Contested and consensual divorce

Divorce in Malta can be agreed between the spouses or contested by one of them. The Civil Code does not give these two routes names, but the difference is real, and it shapes how long the process takes and what it involves.

Divorce by agreement

A divorce can be granted by decree where the spouses agree that their marriage should end. In that case you apply together, and the shorter living-apart period applies: at least six months out of the year before the proceedings began.

If you are not already separated, you will still go to mediation, whose task is to help you agree on the practical questions: the care and custody of your children, access, maintenance, who lives in the matrimonial home, and how your shared property is divided. If you reach agreement, the mediator sends the draft divorce agreement to the court, together with any comments from your advocates and from the children’s advocate if one has been appointed, so that the court can authorise it. The court must be satisfied that what you have agreed is fair and in the best interests of you and your children. The more you settle, the less the court has to decide.

Agreeing does not mean the court simply signs off. It must still be satisfied that the conditions for divorce are met, including that you, your spouse and your children are receiving adequate maintenance where it is due. Because the two of you may have different interests, we recommend that each spouse takes their own legal advice.

If you are already separated by a contract, its terms continue to apply after the divorce, except for the effects the law gives to divorce itself.

Contested divorce

A divorce is contested when one spouse applies and the other disagrees, either about the divorce itself or about what should follow from it.

• If you are already separated by a contract or a judgment, the spouse who applies can ask only for the marriage to be dissolved. The other spouse can contest by showing that the applicant has not paid maintenance that was due, and that granting the divorce would make it harder to obtain payment. If that is shown, the court will not grant the divorce.
• If you are not separated, the applicant can ask in the same case for everything that could be asked for in a separation case, and the other spouse can raise the defences that would be open in a separation case. The court can make temporary orders while the case is going on.
• Security for maintenance. If maintenance is due and has not been paid, or there are serious reasons for it, the court can order that payment be secured by an appropriate guarantee. The guarantee cannot exceed five years of maintenance.

Blame and its consequences

You do not have to prove fault to obtain a divorce. But if the court finds that one spouse was responsible for the breakdown of the marriage for reasons such as adultery, excesses or cruelty, or desertion, it can apply the rules that apply on separation. Depending on the case, these can include the loss of certain rights between the spouses, such as a share of assets built up mainly through the other spouse’s work, or the right to maintenance. The court has a discretion in how it applies these rules.

Which route is yours?

Often this is not clear at the start. It can depend on what your spouse says, and on how far apart you are on the children and on money. We will explain the options and what each is likely to involve for you. A contested divorce generally involves more hearings than an agreed one, and so usually takes longer and costs more, but we will not guess at your case before we know the facts.