The division of property in personal separation proceedings : an analysis

Abstract

It is true to say that division of property is one of the most salient features dealt with in most separation proceedings. Sometimes this leads to serious contentions between separating couples both during mediation proceedings and even during litigations in Court. The reason to this is the fact that property carries two important implications, both of a financial as well as of an emotional nature. With the analysis and application of different interpretations on how should property be divided in personal separation, the aim of this Dissertation is to give an anecdote on the methods and means resorted to when deciding such an important issue. One of the most important points analysed in this Dissertation is the element of subjectivity on how property is beng divided in personal separation. Therefore, where one finds a somewhat clear uniformity on the division of immovable property, the same cannot be said for the method employed when dividing movable property. In fact, one can note a distinction on this aspect, depending on the Judge presiding over that case. One has to note that different shortcomings are also analysed in the Maltese family mediation experience, especially when this is compared and contrasted with that of other jurisdictions. The study is then concluded with the proposal of different improvements which can be carried out in our legal system, and that they have been proved useful in foreign jurisdictions. There are two forms of suggestions which can be made in 5 the area of dividing matrimonial property in personal separation. First of all, suggestions on the compulsory mediation process must be made, since owing to the fact that mediation is compulsory, such process would inevitably play an essential role when dividing property. The second set of suggestions are aimed to improve the system adopted in Court adjudication, mainly by highlighting the need to have objective criteria in the area of property division which, based on the evidence produced by the parties and on the presiding Judge's opinion, make such process a highly subjective one.