The Minister for Justice and Home Affairs, Dr Carmelo Mifsud Bonnici, is in Brussels today to participate in the Council of Ministers responsible for Justice and Home Affairs of the EU Member States. This morning Ministers discussed a number of legislative items in the area of justice amongst which was the adoption of the proposed Regulation in the area of the applicable law to divorce and legal separation.

This is a measure falling under what is known as ‘enhanced cooperation,’ which is a situation in which a number of Member States wish to collaborate more closely amongst themselves on a particular subject. 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).

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.

Malta, on the other hand, has been assured that its courts will not be obliged to apply the divorce laws of other States and thus give divorce judgements. The other Member States participating in this measure have accepted the insertion of this assurance in Article 7a of the Regulation. 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. This Article therefore seeks to preserve the substantive laws of Member States, which cannot be affected by the Council Regulation.

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