News • November 30 2003

Mediators will be appointed for all separating couples

Government moves in to support marriage crisis

Julian Manduca
The government is planning to set up a comprehensive structure to assist families that are in the process of separating, MaltaToday can reveal.
The plan aims not only to help those wanting to separate, but also separated couples that wish to change the terms and conditions of their separation; families that have children born out of wedlock and un-married families with children.
The plans have been criticised by Labour lawyers Anglu Farrugia, Anna Mallia and Reno Borg (see page 8), but Parliamentary Secretary Dr Carmelo Mifsud Bonnici stands by his government’s decision.
The idea behind the changes to family law is to ensure that all parties in a conflict are assisted, made aware of their rights and achieve an acceptable agreement given the circumstances of their case.
In the last days of this year the government is expected to change the legal notice related to families so that certain conflicts will be heard in the new family court. The court will deal with conflicts that arise in separation and children born out of wedlock.
Dr Mifsud Bonnici, who used to deal with separation cases as a lawyer, told MaltaToday that there are now about 30 people trained and qualified to assist in family related conflicts.
Of these, four will be chosen by government to sit on a list of appointed mediators. Parties to a conflict will also have the opportunity to choose their own mediator, from a list of that will have to be approved by government, but in that case they will foot the bill. The state appointed mediators will take it in turns to assist those going through conflict. "They will try to reconcile couples that intend separating, but one of the primary aims will be to ensure that all of the parties are made aware of all their rights and are assisted to achieve an acceptable deal."
The period of consultation and attempts to reconcile with the mediator is expected to be of three months, but that time limit may be extended, depending on the circumstances.
All consultation with the mediators will be carried out in the strictest of confidence, and mediators will not only be sworn to secrecy, but will be barred from giving evidence in court. "That way a relationship of trust can be built up," Mifsud Bonnici said.
One of the prime aims of the mediator will be to ensure that children and minors also get a fair deal, and the mediators training prepares them to deal with all the complexities involved.
Lawyers will also be able to assist their clients from the first instance and their work will compliment that of the mediators.
The amendments are not being presented as a new law, as this will reduce flexibility. It is the intention of the ministry to review the process six months down the line and it is much easier to change a legal notice than a law.

Labour leaning lawyers Anna Mallia and Reno Borg as well as shadow minister Anglu Farrugia all took the government’s plans to task. Both said the planned process would complicate and lengthen separation proceedings.
While the mediator may be set on reconciling a couple, Mallia noted, the process might compromise the parties chances in court. She questioned who, wanting to separate, would be prepared to tell the truth to the mediator if they knew that the evidence could be used in court against them. Admitting to an adulterous affair in front of the mediator, for example, even if they are sworn to secrecy, would work against one in court.
Mallia questioned whether one of the parties might abuse in a situation where reconciliation is being attempted, by not paying maintenance to spouse and children.
She also pointed out that in many separation cases it was the wife that was short changed because she was often not in a position to know the true and full earnings or assets of her husband. Mallia said a mediator would not be able to establish what was earned or owned, like a court of law could, and therefore it would not be possible for the mediator to ensure a fair settlement.
Dr Anna Mallia worries that in the three months the mediator attempts to bring the parties to a just solution, one or more of the parties could hide away money and assets. She also suggests that during the same period of reconciliation, one or more of the parties could start court proceedings including garnishee orders over assets including property, and asks how this would make sense when reconciliation is being attempted.
Mallia said if the government really had the interests of the family at heart it would not be trying to intervene when it would appear to be too late and called for a reform of the system of justice for minors and children. She also called on the government to publish its plans for the changes to family law so that they could be discussed by all interested parties.
Reno Borg worries the complications of the proposed changes will further discourage people from marrying, or encourage them to separate without legal proceedings. Borg called for the government to create a culture in favour of the family, saying that many couples spend too much time and money concentrating on their homes and do not get to know each other properly. Borg said the separation process should not change with the exception that if a judge saw a chance of reconciliation, the couple should be asked to consult an adviser or counsellor and postpone the court case for a few weeks pending reconciliation efforts.
Labour Shadow Minister for Justice Anglu Farrugia told MaltaToday: "The Opposition is still without any draft or clear consultations about the proposed legal notice on the family court or any amendments to the family law.
"The only consultation if you can call it so, was a five minute briefing the Parliamentary Secretary for Justice Dr Carmelo Mifsud Bonnici gave me early this week in parliament. He informed me of the proposals and did not wait for my reaction as I asked him for the draft legal notice which, according to him, is still being drafted at the AG’s offices."
"It is interesting to note that any person who wants to separate will be able to do so by simply writing a letter to a mediator and without having any assistance whatsoever from a lawyer! This already sounds ridiculous. As the changes are planned a party to a conflict wanting to freeze the other party’s assets will not have the court decree to do so.”
Farrugia has been left in the dark about the proposals: "I can only comment on what I heard and from the reactions of fellow lawyers and the Camera Degli Avvocati, which organised a extraordinary meeting for its members on this matter earlier this month, which I also attended.
"There seem to be a very strong reaction against the proposals. The concept of mediators and conciliators is good, but when the couple seeks their help because they want to save their marriage, not when both have had the decision to separate for years! This is absurd."
Farrugia sees the proposals as increasing the costs for couples wanting separations and also makes a strong accusation: "And who are the mediators and the people involved: blue eyes boys of the Nationalist Party, or the very, very blue those who worked hard in the election campaign and the referenda campaign with the party now in government?
"The government should let the courts take the necessary steps to protect separating couples and children and not involve agencies and other bodies who may be called by the courts but who should not be left alone doing this job."
"The Labour Party way back in 1996-1998 had already had its report on the reform of the family court and since then we have just had bla, bla, bla, and promises and what’s not, and now the imposition of new regulations without proper consultation."