Bill No 165 of 13 February 2026 aims to legislate government's so-called 'family law reform'. The Bill consists of a meagre 12 provisions, out of which clause 1 is the short title and commencement provision, and clause 2 simply states that for the purposes of Part I of that Bill "Code" means "Criminal Code". The 'reform' is contained in less than four and a half pages of text.

Clause 3 introduces a new contravention in the Criminal Code: "when ordered by a court or so bound by a contract to have access to a child, fails to exercise such access or, unless such failure constitutes a more serious offence, fails to return the child at the time so ordered or agreed, without just cause". I agree that the failure to provide access to a child by one spouse or partner to the other needs to be addressed by law as that is a social phenomenon causing pain and suffering.

Clause 4 deals with repeated offences in respect of (1) lack of maintenance payment, (2) failure to provide access to the other spouse or partner contemplated in clause 3, and (3) custody. When any of these three offences "are committed by the same offender at different times upon the same victim, such acts or omissions shall be deemed to constitution a continuous offence for the purpose of article 18" of the Criminal Code. Although these three instances are omissions, the second and third can be easily punished by the Criminal Law but not necessarily the first.

Article 18 defines what is considered to be a "continuous offence", that is, where "the several acts committed by the offender, even if at different times, constitute violations of the same provision of the law, and are committed in pursuance of the same design, such acts shall be deemed to be a single offence, called a continuous offence, but the punishment may be increased by one or two degrees". In other words, if a husband fails to pay maintenance to his wife on ten different occasions, that criminal conduct will not lead to ten different criminal charges in court as is the case today but to one criminal charge that absorbs in one procedure the ten violations of the same provision of the law, in our case, lack of payment of maintenance. But, instead of being punished only for one offence - once in reality ten were committed - the court will increase the punishment for the offence to reflect the plurality of criminal law contraventions.

This is a judicious clause that overturns the ludicrous Constitutional Court judgment delivered on 29 January 2026 that epitomizes injustice in a court judgment. There is of course nothing extraordinary about this for we know that courts apply the law not the principles of justice. But if one wants an example par excellence that our Constitutional Court is not a court of justice but a law court, this judgment is the best example that can be cited as it tramples with disdain upon the principles of justice, reasonableness, proportionality, and legality all at one go.

In a nutshell, a man was charged multiple times for non-payment of maintenance to his wife. Each time he is charged, he is sentenced to imprisonment. The more time he spent in jail, meant that the lesser income he would earn, and the more arrears of maintenance payment he would accumulate. Once out of jail, he is re-arrested again, charged once more, and imprisoned for the nth time. This man ended up like the Greek mythological figure Sisyphus who was condemned to carry a boulder up a hill and before he arrived at the very hilltop, the boulder would roll down and he would have to restart the process afresh but each and every single time the boulder rolls down. He was thus condemned to eternal damnation. So was this man condemned by the Constitutional Court because it abusively changed the nature of an offence - contrary to the Criminal Code provisions - from a contravention into a crime - for the punishment that it allowed to be meted out for a contravention was that of a crime, a punishment that can transform itself from a few weeks of detention into a punishment of life imprisonment. Needless to say, the Constitutional Court has no authority to amend the Criminal Code. Nor is this judgment in compliance with the principle of legality, the separation of powers, and the rule of law.

This judgment is the epitome par excellence of injustice. It flies in the face of the principles of justice, reasonableness, proportionality, and legality for the punishment inflicted upon this man, the contemporary Sisyphus, is eternally never ending, severe, disproportionate, and inhumane. Once out of jail he is re-arrested, re-charged, re-punished, and re-sentenced to jail and this process repeats itself incessantly. It is a vicious circle with no exit therefrom, a never-ending story. How can this man ever pay the maintenance due to his wife if the state has labelled him and treats him like a serial contraventionist whose place must unequivocably be in jail for the rest of his life? For how can he ever pay maintenance if the state does not allow him to work? The Police, the Attorney General, the courts of criminal jurisdiction, and the Constitutional Court have all conspired, connived, and colluded together to have this man imprisoned for life in breach of the principle of legality once there is no law that establishes life imprisonment for the lack of payment of maintenance. The effects of this man's quandary amount to perpetual punishment for a contravention, a minor offence.

This runs counter to the principle of nulla poena sine lege (no punishment can be inflicted unless it is established by law). In this case, the court has appointed itself legislator by illegally changing the contraventional status of the offence, imposed punishments more in line with the nature of a crime rather than of a contravention, breached the Constitution and the European Convention of Human Rights by flouting the ne bis in idem principle (a person cannot be charged more than once on the same offence for which he has already been acquitted or punished), and by completely ignoring the principle of legality, including the nulla poena sine lege constitutional principle.

This judgment, therefore, is a travesty of justice that contravenes the same definition of justice - to give everyone his due. This man has been over-punished. Indeed, the very first statement in Justinian's Institutes is that: 'Justice is the set and constant purpose which gives to every man his due'. This principle was lifted from the writings of the Roman jurist Ulpanius (Ulpian) that defined justice as 'rendering to each one that is his due'. But did the Constitutional Court administer to this man his due or was it dead set out to overkill the man? I am sure there have been and continue to be others suffering judicial injustice very much emulating his predicament. And this man lost the case. So his misery is still ongoing. Whilst maintenance that is due should be paid up, and this article is not making a case against non-payment of maintenance by the defaulting spouse, this 'remedy' that the legislature had adopted, Constitutional Court notwithstanding, is cruel, unjust, and inhumane; it does not guarantee that maintenance will be ever eventually paid.

One cannot therefore understand the non-sensical judgment proffered by the Constitutional Court that amounts to the infliction of life imprisonment on whoever does not have the means to pay maintenance. So clause 4 of the Bill correctly rubbishes this Constitutional Court's excessive overjealousness to absurd limits to enforce the Criminal Code's contravention of non-payment of maintenance.

Clause 4 then provides that when a person has been charged under any one or more of these three continuing offences, but no judgment has so far been delivered, and new charges are going to be proffered, it is possible with the court's permission to add those charges to the ongoing undecided charges. This provision does raise some issues.

First, what if the inferior criminal court has already delivered judgment but that judgment has not been finally determined due to an appeal being lodged, does it mean that the new charges can be added to the existing charges at appellate stage?

Second, once all proceedings have been decided and are final (res judicata), what will happen to new charges? To take a practical example. X was charged with a continuous offence of not having paid maintenance to Y for January to March 2025. Once this case is being heard, the Prosecution obtain the Court's permission to add also the charge of not having paid maintenance for April to June 2025. The court delivers judgment and the accused is sentenced to three months imprisonment. The accused does not appeal and the judgment becomes final (res judicata). But the accused does not pay maintenance for July to September 2025 as, in the meantime, he is serving his three months' imprisonment.

Once out of jail, the convicted person is re-arrested, re-charged and re-judged for the same offence. Will that new offence be considered a continuous offence for the months of July to September 2025? The answer should be in the affirmative. Will it be considered a continuous offence of the previous continuous offence? The provision is silent on the matter. Being a continuous offence of an already judged continuous offence, can he now plead ne bis in idem because he has already been found guilty of the continuous offence in question and has already served three months in prison? (If this is the case, this means that the wife will never ever receive one cent of maintenance if she cannot force him to pay her maintenance through civil process). Or will this be considered a different continuous offence and, if so, will it not contradict the whole purpose of the amendment?

Possibly some non-criminal 'punishment' should be resorted to in such case. Government should appoint a Consultative Board to advise on non-criminal civil means to enforce the payment of maintenance or provide alternative remedies such as grants of maintenance to be paid by the state that can - hopefully - be collected by it at a later stage when the debtor is in a position to repay such maintenance. One should also carry out a comparative study to establish how foreign states deal with non-payment of maintenance.

Bearing in mind that the offence in question is a contravention (and not a crime) and that, therefore, the period of detention should be short and not a detention of life imprisonment as it will end up in practice, will not this change the juridical nature of the punishment of a contraventional nature into one of a criminal nature, and a very serious crime for that matter once it will be only death or, perhaps, repetitive prerogatives of mercy that will sort out the matter for this person?

Further, what is exactly a continuous offence in relation to these three contraventions related to maintenance, access, and custody? If the husband pays maintenance for three consecutive months but skips one month, then pays for two months, then skips three months, then pays one month, then skips four months. Would these amount to a continuing offence? The matter should not be left to the courts to decide on the basis of case law or juristic writings but should be clearly spelt out in the law once deprivation of liberty is the punishment that is inflicted. More respect should be afforded to Human Rights Law.

Clause 5 simply tells us that for the purpose of Part II of Bill "Code" means the Code of Organization and Civil Procedure. Clause 6 simply lists "the Family Court" as one of the superior courts of Malta. In other words, the Family Court will be called by that designation, not as hitherto known, that is, "Civil Court (Family Section)".

Clause 7 essentially codifies the provisions of a Legal Notice that set out the jurisdiction of the Civil Court (Family Section) now redesignated as "Family Court". It also empowers the Minister to make regulations to give effect to changes in the name of the court, that is, to substitute "Civil Court (Family Section)" into "Family Court" wherever needed in Maltese Law. It also allocates criminal jurisdiction to the Family Court in the case of "causes of a criminal nature the subject matter of which shall be a criminal offence consisting [in] a contravention related to a civil law matter being heard before that court". A transitory provision is also made to shift family cases from the Civil Court (Family Section) to the newly established Family Court.

Clause 8 establishes a Support Office within the Courts Services Agency. Strictly speaking, this clause is unnecessary. There is no need to have a provision in the Code of Organization and Civil Procedure that establishes an Office within the Courts Service Agency when the said Agency is not established by the aforesaid Code, where no Office of that Agency is established and listed in the said Code, and where the Agency is question is established by a subsidiary law made under the Public Administration Act and not under the said Code. It should be deleted. The Support Office, can be either established in the subsidiary legislation made under the Public Administration Act (the preferred option) or established under the Public Administration Act (this is not this author's preferred option).

Clause 9 simply tells us that for the purpose of Part III of Bill 165, "Code" means the Civil Code.

Clause 10 introduces clause 21A in the Code to empower the justice minister to make regulations to set out the method on how the Family Court is to calculate maintenance. This introduces objective criteria in the law and removes the subjective criteria adopted so far by the judges sitting in the Family Court. It introduces - hopefully - an element of legal certainty.

Clause 11 regulates the possibility to withdraw from the community of acquests to enable a party to reside outside the matrimonial home. Clause 12 concerns the cessation of the community of acquests.

Overall, this is a good bill but insufficient. The 'reform' is very limited in scope. It barely satisfies the definition of a reform. Tweaking might have been a more appropriate term than reform. Bearing in mind that the last reform to Family Law dates back to 2003, that is, more than twenty years have elapsed since then, government should not be proposing a tweaking exercise but a fully-fledged reform. Notwithstanding government's boisterous hustle and bustle, the tweaking carried out to the Family Law is not even well thought out, is limited, and piecemeal.

If government retorts to this criticism by asserting that the Bill will, as a matter of fact, be supplemented by the making of subsidiary legislation to give better effect to, and to develop further, the Family Law reform, the minister for justice should have published draft versions of the subsidiary legislation in question for public scrutiny when the Bill was published in The Malta Government Gazette. For how can the public assess a partial reform when a major component of that reform is kept hidden and unknown?

That said, a comprehensive reform would have: (a) provided a definition of mediation and reconciliation; (b) set out in an exhaustive manner the functions of mediators; (c) regulated better the process of mediation; (d) provided for a Code of Practice on Mediation and another on Reconciliation; (e) established a Code of Ethics for Mediators and another for Conciliators; (f) established the qualifications for appointment of mediator and have them warranted; (g) provide training for Children's Advocates so that they can also be warranted for this purpose. Not any lawyer can serve as a Child's Advocate. Training and certification is of the essence. Even here Children's Advocates must be bound by a Code of Ethics, a Code of Practice, and certified as such. And only the warranted mediators and Children's Advocates may act as such.

Provision should also have been made in this very lacking reform for a Family Law Code that would have codified in one law all Maltese Law on the family. Children of suitable age and maturity should have a right of audience before the Family Court in all proceedings that may affect their interests and all children should benefit from a Children's Advocate on the same lines that indigent people benefit from the services of an Advocate for Legal Aid. The Office of Children's Advocate should be established on a full-time basis as there needs to be, at least, one full timer to manage the Children's Advocates assigned to that office.

The children's right to be heard, nevertheless, should not be transformed into a duty - the child should voluntarily and without undue pressure decide whether to express themselves or otherwise. Parenting plans must also be drawn up by spouses that should be registered with Agenzija Appoġġ that provide for parental responsibility for the child's school years, holidays, birthdays, and other major events. Decision making related to education, religion, medical decisions, etc. must be detailed in this plan. The Family Law should recognise that children are not chattels but human beings that enjoy human dignity and should not be used by one spouse as a ploy or bargaining chip against the other in family court proceedings.

There is so much to be done in relation to a holistic reform of Maltese Family Law but very limited will be done when Bill No. 165 is enacted into law.

However, there is no provision that expedites both mediation and court proceedings.

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta