Malta is the only EU country not to allow divorce – but for how much longer? Malta recently made the headlines after its citizens voted in a referendum to introduce divorce to the staunchly Catholic island. This week the Maltese Parliament began discussing the Divorce Bill in its second reading. It isn’t yet clear when the Bill could come into force. However discussions are expected to be finalised by 22 July 2011. Many MPs have yet to say how they will vote, but the Prime Minister of Malta has pledged that the divorce bill will be passed to reflect the referendum result.
The head of Stowe Family Law’s busy International Department, which specialises in cross-border divorce and expat cases, has an interest. He has been discussing the events in Malta with Lorraine Schembri Orland, one of Malta’s top family lawyers (and a member of the International Academy of Matrimonial Lawyers, to boot). Their conversation, copied below, raises some interesting points about the way forward in Malta, not least of which is the speed with which prospective divorce legislation is proceeding.
SFL: Were many people in Malta surprised by the result of the divorce referendum?
Lorraine Schembri Orland: Polls leading up to the referendum showed that the “Yes” vote would win. However the voter turnout was at 73%, which is far inferior to the voter turnout in a general election. Many stayed at home because of issues of “conscience”.
SFL: How have people responded to the result of the divorce referendum? Have you had many calls from prospective clients who are seeking to get divorced?
LSO: Yes. Clients have expressed interest both before, and obviously after the referendum result. The first reading has passed through Parliament but many MPs are stating they will not respect the results of the consultative referendum and will vote according to their conscience.
SFL: Previously, what were the options for unhappily married couples in Malta? Did they stay together? Was it considered socially acceptable to separate? Could Malta-based couples divorce overseas?
LSO: Maltese Law previously gave couples a choice between personal separation – amicable by contract, or judicial – and annulments, both civil and Church. A foreign divorce judgment would only have legal effect in Malta if one of the spouses was a national or domiciled in the country where the divorce was pronounced, so it was not easy for two Maltese to divorce abroad unless one of them changed their domicile. Married couples would not stay together and personal separations have been on the increase for several years.
SFL: Why, in your opinion, has the Irish Family Law Act been used as a starting point?
LSO: Well, I think it was the perception that Ireland is a Catholic country, like Malta. For example, Irish law was used as a model in domestic violence legislation. It seems strange to me that we do not look to countries with a civil law tradition based on the Code Napoléon.
A bit of background will explain matters. This Bill was a single Member’s Bill, introduced by the MP who holds the one vote in the Prime Minister’s Party that can topple the Government. So it was introduced against a political backdrop. There was no prior consultation, contrary to previous family law reforms, which were introduced amidst widely conducted information campaigns.
We are now faced with an important law, which will go to the core of family law in Malta, passed in a rush without consultation or contribution on substantive issues by the legal profession, constituted bodies and the public in general. It is also incomplete as the Bill stopped short of pension issues.
SFL: On what grounds will a court in Malta grant a divorce?
LSO: The Bill provides that divorce will be a “no fault divorce” and the parties must have been “living apart” for four out of the last five years. Also there must be proof that a reconciliation is not possible.
SFL: How many people in Malta are likely to be affected if and when the Divorce Bill becomes law?
LSO: No statistics are available. However if divorce requires a five-year de facto separation period, it may well cover all of those who are already in the process of separating.
SFL: That’s a potentially lengthy separation period. Does the Divorce Bill make it possible for people to apply to the court for interim maintenance or final settlements during that period? If not, how is the vulnerable party to be supported and protected?
LSO: I would suggest we wait until the Bill is enacted, when I will be in a better position to answer these questions. I don’t think that a divorce settlement will depart from a separation settlement, for the time being. On the contrary: we are used to inserting a clause in a separation agreement, which states that the agreement cannot be varied in the eventuality of a divorce .
SFL: Have any requirements been put into place to ensure that in Malta, divorcing couples are aware of alternative methods of dispute resolution, such as mediation and collaborative divorce?
LSO: Mediation in separation proceedings is compulsory in Malta. Mediation is also compulsory in proceedings concerning child custody and maintenance, so we do have a mediation culture already.
SFL: Do prenuptial agreements, signed in Malta or elsewhere, have any legal standing in Malta? If so, do you expect prenuptial agreements and postnuptial agreements to become increasingly popular?
LSO: Prenups and postnups are valid in Malta if drawn up by a Notary Public. A postnuptial deed will require prior court authorisation. The agreements are limited to a choice of regime and maintenance. Contracts published abroad will have to satisfy private international law rules for validity and recognition.
SFL: England has a reputation as “the divorce capital of the world”, because there is a perception that wives receive relatively generous financial settlements here. Do you think that Malta will become an attractive option for certain types of people who are looking to get divorced?
LSO: Maltese courts traditionally favour custody to the wife and maintenance for her as the carer of the children. However if a wife works, she would generally not receive maintenance. Her maintenance rights would be suspended until such time as she would be without employment.
As to financial settlements, a couple living in Malta would be subject to the rules of the community of acquests. If one spouse has substantial personal property derived from inheritance or gifts, the other party would not be entitled to a share of that property, independent of the number of years of the marriage. Malta is participating in the enhanced cooperation procedure within the EU and it will impact on the Maltese courts’ mindset. A spouse may also request the right to live in the matrimonial home, but this is not automatically granted.
SFL: What is the likely impact on Malta’s expat community? Do you expect to see many expat clients?
LSO: I already have a number of foreign clients. Malta’s accession to the EU already left this sort of impact on our legal scene. Until now, divorcing in Malta was not an option for foreigners living in Malta but yes, I expect it to become an option especially in view of EU jurisdictional rules. I also expect to see a surge in Maltese divorces and consequent downturn in civil annulments.
SFL: What financial orders or ancillary relief orders can a Maltese court make? For example, what about maintenance pending suit orders, property adjustment orders, pension sharing orders and financial compensation orders?
LSO: Maintenance orders pending suit are requested in every case, so these are not new. The courts will dissolve the property regime on a judgment being pronounced.
As to pension sharing orders, these are consequential on maintenance orders, but the big issue now is how pensions will be regulated in Malta upon divorce. The Bill has not reproduced the Irish provisions on pensions, but we have asked for specific provisions as such a matter cannot be left unregulated.
As to financial compensation, again this depends on the division of property. Maintenance can be converted to a lump sum payment or capital transfer upon separation, so I expect that this will be the case on divorce.
SFL: Who pays for divorce costs? Can one party be held liable for another party’s costs?
LSO: The party at fault bears costs in the Maltese courts. However divorce will be “no fault”, so I would expect that each party will bear his or her costs.
SFL: What does the future hold? Do you think that divorce is likely to become even easier in Malta, as time goes by? Will it lose its social stigma? What are your predictions?
LSO: I think that several years would have to pass before the grounds for divorce were touched. Couples are also cohabiting, and many people who have separated have declared they will not remarry. Going through a contentious separation makes people wary of making the same mistake! In this respect, I think Malta will reflect the mix found in neighbouring societies.
Importance is still given to the traditional marriage as the basis of a stable society. The lesson that has been learned is that people should only marry if they have a mature understanding of what marriage is all about and wish to commit to one another.
SFL: Thank you, Lorraine.
Lorraine Schembri Orland runs her own boutique firm, FSO Legal in Valletta, Malta. A specialist in matrimonial and family law before the courts of civil and criminal competence, her expertise includes cases with a significant international element, from child abduction, divorce and annulment, to succession and estate law.
The first female member of Malta’s Chamber of Advocates, and a recognised practitioner before the Maltese Tribunal on the nullity of Catholic Marriage, Lorraine speaks English, Italian and French.