The main problem mediators face when speaking to couples who turn to the Family Court to bring their marriage to an end is a lack of communication. Thanks to the mediation process, a good number of couples facing marriage problems opt to give their marriage another go to try and make it work, rather than separating immediately and leading separate lives.

Mediation is an important and effective tool that is being used very intelligently by people, parliamentary secretary Carmelo Mifsud Bonnici said. He said this process, which now became mandatory before couples continue with their separation proceedings, was proving to be effective in bringing both sides around a table to discuss their problems.

Although the process has improved considerably, there is still a lot that could be done, he admitted. He said he would like to see more marriage counsellors at the Family Court, assisting couples who are finding it difficult to cope with their problems. He said some married couples do not even know what marriage is all about and this is why the problems they face lead them to institute separation proceedings.

“There is certainly more room for improvement but there has been a drastic change. Until some time ago, separations were just any other court case. Now these proceedings are being tackled better and in a more serene manner. Couples are now being given the time to reconcile. On average, couples spend between four and six hours in mediation in an attempt to solve the problem,” he said.

Dr Mifsud Bonnici said that more than cases involving domestic violence, adultery and other problems, lack of communication is the main reason for the breaking down of marriages. “People need to build a strong relationship before getting married,” he said.

Turning to statistics, he said 11.3 per cent of couples decided to give their marriage another go after mediation in 2004. This figure rose to 23 per cent last year. The number of couples who decided to go ahead with their separation after the mediation process remained constant at 29 per cent in 2004 and 2005, he added.

Dr Mifsud Bonnici said that in 2004, there were 56 couples who reconciled after the mediation process while in 2005, this figure climbed to 196 couples. In 2004, 145 couples decided to draw up a separation contract without having to go before a judge. In 2005, the number of couples who drew up a contract rose to 223.

In 2004, the Family Court dealt with and closed 983 cases while in 2005, the figure increased to 1,307.

Thanks to the Family Court, children whose parents are facing separation proceedings have the right to have a lawyer represent them in court. In 2005, there were 48 cases involving children’s lawyers.

When asked, Dr Mifsud Bonnici said he believed this process was not making it too simple for couples to separate. On the other hand, he said, we are offering the tools for couples to reconcile and try give their marriage another chance. He said sometimes, couples jump from the frying pan into the fire when they file a separation case because these cases are not so simple and straightforward. “We are helping couples to put the situation in the right perspective. Strictly speaking, children prefer having both their parents under one roof, even if they don’t agree, rather than separating completely,” he said.

Dr Mifsud Bonnici said another problem which had to be solved was what he termed as a “modern-day problem” involving grandparents. If a couple separates because, for example, the man committed adultery, the mother is granted custody over the children involved.

Now, often the father’s parents are filing applications in court requesting the court to grant them permission to see their grandchildren because the mother would have completely cut out contact with the father’s family.

“This is becoming a social and legal issue because the court will not grant permission to the grandparents to see their grandchildren. The law is not that clear about the right of grandparents to see their grandchildren and I believe it is about time that we address this problem and grant grandparents this right,” he said.

Asked about security in court, Dr Mifsud Bonnici said the government has recently issued a tender for the provision of security services at the law courts. This tender is at the adjudication stage. In the meantime, closed circuit television cameras have already been installed in court.

In his concluding remarks, Dr Mifsud Bonnici said the Family Court is being used “intelligently” by couples facing problems in their marriage. “The number of couples who come to the court with a made-up mind and who refuse mediation is decreasing. I would dare say that lawyers prefer a fully-fledged court case because they would get more money but many other lawyers are wise enough to acknowledge that mediation is being used to salvage marriages and to understand the meaning of the separation proceedings,” he said.

Mediation should be a voluntary process – Dr Robert Abela

The Family Court was introduced to our legal system in December 2003. Prior to that date, cases relating to family matters, namely marriage annulment cases, personal separation cases, paternity cases and other similar cases used to be heard by the First Hall of the Civil Court, which is the same court which decides all other cases of a civil nature.

Nonetheless, notwithstanding the absence of an “official Family Court” situated within a different building from the other law courts, it had been the practice for a number of years that cases relating to family matters were all assigned to one particular judge. The need to have a specialised set-up had long been felt due to the ever-increasing number of cases relating to family matters.

Family Court lawyer Dr Robert Abela said that although one can state that the setting up of the Family Court has alleviated the pressure on the Civil Court, the pressure on the Family Court itself is an ever-increasing one, with a very intense workload being now put on the two presiding judges.

There are matters such as those relating to maintenance and to the care and custody of the minor children but then you get vexatious applications by couples demanding the court to determine petty issues, such as a party asking the court to determine who should pay the electricity bill, which matters should never be addressed to the court in the first place, but with the use of some common sense should be resolved by the parties between themselves.

Has the separation process been facilitated? Since December 2003, the separation process can be said to have been made more cumbersome and lengthy with the introduction of the mandatory mediation process, rather than facilitated, Dr Abela said.

Although it can be said that the mediation process has produced positive effects in a limited number of cases, not in the sense of reconciling couples but rather in helping the parties arrive at a consensual separation, the question still remains as to whether these limited successes justify the large number of cases where the mediation process is a futile exercise which would favour the view that the mediation process should not be a compulsory but a voluntary one.

The two judges presiding over the Family Court are both doing their utmost to cope with the heavy workload, he added. Fortunately due to the endless effort being put in by both judges, and the judge presiding over the Family Court before them, the problem of delays in obtaining a final judgement before the Family Court is not a significant one, when both parties in a lawsuit cooperate with the Court.

Obviously when the parties start to introduce unnecessary burdens in the judicial process, then a lengthy court case becomes inevitable, with the blame for this often then being unjustly given to the courts by the parties themselves.

The criminal section within the Family Court is a major problem. It is apparent that the police, which handles the prosecution of hundreds of cases before this court, is very short-staffed and cannot handle the workload.

This has resulted in a lot of administrative mistakes in the issuing and serving of citations, and an unacceptable number of cases, mainly those relating to the issue of maintenance not being paid by a spouse becoming time-barred, with the obvious hardships which the parties and the minor children have to suffer as a result of this, he added.

Another problem is the fact that the hall and the waiting room where the criminal section of the Family Court holds its sittings consist of two very small rooms, which are inadequate for the purpose for which they are being used and are being consistently overcrowded.

One of the reasons why the criminal section of the Family Court was set up was to avoid this situation and afford some privacy to the parties involved, and the exact opposite is happening.

Dr Abela said that another main problem is the law regulating the mediation process, which calls for a number of amendments. Principally, the starting point would be to make the mediation process a voluntary one.

The law regulating other family matters, such as paternity issues, is an archaic one which hampers the smooth and efficient running of the Family Court and thus immediate amendments are called for.

The question of security, or rather the total lack of it, is another main problem in the Family Court set-up. This lack of security is particularly evident during the mediation sittings.

During these sittings it is a regular occurrence to have a party with a violent background, who would be the cause for the collapse of the marriage in the first place, having to sit for an hour on the same table with his spouse and matters often get out of hand.

Serious incidents of violence have happened in the mediation rooms and are still happening, and to date the problem has not yet been addressed. The simple but seemingly never-coming solution is to have a competent security officer present outside the mediation rooms at all times, Dr Abela said.

The civil cases before the Family Court are presently being presided over by two judges. The Family Court however, also has a criminal section, where a number of cases which fall within the ambit of the criminal law but which are committed by one spouse against the other, are assigned to this section of the Family Court rather than to the normal courts of a criminal judicature.

The Family Court also hosts the Juvenile Court. The magistrate presiding over this court, who is also being assigned a multitude of other cases not relating to family matters, is doing a very good job dealing with the heavy workload before him. But he has to work within a system which lacks even the basic facilities such as standard office equipment, and this leads one to believe that the administration of the court does not take the criminal section within the Family Court seriously, he said.

Family Court not working properly – Dr Emmy Bezzina

Family lawyer Emmy Bezzina said the situation in Malta is creating an inconvenient environment with much waste of precious time to individuals involved since the Family Court building was inaugurated in 2003.

This, however, did not translate into a Family Court which, lacking a codified family law and serious infrastructural deficiencies, leaves “Malta a very long way to go before it could truly boast of having a family court. We need serious, experienced persons, professionally-versed in pertinent fields to truly set the legal ball rolling for the eventual establishment of a family court”.

Dr Bezzina stated that Malta, through political cowardice, remains the only European State not to have a divorce law, thereby causing discrimination in violation of the Constitution of Malta and the European Convention of Human Rights and Fundamental Freedoms.

He said the Family Court is situated in a “significantly shabby” Strait Street – Valletta and is a “relatively narrow five-storey edifice which leaves much to be desired when one relates to its social objectives and all that is interrelated to them, from security to space, planning to privacy.”

The basement should be utilised as research and consulting rooms for members of the legal profession and their clients but this space is still unutilised. He said there is nowhere for members of the legal profession to consult with their clients with some privacy and in accepted comfort

Dr Bezzina continued that the Criminal Cases Family Court, in Hall 24, presently presided by Magistrate Anthony Vella on the second floor, is “a boiling cauldron, with a low ceiling, crammed, claustrophobic and with most unhygienic surroundings.

“The third floor, reserved for mediators’ meeting rooms, is another structural disaster with not less than five out of six mediation rooms basically unsuitable to be utilised as such. Privacy is non-existent in the mediation rooms because one can easily overhear what is being said,” he said.

Asked about the mediation process, Dr Bezzina said: “With all due respect to the current mediators working within the Family Court structure, the mediation process has, by and large, been a waste of resources and basically useless time for the couples involved. The government might have had an objective in this – to hide the actual number of separation applications filed, as mediation applications are no more than a camouflaged manner of hiding the correct figures of filed separation applications. In fact whenever some parliamentarian asks a half-baked question as to how many separation applications are pending, a correct reply is never given because mediation applications are not accounted for.

“It is an overall opinion that the imposed mediation process (as opposed to voluntary mediation which has always been practised by lawyers throughout separation proceedings) is only serving as a political buffer and not truly the interests of the couples involved who have every right to get on with their lives and do not require political assistance of doubtful criteria to reach their quest towards a new life in the wake of a failed relationship,” he said.

Dr Bezzina argued that although the intention to make the Family Court function appropriately is definitely there, there is inadequacy in the actuality needed. “Blame has to rest squarely on incompetent politicians who have not vested genuine commitment to see that this necessity for Malta becomes truly feasible. A conclusion could be reached that presently the Family Court and its Registry are the busiest sections of our Courts of Justice. We must find ways to expedite, not prolong, these proceedings. In so doing, we are extending the inconvenience and suffering of parties involved. In the circumstances, a Maltese divorce law cannot be held up any further by politicians: this in the supreme interests of justice for the individuals involved,” he concluded.