What are the effects of divorce once the marriage is declared to be dissolved?

When divorce is pronounced each of the spouses will have the right to civilly remarry since in the eyes of the law the marriage would be deemed to be dissolved. Furthermore the spouses will no longer be bound by the obligation to live together and once divorce is pronounced by the court, through a decree or a judgement, the rights of the spouses to the succession of each other will cease. 

What happens to the wife’s surname will it automatically revert back to the maiden surname?

Either one of the spouses may apply to the court to have the wife’s maiden surname re-instated. Therefore the wife may lodge an application as to ask the court to revert back to her maiden surname whilst the husband can apply to the court as to forbid his wife from using his surname if he proves to the court that such causes him prejudice.

Will my children be prejudiced in the case that my spouse remarries?


If after divorce one of the spouses decides to remarry this will not affect the children begotten in the previous marriage. The spouse’s obligations regarding the children will still subsist.

What happens if one of the spouse’s has a child from the subsequent marriage, will the children from the first marriage be prejudiced against in the case where the spouse dies?

As the law stands at the moment children are assigned the same succession rights from their parents therefore they will all be eligible for the same reserved portion according to law. Only children who are born out of wedlock suffer certain prejudice since they will not receive the same share as legitimate children in the case where the parent or parents die without a will.

What about social benefits granted in favour of the children, will these always be guaranteed to the mother?

No. Just like in separation proceedings the spouses need to agree between them who will receive social benefits relating to the children. In the absence of such the court will decide. 

It is important to note that when the court is determining the amount of maintenance, Social Benefits paid under the Social Security Act will not be considered. Therefore if one of the spouses is receiving social assistance this will not reduce the maintenance he or she should receive from the other spouse.

What documents will I require to lodge a demand for divorce?


Generally personal identification should suffice, however in the case where the spouses are already separated a copy of the separation agreement or court judgement pronouncing separation would also be required. A lawyer can always help to obtain these documents in the event where the spouse or spouses do not possess them. 

What should I do if I am served with an application from my spouse to get a divorce?

Once an application for divorce is served on one of the spouses the respondent spouse should contact an advocate as to be directed professionally on what should be done next. After the advocate reassures himself with the respondent that there is no possibility of reconciliation between the spouses he will proceed to assist you to draft a reply to the application of divorce lodged by the other spouse.

What should I do if I wish to lodge a demand in court to get a divorce?

If you wish to commence proceedings for a divorce unilaterally the applicant should contact an advocate. The advocate will help you examine the possibility of reconciling with the other spouse and consider whether separation is the best option for the couple. In the instance where divorce is deemed to be the best way forward the advocate will help you draft an application for a demand to divorce from your spouse.

What is “no-fault divorce”?

No-fault divorce is the possibility of allowing the dissolution of marriage to take place without the need for the spouses to attribute any fault to one another. Therefore the person or couple that makes an application for divorce need not make reference to any fault attributed to the other spouse which led to the dissolution of the marriage. The spouses have the possibility of doing away with this element of conflict and opt for a more amicable settlement. 

Does the application for divorce need to be lodged by one of the spouses or can the spouses lodge it together?

Divorce can be demanded either by the spouses jointly or by one of the spouses against the other spouse. Both applications serve the same purpose.

Is it possible for the spouse to impose divorce on the other spouse who does not want a divorce?

Yes it is possible. The application to apply for divorce may be lodged by one of the spouses against the other. The other spouse can however contest the application for divorce lodged by the other spouse on the following grounds; 

  • That the time period required by law has not yet lapsed or;
  • That the spouse demanding the divorce has not paid maintenance which fell due.
Furthermore in the instance where the couple is not legally separated and one of the spouses demands divorce, the respondent may bring up any other pleas that could be brought up in separation proceedings, besides the ones mentioned above.

Do I need to be legally separated to be eligible to apply for divorce?

No a person who would like to divorce their spouse does not need to be legally separated. However if the person would have already obtained a separation either by means of a contract or a court judgement such person may still apply to demand divorce. In either case the spouses must have been living apart for a period of at least four years.

If I am already separated will I lose all the rights achieved through the separation settlement if I chose to get divorced?

The new law specifically states that no changes shall be brought about to the separation agreement set in a contract or in a judgement of the court. Therefore everything that was ordered or agreed upon in the separation will remain effective. The only changes that will take place are those required for the effects of divorce to become applicable. 

What are the legal requirements for spouses to be eligible to apply for divorce in Malta?

There are three main legal requirements of eligibility. These are;

  • The spouses must have been living apart for a continuous period of, or periods that amount to at least four years, during the immediate five years preceding the demand for divorce or four years have lapsed from the date of the legal separation;
  • There must be no prospect of reconciliation between the spouses; 
  • If maintenance is already due by one of the spouses to the other, either for the children or for the spouse, such spouse must be successfully providing such maintenance.

Will my children be guaranteed maintenance?

If maintenance is due by one of the spouses, such must be successfully provided for by the spouse who owes it, for the spouses to be eligible to apply for divorce. If the couple is already separated and maintenance for the children has already been agreed upon in the separation agreement or through a court order those obligations will remain binding. If the spouses are not legally separated they can either attempt to reach a settlement between them or else they can make recourse to the court to conclude these arrangements regarding the maintenance of the children. 

Further to the above the new Act provides for the possibility of having the payment of maintenance safeguarded by means of a guarantee, which shall not exceed the amount of maintenance for five years, from the spouse who owes maintenance in the case where there are serious objective circumstances which necessitate such guarantee. 

How are issues dealing with custody and access rights agreed upon in divorce?

The way the court deals with these rights is very similar to that during separation. If the couple is already separated the agreement or court order will subsist, therefore all the arrangements made within such, will remain in force between the spouses.

In the case where the couple is not as yet separated, they can attempt an arrangement during mediation proceedings or in the absence of such recourse may be made to the courts. In either case the court will give directions even when not expressly ask to by the parties. 

What about maintenance owed to one of the spouses, is this guaranteed?

Not all spouses are owed maintenance once they get separated or divorced. In granting maintenance for the spouse the court will take into consideration a number of factors relating to each of the spouses’ income, accommodation requirements, ability to work and other needs. However the spouses may at any time renounce to their right to receive maintenance from each other. 

It is important to note that if the spouse who is receiving maintenance, either by virtue of a contract of separation or by virtue of a judgement of the court, remarries or enters into a personal relationship which brings about an obligation of maintenance from this other person, that spouse will lose the right to receive maintenance. Therefore the spouse’s obligation to pay maintenance is revoked once this occurs. On the other hand if the spouse who is paying maintenance enters into another relationship or remarries, his obligation to pay maintenance will subsist. Also just like in separation a spouse may lose his right to maintenance if he or she is attributed fault for the dissolution of the marriage, like for instance when the spouse had an adulterous affair or disserted his spouse. 

Can a person get divorced multiple times?

Yes, the law does not limit the number of times a person can get divorced.