While the subject of domestic violence arises on a plurality of occasions thereby extending its outreach to the public, somehow its struggling victims seem to remain at the mercy of their perpetrator out of the mere lack of knowledge of their remedies at law, or their overriding fear to avail of them as is their right.

While domestic violence may arise in a number of familiar settings each referred to as ‘family or domestic units’, including between persons who are or were in an informal relationship or between persons simply having a child in common, a common scenario which shall be the topic of today’s discussion is domestic violence between spouses who consequently reside in the same household – with or without descendants – where the victim is also seeking to obtain personal separation against the spouse qua offender.

As per common practice, any procedure of personal separation notwithstanding the circumstances at play is initiated by filing a letter in the Registry of the Family Court requesting the appointment of a mediator. The said letter must include the details of both parties, the date and place of marriage, and the details of the children, if any.

Assuming that both spouses are residing in the matrimonial home at the time the above-mentioned letter is lodged, a domestic violence victim is entitled to file a court application before the Family Court for the Judge overseeing the mediation to provide a provisional order (legally known as a pendente litem order) to decide whom of the spouses shall reside in the matrimonial home during the pendency of the action for personal separation. This application may also be lodged at a stage where the victim already has, prior to the institution of the application, left the matrimonial home in desperate seek of refuge.

In view of the urgent nature surrounding the application, the latter shall be appointed for hearing within four days, and, besides issuing a decree on who shall be allowed to reside in the matrimonal home, the court shall have discretion – before or after hearing the parties – to issue a protection order or a treatment order, if needed, against the perpetrator according to the provisions of the Criminal Code.

During the pendency of the personal separation proceedings, the victim may also lodge an application seeking a pendente litem order by the presiding Judge regarding who shall be entrusted with the custody of the children. Indeed, the Court may decide to limit or deny the offending party access to the children altogether, if there is sufficient proof that such access would put the children at risk.

The law also contains an ‘umbrella’ provision capable of producing similar, yet graver, effects to the one described above insofar as the custody of minors is concerned. Upon a demand of the victim brought concurrently with sufficient evidence of domestic violence, the other party – in this context being the perpetrator – may be declared unfit by the court to assume the custody of the minor children. This demand may be lodged not only during the cause for separation – with the intention of seeking a pendente litem order – but also following a judgment of separation or divorce. Furthermore, the parent declared unfit by the court to assume the custody of the minor may not do so automatically upon the death of the other parent, but shall seek the court’s authorisation for this purpose, which authorisation may or may not be granted at the Judge’s discretion.

In similar situations which however concern two unmarried parties, where evidence of domestic violence is produced in a suit – not for personal separation – but for access and/or the care and custody of minors, the court also has the discretion to issue a protection order or a treatment order in terms of the Criminal Code to protect the safety of the parties and/or the minors concerned.

Any person subject to acts of verbal, physical, sexual, or psychological domestic violence including insults or threats, assault, sexual harrassment, fear of violence, and others by a spouse or partner, are encouraged to come forward and press charges at the Gender Based & Domestic Violence Unit located in the Police General Headquarters in Floriana. Domestic violence victims may also seek refuge at victim shelters across the island.

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Chapter 16 of the Laws of Malta, hereinafter referred to as the Civil Code, regulates the choice of surnames for spouses upon entering marriage as well as the choice of surnames for any children which are to be born subsequent to the marriage. At present, following remarkable amendments which entered into force in 2020 by means of amendment act number LXV of 2020, article 4 (1) of the Civil Code now provides various options to both spouses who wish to depart from the so to say “traditional” practice of having one and the same surname for both spouses and children.

In order to illustrate such options in an easily comprehensible manner, let’s take an example of two spouses with the following surnames: Spouse A: Borg and Spouse B: Vella.

The first option available to Spouse A and Spouse B upon entering marriage is the choice of adopting either of their surnames for both of them; practically meaning that Spouse A and Spouse B may decide for both to go by either the surname Borg or otherwise by the surname Vella.

The second option which Spouse A and Spouse B might decide to adopt involves the joining of both their surnames in their own order of preference, which double-barrelled surname would be the surname of both spouses as well as that of any children born thereafter. Therefore, in our scenario, Spouse A and Spouse B may both adopt the surname Borg Vella, or otherwise Vella Borg.

When both spouses fail to agree on a common surname for both of them in accordance with the aforementioned options, the subsequent three choices are available to either one of the spouses.

Either of the spouses may decide to adopt the surname of the other spouse, after which that particular spouse may add his or her surname. Keeping with Spouse A and Spouse B as our examples, in this scenario, Spouse A may decide to retain the surname Borg, whilst Spouse B deciding to adopt a double-barrelled surname of Borg Vella. This can also work the other way around with Spouse A deciding on the latter surname option of Vella Borg, and Spouse B retaining the surname Vella.

Another option similar to the one in the afore involves one spouse retaining his/her own surname following which the surname of the other spouse may be added. In our example this would mean that whilst Spouse A retains the surname Borg, Spouse B decides to adopt the double-barrelled surname Vella Borg. This can also work the other way round, with Spouse B retaining the surname Vella, and Spouse A adopting a double barrelled surname Borg Vella.

The last available option is quite straight forward wherein both spouses retain their own surnames. In such an example Spouse A retaining the surname Borg and Spouse B retaining the surname Vella.

In all three of these scenarios, the spouses would hold different surnames from one another. Therefore, what will happen to the children born from this wed-lock? Which surname would they come to adopt?

In these circumstances, upon their marriage or union, the spouses would have to determine a family-name which would be used for the spouses’ children. Determining such a family name would have to be in line with either of the first two options delineated in article 4 (1), meaning that the spouses would have to choose either one of their surnames (prior to their marriage or union) to be the family-name, or otherwise to choose a double-barrelled surname, in whichever order they prefer, to be the surname to be adopted by any descendants. In our situation, Spouse A and Spouse B hold the following choices: either choosing the surname Borg or the surname Vella as the ‘family-name’  or otherwise the double-barrelled surnames Borg Vella or Vella Borg as the family-name.

One must also keep in mind that in either of all the available options discussed, the combination of the spouses’ surnames shall not result in a surname which is longer than the combination of four surnames and when the surname of any one or both of the spouses already has a combination of two or more surnames, the order of the surname of that spouse shall be retained, and the spouses shall not change such order and, or drop any part of their own surname.

The provisions of this article are not limitedly applicable to those spouses who marry or enter into union after the 29th of December 2020, but shall also be applicable to those spouses who married in Malta before such date provided that any changes that they might wish to make to their surnames are affected by the 29th of December 2025.

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A suit for personal separation is more often than not an ongoing battle. A battle driven by one’s strong desire of gaining more than their opposing spouse. Yet, whilst spouses focus their minds on this personal dispute, who is to ensure that the children’s rights are safeguarded? Who is to make sure that children do not get caught up in their parents’ feud? It is safe to say that such a paramount duty is an additional task left in the hands of the court.

In order to do this, the courts are guided by a fundamental principle which is very commonly referred to as the “best interests of the child principle”, which, in its very self-explanatory jargon delimits that the court is always to account for what is the most favourable for the children. Even though the law stays away from defining what constitutes the best interests of the child, noticeably due to the fact that the interests of no other child are the same, it is well-established that the court adopts a holistic approach, taking into consideration physical, social, intellectual, as well as moral interests.

The far-reaching power of the best interests principle extends also to grant the court the authority to revoke orders which it would have already given, provided that such a change will be beneficial for the children. This power is so fundamental that it has been provided for by the law through article 56 (4) and article 149 of the Civil Code.

In applying this principle in practice, the Court does not adopt a one-for-all approach but rather undertakes a case-by-case evaluation accounting for the children’s lifestyle, their wishes, and their interactions with their parents amongst other factors. It is easily understandable that the Court cannot do all this alone, but must be adequately assisted by professionals and experts. The expert or experts appointed would be engaged for their professional opinion and evaluation of the case at hand which would help the Court understand better the best interests of the children and reach a well-informed decision when pronouncing judgment.

Though this principle might appear difficult to apply, it has become one of the most ordinarily resorted to principles by the Maltese Family Courts, especially in cases related to care and custody. As a matter of fact, article 56 (1) of the Maltese Civil Code provides that “on separation being pronounced the Court shall also direct to which of the spouses’ custody of the children shall be entrusted, the paramount consideration being the welfare of the children.” In order to do this, the Court may be compelled to take some very tough decisions, which may also include divesting a spouse (or both) from their parental authority rights.

It must be noted that the Court does not take decisions lightly and only decides to exclude a parent from parental rights for reasons which are sufficiently grave. This statement is merited to the fact that children need the presence of both their parents in their lives, and as a result, more often than not, the care and custody of children is left granted to both parents.

Conclusively, it can be deduced that the Court at all times seeks the best interests of the child irrespective of the diverse allegations, true or false, made by the spouses against each other. Such allegations often serve nothing more than to distance from the truth and serve to render almost impossible the search of the Court for the truth. Therefore, it is the duty of the court to always look for the interests of the child in order to ensure that no child ends up serving as a weapon.

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The process of mediation most generally requires the parties to a dispute to sit around a common table together with an impartial third party with the intention of reaching an amicable settlement between them. Mediation was for quite a long time absent within the family law realm, however this all changed in 2003 through amendments occasioned in Maltese law.

Ever since 2003, prior to commencing separation or care and custody proceedings, either of the parties must file a letter at the Family Court Registry requesting the registrar to appoint a mediator in his or her case, which letter must clearly spell out the details of the parties along with the date and place of marriage (where applicable) and indicate whether any children were born out of the relationship or marriage.

Once a mediator is appointed and a date is set, he or she sets up an appointment with the parties and their legal representatives in one of the mediation rooms set at the Family Court Building, in order to discuss their pendencies. Right from the get go, the mediator addresses the parties and informs them that such a procedure is one on a without prejudice basis and cannot be used against them if the case proceeds to a court hearing. The mediation process is henceforth fully confidentional. The mediator also advises the parties that he or she may not be summoned to testify in court and reveal anything discussed in mediation.

The mediator initially asks the parties to declare whether there are any prospects for reconciliation between the couple. Even though most oft the parties are head set that they want to move forward with separation proceedings, the mediator is still compelled to ask this question to the parties in order to elicit their intentions. As well conceived, it takes two for a relationship to suceed. Thus, a willingness on the part of one party to reconciliate, but a negative reply on the part of the other would still call for the separation proceedings to continue.

At the next stage, the purpose of the mediation shifts towards reaching a settlement to the parties’ grieviances, all in all meaning that the parties start laying their cards on the table and exploring their agreements and addressing their disagreements. To examine such possibilities, the parties are granted a maximum of eight sessions. If the parties manage to reach an amicable settlement, their agreement terms are reflected in a formal contract, which contract is read and explained to them by the mediator and subsequently filed before a Judge for his or her approval. Once approval is granted, the parties appear before a notary of their choosing in order to formalise their agreement and give it the status of a public deed.

Whilst mediation proceedings are on going, any party to the proceedings may file court applications before the Family Court for the Judge overseeing the mediation to provide provisional orders (legally known as pendente litem orders) with regard to certain issues – most often relating to Maintenance and access rights. These applications are nothing close to a lawsuit. They are very often determined within the Judge’s chambers, and it is only very rarely that a hearing is granted.

What happens if upon the lapse of eight seesions the parties fail to reach an agreement? Or what if the parties are so estranged from one another that an agreement is impossible? In these two scenarios, the mediator would very often advise the Judge overseeing the mediation to close the mediation proceedings and to authorise the parties to proceed with a relative lawsuit in order for the court to litiguously deal with the dispute. Upon the closure of mediation proceedings, the parties are given a period of two months (or any other period which the court may determine) in order to file their lawsuits.

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Marriage is based upon a ‘pact’ entered into by the contracting parties; a distinction is to be drawn between this same ‘pact’ and the ‘relationship’ existing between the parties.

The former is the genesis of the latter. Both ‘pact’ and ‘relationship’ are correlated by a link of cause and effect. The traditional nomenclature appears therefore eloquent when distinguishing between matrimonium in fieri on the one hand and matrimonium in facto esse on the other. The latter refers to the marriage in its ‘being’, that is, the stable ‘relationship’ or reality being lived out. The former refers to the marriage in its ‘becoming’, that is, the initial constitutive moment when the relationship or reality is brought into ‘pact’. Such correlation has been explained in the following words: “[…] causa efficiens matrimonii est consensus […] expressus […]” ~ St. Thomas Aquinas.

Matrimonium in fieri is therefore the one and same inseparable reality of sacrament and marriage under the term foedus (covenant) and contractus (contract).

‘Covenant’ involves, in essence, personal commitment and excludes the idea of revocation; ‘foedus’ includes specific contractual obligations, which it, at the same time transcends.

As such, ‘covenant’ implies substantial change and adds significant elements to the term ‘contract’. The term ‘covenant’ adds a biblical connotation: the content of the alliance to which the spouses freely consent.

Of the essence to the covenant or contract is the exchange of consent, which is the efficient cause of marriage. Consent confirms a choice, a personal and non-transferable human act. Consent cannot but be actus voluntatis: a knowledgeable action (nihil volitum nisi praecognitum), free and voluntary, by virtue of which two subjects endowed with faith uti singuli intend to unite in communitate omnis vitae, determining a unity in the nature of the same contracting parties. As such, no human law can recognise a marriage as valid if such is vitiated by a substantial defect in consent and thereby rendered null under natural law.

Importantly, a particular choice is defined, and made to differ from all other choices by the object around which the same choice is centred. Spouses explicitly “[…] consent to marriage and implicitly to the mutual yielding of the right over the acts proper to marriage […]” ~ St. Thomas Aquinas.

As per the teachings of His Holiness Pope John Paul II, Marriage is a communion personarum, a common union of two persons (male and female), a permanent joining of two embodied persons who, retain their individuality and complementary qualities and establish a unity between themselves (una caro), which unity is marriage.

The permanent marriage bond is a moral entity formed by a mutual and irrevocably permanent commitment to seek the common good proper to marriage. By being a habit of love, this commitment sets the will to seek the good of another person; by being a habit of justice, this commitment sets the will to seek the same good due by reason of a contractual agreement.

The right to marriage, or ius connubii, constitutes a natural right of the human person; it comprises not only the right to contract marriage but also the right to choose one’s spouse freely. The capacity or ability to contract marriage similarly flows from the nature of the person and therefore from natural law. Such is not granted by human law, which can merely regulate it, even to the extent, in certain cases, of limiting or removing the ability of the person to exercise this right. As such marriage may only be limited for grave and just reasons and restrictive laws are to be interpreted in the strict sense.

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Adoption is defined by Watson in Triseliotis et al. (1997:2)77 as “a mean of meeting the developmental needs of a child by legally transferring ongoing parental responsibility from birth parents to adoptive parents, recognizing that in the process we have created a new kinship network that forever links these two families together through the child who is shared by them both.”

Whereas in Roman times, adult adoption was predominant and parents used to adopt in order to ensure a successor’s line, nowadays the institute of adoption is mostly perceived as a service to a child.

Inter-country adoption became more common after World War II where a lot of orphans were left abandoned due to the war, political turmoil, natural disaster and poverty. Legislation increased state responsibility to safeguard the best interest of the child – the child being the centre of the adoption procedure. In fact, article 20 and 21 of the 1989 United Nations Convention on the Rights of the Child identifies adoption as one of a range of options for the alternative care of children who find themselves unable to live with their birth families.

In the adoption process the role of the State is essentially that of forming a new family. Domestically, the institute of adoption is mainly regulated by Chapter 495 of the Laws of Malta entitled Adoption Administration Act. The provisions of this enactment may be classified under 4 main categories– those dealing with the appointment and powers of the adoption board, those revolving around the central authority, those regulating the accredited agencies and the provisions with respect to the board of appeal.

This eligibility to adopt a child and the requirements for adoption will be discussed in detail later on.

During 2018, there were 54 Maltese couples who adopted children from foreign countries. It must be pointed out that during the last six years 154 children were adopted. This figure includes the adoption of 25 Maltese children by Maltese adoptive parents.

How does the adoption process work? Primarily, the accredited agency receives and processes the application forms from persons wishing to adopt. Subsequently it will provide training to the applicants and then prepares a home study report on prospective adopters in order to assist the suitability of the applicants. Once the adoption has gone through and a child has joined a family, the Adoption Services continues to provide the necessary support to ensure the well-being of the child.

The best interest of the minor is of paramount important and supersedes the rights of third parties, this was discussed in an interesting case decided by Court of Appeal on the 29th May, 2015, ‘A et vs C et.’. The facts of the case are the following, A were the parents of B (who passed away tragically). Before his death, B had a relationship with C; from this relationship the minor D was born. Nonetheless mother (C) registered her child under ‘unknown father’ and consequently B was not recognised as his father. The parents of B filed legal proceedings before the Civil Court (Family Section) to declare their deceased son (B) as the natural Father however, during these proceedings, it transpired that C got married and her husband adopted the minor D. To this effect, the parents of B filed legal proceedings to challenge the adoption decree. Interestingly, the Court of Appeal held, “il-Qorti ma jidhriliex li jkun fl-interess tal-minuri li d-digriet tal-addozzjoni jithalla jigi attakkat. F’kazijiet ta’ din in-natura, huwa l-interess tal-minuri li hu suprem u jipprevali zgur fuq kwalunkwe interess li jistghu jivvantaw l-atturi. Il-minuri ghandu madwar tmien snin, u ghamel dan iz-zmien kollu jghix ma’ ommu; l-ahhar erba’ snin ghamilhom ma’ zewg ommu li trattah bhala ibnu. Ma jkunx fl-interess tal-minuri li jinqala’ minn dak l-ambjent jew tpoggi f’konflitt is-sitwazzjoni prezenti mar-realta`. It-tifel qed jitrabba f’familja b’omm u missier, u fis-sitwazzjoni tieghu u fl-eta` li jinsab fiha, ma jkunx flinteress tieghu li jiccahhad minn din l-istabbilita`. L-atturi jista’ jkollhom interess jistabbilixxu l-vera paternita` tal-minuri, pero` mhux l-istess jista’ jinghad biex tithassar l-addozzjoni tal-istess minuri.” The Court of Appeal rejected their pleas.
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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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Chapter 614 of the Laws of Malta, in other words: ‘the long-awaited Cohabitation Act’ was formally introduced into Maltese Law in June 2020, repealing Chapter 517 of the Laws of Malta and providing more rights and protection to couples seeking an alternative to marriage or civil unions.

Whereas previously there existed three variations which would establish cohabitation between the parties, being De Facto Cohabitation, Cohabitation by means of a unilateral declaration and cohabitation by means of a contract, the new law has done away with the first two models and completely excluded them from Maltese legislation.

Couples may be recognized as cohabitants if they continually and habitually reside together in the cohabitation home as a couple if they are not legally bound to other persons. Such couples become recognised as cohabitants upon entering into a public deed of cohabitation and a certificate of cohabitation shall be issued within twenty days from the enrolment of the public deed of cohabitation in the Public Registry.

Within the same public deed, the couple may declare the applicable law of their cohabitation being either the law of the state where the parties habitually reside at the time of conclusion of the public deed, the law of a state of nationality of either one of the parties at the time the public deed is concluded, or the law of the state under whose law the public deed of cohabitation was constituted.

The new law has made it very attractive for cohabiting couples to formalise their cohabitation by a public deed, and such mainly due to the list of rights such couples would become entitled to. Undeniably, cohabitants are regarded to have the same rights granted to a person who is married or in a civil union with regard to rights related to family and labour, including rights related to leave and the right to take all decisions relating to the medical care of the other cohabitant. Amongst others, cohabitants shall also have the right to a widows pension, to be entitled to non-contributory social assistance, to apply for a retirement pension, to have the right to unemployment benefit, children’s allowance.

For a couple to start the process of entering into a public deed of cohabitation, they are to provide the notary with a ‘free status certificate’, which must be issued by the Director of the Public Registry of Malta/Gozo not more than 90 days prior to the publication of the public deed of cohabitation.

The cohabitation home does not necessarily have to belong to both parties; it may belong to either one of them, to neither of them or to both- such is completely up to the couple to decide, with a iuris tantum presumption that cohabitants have the duty to pay all utilities related to the cohabitation home in equal shares among themselves for the period they reside in it, irrespective of whether the accounts of the utilities are addressed to one cohabitant only. Whereas the community of acquests, being limited to assets related to the cohabitation home under the Cohabitation Act, is not automatic to the formalization of the cohabitation and it is up to the couple to declare whether they would like to ‘opt-in’ or otherwise before the notary.

Changes to the cohabitants’ agreement and relationship are also regulated by the Cohabitation Act, and the parties may at any time, correct and/or amend the deed of cohabitation by means of a subsequent public deed with the authorisation of the Court.

While dissolution of the cohabitation may occur either by mutual consent or unilaterally by one of the cohabitant’s application before the Court, and such without the necessity to impute the other party any fault leading to the request for dissolution.

Dissolution of the cohabitation relationship will only be recognised through a court’s decree whereby both parties agree on the terms of dissolution or through sentencing if the parties do not agree. Upon such, the Registrar of Courts shall notify the dissolution to the Director of Public Registry so that it will be registered within the Public Registry.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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