Within the realm of marital breakdown, we frequently encounter legal terms that are sometimes mistakenly used interchangeably — separation, annulment and divorce. Yet, have we ever paused to ask: what is the actual difference between them? Do they all terminate marriage? Do they produce different legal consequences?

Divorce became part of Maltese law through the enactment of Act XIV of 2011. However, the debate surrounding its introduction did not begin in 2010. As early as 1996, Dr Joseph Brincat had submitted a Private Member’s Bill proposing the introduction of divorce legislation, though it never managed to make it to parliamentary debate. In the years that followed, the government of the day established a Commission for the Future of the Family. Among the proposals considered was the introduction of divorce by means of a free vote in Parliament. Nevertheless, after a subsequent change in government, the proposed Bill was never formally tabled. Fourteen years later, in July 2010, Hon. Dr Jeffrey Pullicino Orlando tabled another Private Member’s Bill, once again placing the question of divorce at the centre of public and political debate. It was this initial motion that effectively triggered the legislative process which ultimately led to the enactment of Act XIV of 2011. 

Through this Act, amendments were introduced to the Civil Code, formally incorporating divorce into Maltese law. By virtue of article 66B of the Civil code, provides a list of requirements which ought to be satisfied in order for divorce to be prononuced. The law provides for different requirements depending on whether the application for divorce is made jointly by the two spouses or by one of them against the other spouse.

The effect of Divorce is that the marriage stops at the time the court pronounce the dissolution of the marriage. Hence, the parties no longer owe any duty of fidelity toeach other. The effect of divorce is that the parties are no longer married in the eyes of Maltese law, hence, they can have the opportunity to re-marry without committing the offence of bigamy.

On the other hand, the effect of Separation relates only with the duty of the spouses to cohabit together. As per Article 35 of the Civil Code once personal separation is pronounced by a judgment, or authorised by a decree, of the competent civil court, the obligation of cohabitation of the spouses shall cease for all civil effects. However, an important distinction between Divorce and separation is that although in the case of divorce the parties can re-marry again since in the eyes of the law the marriage ceased to exist, in the case of separation the parties are still married and hence that marriage still subsits. Thus, the conseuqence of such is that they cannot re-marry, and they still owe the duty of fidelity to each other.

The significance attributed to safeguarding the marital bond is further reflected in the consistent position adopted by the Courts, which emphasise that separation is intended to  stop the duty of cohabitation between spouses, without bringing the marriage itself to an end.

A further significant distinction lies in the legal basis upon which each remedy may be sought. In the case of divorce, the law does not confine the application to specific fault-based grounds. The notion of no-fault divorce rests on the principle that a divorce judgment is not granted on the subjective assessment of which spouse is to blame. Instead, it is founded on the objective reality that the marriage has irretrievably and irrevocably broken down. This was highlighted as one of the fundamental principles underpinning the proposed Divorce legislation back in 2010, reflecting the approach adopted in the legal framework that served as a model for Malta’s divorce legislation namely, Irish divorce law. By contrast, a request for separation must be founded exclusively on the particular grounds expressly provided for by law.

Another legal mechanism through which a person may cease to be bound by marriage is the institution of annulment. Unlike divorce which terminates a valid marriage from the moment the decree is pronounced annulment signifies that the marriage was null ab initio, that is, invalid from the outset.

This is premised on the existence of a defect affecting the consent given by one or both parties. Since valid consent is the very element that brings a marriage into existence, any fundamental flaw in that consent renders the marriage void. In such circumstances, the law considers that the parties were never validly married, as the essential act giving rise to the marital bond was itself defective.

A marriage may be annulled from both a canonical law perspective and a civil law perspective. Both the 1983 Code of Canon Law and the Marriage act (Chapter 255 of the Laws of Malta) provide an exhaustive list of the grounds upon which a marriage may be declared null.

Author: Gabriel Sciberras