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Jurisdiction for Divorce in Malta and Habitual Residence

Valletta Legal has recently been involved in proceedings where the Family Court was asked to address the question of jurisdiction of the Maltese Courts in personal separation and divorce proceedings where the defendant was no longer present in Malta.

The parties involved in this case had contracted marriage outside Malta. However, in January 2016, they chose to settle in Malta together with their children. Prior to the filing of proceedings, the defendant left the country, abandoning the matrimonial home whilst the plaintiff remained in Malta. Plaintiff instituted mediation proceedings in July 2016.

Mediation proceedings are mandatory where one or both spouses is seeking a separation and, in certain cases, is also mandatory in case of a divorce. If the spouse is seeking separation, then the mediation may, in isolated cases, lead to a reconciliation, failing which the role of the mediator is to try to facilitate a consensual separation between the spouses which is then reflected in a public deed which requires court authorisation before signing. Should no consensual separation be reached, then mediation proceedings are closed and either spouse would then be authorised to institute a lawsuit before the Family Court requesting a personal separation and a division of joint assets. Where the spouses have common children, the Court will also determine the care and custody and maintenance of the children.In this case, the Court referred to Article 742 of Chapter 12 of the Laws of Malta, dealing with persons subject to jurisdiction of the Civil Courts of Malta. Amongst others, Article 742(1)(g) provides that: Save as otherwise expressly provided by law, the civil courts of Malta shall have jurisdiction to try and determine all actions, without any distinction or privilege, concerning the persons hereinafter mentioned: (g) any person who expressly or tacitly, voluntarily submits or has agreed to submit to the jurisdiction of the court.

Furthermore, the Court also referred to Article 66N of Chapter 16 of the Laws of Malta, dealing with the jurisdiction of the Court regarding divorce. This article provides that: (1) Notwithstanding the provisions of any other law, the courts of civil jurisdiction shall have jurisdiction to hear and determine a demand for divorce only if at least one of the following requirements is satisfied: (a) at least one of the spouses was domiciled in Malta on the date of the filing of the demand for divorce before the competent civil court;(b) at least one of the spouses was ordinarily resident in Malta for a period of one year immediately preceding the filing of the demand for divorce.

In its deliberations, the Court noted the history of mediation proceedings in Malta between the parties and the fact that it was the Maltese Court who was first seized with separation proceedings before the other spouse instituted proceedings in another jurisdiction. It concluded that the defendant had submitted to the Maltese Courts’ jurisdiction under Article 742(1)(g) due to her involvement in the mediation proceedings and her engagement of a Maltese lawyer. The Court quoted previous jurisprudence where it was stated that mediation proceedings are an integral part of separation proceedings instituted before the courts of Malta.
Since the proceedings were converted into divorce proceedings under Article 66F of the Civil Code, Article 66N also conferred jurisdiction to the Maltese Courts. Crucial evidence, including the plaintiff’s residence documentation, supported his claim of habitual residence in Malta. Consequently, the Court declared that it had the necessary jurisdiction to determine the lawsuit.