The anomaly must significantly impair the person's ability to live within the marriage, rather than just making life difficult.
6. Impotency: If one party is incapable of sexual relations, either with their spouse or anyone else, and this condition existed before the marriage, it could be grounds for annulment. The impotence need not be permanent, but there must be evidence that it was present before the marriage.
7.  Simulation: A marriage is void if it was entered into with the intention of achieving some goal other than the marriage itself. This can be total, where one party intends to exclude all marital obligations, or partial, where they intend to exclude certain obligations.
8. Conditional Consent: If marriage consent was given based on a condition that contradicts marital obligations, the marriage may be annulled. For instance, if consent was given on the condition that the marriage would not result in children, which contradicts the obligation to bear children in marriage, it could be annulled.
9. Lack of Sufficient Mental Capacity: Regardless of whether a person is legally interdicted, if they do not have sufficient mental capacity at the time of marriage, it cannot be said that they freely entered into the union. This mental defect can be either temporary or permanent.
10. Refusal to Consummate the Marriage: A valid marriage may be annulled if one spouse refuses to consummate the marriage, which refers to the first act of sexual intercourse after the marriage. If one party is unable or unwilling to consummate the marriage, this provides grounds for annulment.

For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella.

[1] The Civil Code.

[2] Chapter 255, Laws of Malta.