Updated: Malta receives assurance that its courts will not be obliged to apply divorce laws of other Member States

Updated with minister's statement 3:57pm.

The Minister for Justice and Home Affairs, Carmelo Mifsud Bonnici, said that Malta’s courts will not be obliged to apply the divorce laws of other States and give divorce judgements, after 14 EU member states - Malta included - agree to follow clear rules on how to seek divorce or legal separation in cases where 'international' couples' marriages break down.

The new rules will apply to all participating member states as of mid-2012. The countries are Spain, Italy, Hungary, Luxembourg, Austria, Romania, Slovenia, Bulgaria, France, Germany, Belgium, Latvia, Malta and Portugal.

"Article 7a specifically provides that the courts of a Member State whose law does not provide for divorce are not obliged to pronounce a divorce by virtue of the application of this Regulation and therefore by applying a foreign law in Maltese courts," Mifsud Bonnici said.

The new rules respect the family law traditions of the participating member states. For example where the law of a member state does not provide for divorce, like Malta at present, or does not recognise the marriage in question (e.g. in the case of same sex marriages), the court of that member state is not obliged to pronounce a divorce or a legal separation.

Other EU member states which are not yet ready but wish to join this pioneer group at a later stage will be able to do so.

The agreement constitutes the implementation of the first enhanced cooperation in the history of the EU. The new rules provide for a comprehensive legal framework in matrimonial matters ensuring legal certainty and predictability. If the spouses agree, they can choose to a certain extent the law applicable to their divorce or legal separation. The proposal, however, does not cover the consequences of a divorce or legal separation such as property issues, maintenance obligations, parental responsibility or the name of the spouses. Also excluded are preliminary questions within the context of divorce such as the validity of a marriage.

"Malta decided to participate in this measure because participation will facilitate the possibility for Maltese courts to apply the laws of other States relating to legal separation in such a manner that non-Maltese couples living in Malta and who wish to obtain a legal separation from Maltese courts, would be able to ask the Maltese courts to apply the law of their choice, which would be a law to which they would have close links as set out in the Regulation," Mifsud Bonnci said.

"In the same manner, Maltese nationals living in another Member State that is participating in the enhanced cooperation would be able to apply for legal separation in that State and ask the courts of that State to apply Maltese law."

There are approximately 122 million marriages in the EU, about 16 million (13%) are assumed to be international. For many of them, the regulation will bring a number of advantages: it allows international couples in the participating member states to know in advance which law will apply to their divorce; it improves legal certainty, predictability and flexibility for citizens; it protects weaker partners during divorce disputes and prevents the so-called "rush to court", i.e. situations where one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests; and it lessens the burden on children in international divorce disputes.

Four options if spouses agree

If the spouses agree, they can choose one of the following laws applicable to their divorce or legal separation: (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded, or; (b) the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time the agreement is concluded, or; (c) the law of the State of nationality of either spouse at the time the agreement is concluded, or (d) the law of the forum, i.e. the law of the state where the court is seized.

'Cascade system' if spouses disagree

If the spouses do not agree on one of these four options, the following 'cascade system' will designate the law of the state applicable to their divorce or legal separation:

(a) where the spouses are habitually resident at the time the court is seized; or, failing that,

(b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that state at the time the court is seized; or, failing that,

(c) of which both spouses are nationals at the time the court is seized; or, failing that,

(d) where the court is seized.