Alternattiva Demokratika’s criticism of the government’s position in seeking assurance that the Commission’s proposal to introduce rules concerning applicable law in divorce matters will not oblige Maltese courts to hand down a divorce judgment by virtue of a foreign law, is based on the premise that the proposal seeks to harmonise substantive national divorce laws, the Department of Information said yesterday.

This premise (and in particular the term “EU divorce law”) is a faulty one. Alternattiva Demokratika has failed to distinguish between the harmonisation of domestic legislation on divorce, and the harmonisation of “conflict of law rules” on divorce.

The Commission itself has repeatedly stated that its proposal does not aim to harmonise the divorce laws of member states. Indeed, such harmonisation would not even be allowed by the treaty establishing the European Community (TEC) since Article 65 TEC limits the Community’s legislative powers to judicial cooperation in civil matters having cross-border implications in so far as necessary for the proper functioning of the internal market.

The harmonisation of national divorce laws would fall outside this limited community competence. Therefore, it is not possible for any EU legislative instrument to oblige any member-state to introduce an otherwise inexistent institute in its substantive domestic law. Such introduction is one that is left to the sole discretion of the respective member-state, the DOI said.

What the proposal merely establishes is a list of conflict-of-law rules based on a limited choice of the couple contemplating a divorce. It therefore seeks to make it easier for couples to know which law will apply to their divorce. Since no substantive divorce law exists in Malta, Maltese courts will have no jurisdiction or competence to deal with divorce cases and consequently Malta cannot be chosen by a couple as the forum to obtain a pronouncement of divorce.

Therefore (and in response to Alternattiva Demokratika’s statement that “the proposal as it stands does not affect Malta in any way”), the government is seeking a legally transparent solution to eliminate the potential risk that the provisions of the regulation establishing the applicable law to a particular divorce, be wrongly interpreted as allowing for the possibility of a non-Maltese couple to come before a Maltese court and request that a Maltese judge hand down a divorce judgment in accordance with a non-Maltese law. Obtaining a specific derogation from the regulation would serve to avoid such a wrong interpretation.

Alternattiva Demokratika further makes reference to the fact that, in 1975, divorce was introduced as a legal institution in Malta. This argument is also faulty. The recognition of foreign divorces by virtue of the Marriage Act is based on the principle of mutual recognition of judgments handed down, in accordance with specific criteria, by a non-Maltese court. In no way, does it entail the introduction of an institution in domestic substantive law, the DOI said.