Divorce changes will give Malta more liberal regime

Malta’s divorce legislation is set to become one of the more liberal in Europe if proposed changes come into force, a comparative analysis shows.

As things stand today, a couple can only seek a divorce after living apart for four years, irrespective if this is a legal separation or simply a physical separation (de facto).

Government is now proposing a drastic reduction in the waiting period depending on the couple’s circumstances.

Legal amendments put forward last week will eliminate the waiting time altogether for those couples that are legally separated, irrespective if the request for divorce is by mutual consent or requested by only one of the parties.

In those cases where there is no legal separation, the couple would have had to be living apart for six months in the previous year if both parties want a divorce.

If the divorce is being requested by only one party, the couple would have had to be living apart for at least a year in the previous two years.

The changes will eliminate the four-year wait that was introduced as a condition when divorce became legal in 2011. The law at the time followed the Irish divorce model that also had a four-year waiting period.

The Irish law was amended last year, reducing the wait for a divorce to two years across the board.

If the proposed changes become law, Malta will have one of the most liberal divorce regimes in Europe.

The most liberal regime is that in the Netherlands, where no waiting period exists, irrespective of the couple’s circumstances and irrespective of whether the request is being done jointly or only by one of the parties.

In France, legally separated couples can seek an immediate divorce without a waiting period, which is similar to the Maltese government’s proposal. However, the French law differs in those cases where couples are not legally separated but only living apart – in these instances a two-year period is required before a divorce can be obtained.

Belgium has a similar regime to that proposed by the Maltese government in instances where the couple are not legally separated – six months and one year periods of living apart if the request for divorce is mutual and unilateral respectively.

In those cases where the couple are already legally separated, the Belgian law requires no waiting period if the divorce is by mutual consent – similar to the government proposal – but mandates a six-month wait if only one of the parties wants a divorce.

Germany has a one-year waiting period for divorce by mutual consent, irrespective of whether the couple are legally separated or not, and a three-year wait if only one of the parties wants a divorce, irrespective of whether the separation is legal or simply physical.

The Bill proposing the changes was introduced in parliament last Wednesday by Parliamentary Secretary Rosianne Cutajar and subsequently published in the Government Gazette.

The government is also proposing removing the provision introduced in 2011 requiring any divorce changes to be sanctioned through a referendum.

Divorce campaigner Jeffrey Pullicino Orlando, who had started the ball rolling with a private members’ bill to introduce divorce back in 2010, has expressed doubts on reducing the four-year period and circumventing the referendum option.

The waiting time was a compromise to win over the support of conservative voters.

The Cana Movement, a church organisation that organises marriage preparation courses, has disagreed with the changes.

The movement’s president, Arthur Galea Salomone said reducing the four-year obligatory waiting period for divorce will affect the permanence of relationships.

But Cutajar has argued that almost a decade after divorce was introduced, the time is now ripe to make changes that reflect people’s needs today.

Prime Minister Robert Abela has argued that the four-year wait to obtain a divorce has caused unnecessary stress and pain to couples.

Waiting period before a couple can seek a divorce