Divorce is enshrined under Title IV of Chapter16 of the Laws of Malta.

While both divorce and separation are related to the breakdown of marriage, they have a fundamental disparity. Separation is a state where the couple remains married but lives separately according to the provisions of the contract of separation or judgement of the Civil Court (Family Section) (whichever applies).

On the contrary, divorce results in the total termination of the marriage. Consequently, the key difference between couples who are divorced and those who are separated is that divorced individuals are free to remarry, while separated individuals cannot, as they are still legally married, and Maltese Law forbids bigamy.

Divorce is regulated by articles 66A – 66N of Chapter 16 of the Laws of Malta. Divorce may be requested by either one of the spouses against the other, or jointly by both spouses. It is notrequired that the spouses be already separated by means of a contract or court judgement and this is highlighted under article 66A (1) of the aforementioned act.

Article 66B outlines specific criteria that need to be convincingly met for the court to approve a divorce. These criteria primarily include the absence of any reasonable chance for the spouses to reconcile and their separation, either de jure[1] or de facto. De facto separation occurs when the parties have actually lived apart for a specified period, whether consecutively or cumulatively, as detailed below:

  • On a demand made by both spouses, they must have been living apart for a period amounting to at least six months out of the preceding year; OR
  • On a demand made by one spouse, that they must have been living apart for a period amounting to at least a year out of the preceding two years.

When one spouse files for divorce against the other, they can also request the same measures allowed in separation cases at the same time. The opposing spouse is then able to present defenses against all the claims made. Nevertheless, if the spouses have previously been legally separated through a contract or a court decision, their divorce application can solely seek the termination of the marriage.

When a request for divorce is approved by the court, couples who are not already separated by a contract or court judgement shall be summoned to appear before a mediator to attempt reconciliation. In the event of an unsuccessful mediation, the next step would be to amicably conclude the divorce through a divorce agreement where terms such as the care and custody of minor children (where applicable), the residence in the matrimonial home, division of community of acquests among other things are agreed upon. In the event that the couple is unable to reach an agreement, then the dispute will be escalated to a legal case in the courts.

Another way to initiate divorce proceedings is during the process of separation. At any point before the case is adjourned for judgement, either party may request to change their plea from separation to divorce. However, the court must still assess if the parties meet the criteria set out in Article 66B of Chapter 16 of the Laws of Malta. Following this evaluation, the court will publicly announce its decision. If the conversion to divorce is granted, all previously declared witnesses and submitted documents from the separation proceedings will automatically be applicable to the new divorce proceedings. This transition allows both parties the opportunity to introduce additional documents or witnesses pertinent to the divorce claim without affecting their rights.

The Maltese Courts are authorized to preside over and decide on a divorce petition if, at the time the petition was filed, at least one of the spouses had their domicile in Malta or had been a habitual resident in Malta for at least one year directly before the divorce petition was submitted.

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

[1] De jure separation refers to a legal separation formalized through a contract or judgment.

Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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