With the stand it has taken, notably at last week’s Dresden meeting of the EU’s ministers of justice, the government of Malta has effectively banned foreign residents in Malta from benefiting from a forthcoming easing of complications regarding cross-border divorce cases.
In simpler terms, the EU is proposing that in cases where different jurisdictions may apply, the couple can choose the jurisdiction that suits them best. This proposal is known as Rome III.
At the Dresden meeting, Justice Minister Tonio Borg expressed Malta’s disapproval of such a proposal. He then formally asked for an opt out, which means that even if the proposal becomes law, Malta, in view of its opt-out, would not be affected by the change.
Even though the discussion within the EU is not over yet, Malta has already been promised an ad hoc solution.
Dr Borg told The Times that Malta does not want to get involved in whether there should be divorce or not within the EU. Since there is no divorce law in Malta, he argued, the Maltese courts cannot be in a position to decide on cases related to international divorce cases by invoking the law of other member States.
Apart from Malta, other countries, such as Ireland and the UK, for other reasons, also chose to opt out.
However, in an interview given the previous day to The Times, the head of the EU representation in Malta, Dr Joanna Drake countered the Maltese government’s position point after point.
She questioned the government’s concern that with Rome III the Maltese court will have to give a divorce judgement, and called it a remote possibility, “even an impossibility”.
Dr Drake also argued that there is nothing wrong in the Rome III proposal in itself as it would simply empower the courts to guide a divorcing foreign couple as to which law was applicable to them in accordance with a set of common EU rules.
Dr Drake also insisted that the EU proposal would not bring in divorce “through the back door”.
Representatives of the foreign community, some of whom have spoken to this newspaper, were livid. They asked what right did the government of Malta have to take such a stand without consulting the foreign residents it was effectively impeding if they had to have a divorce case.
They also pointed out that the Marriage Registry regularly accepts most of the divorces that take place, even between Maltese citizens, in other jurisdictions. Nobody claims this is the equivalent of the Registry accepting divorce. So what is the difference with the Rome III proposal?
The Rome III proposal could also impact on Maltese living abroad. As things stand, there are some foreign countries that do not allow a divorce to take place between people of a different nationality without recourse to that country of origin’s divorce laws. As things stand, seeing there is no divorce law in Malta, two Maltese citizens living in some countries abroad, are not allowed to divorce.
Some foreign sources now claim that the Rome III proposal would have eased this particular problem but ask if the fact that Malta has chosen an opt-out means that not even this proposal would affect Maltese living abroad as well as foreign residents here.