What constitutes living apart" for the purposes of Maltese Divorce Law?

Abstract

Maltese divorce law requires that in order to obtain a divorce, spouses must have lived apart for a period of at least four years out of the previous five, or at least four years have passed from when a legal separation was pronounced. Given its ambiguous nature and absence of a definition, the Maltese courts do not analyse or delve into what factors amount to living apart, while great uncertainty and various interpretations have resulted from the Irish courts. Therefore, since Maltese divorce law mirrors the Irish version in respect to this particular requirement, the former cannot be studied alone, but needs to be examined in conjunction with the latter. Thus, the primary focus of this paper is to analyse the various interpretations which have emerged from the courts when faced with interpreting this concept on a case-by-case basis, in order to identify the common features which the courts deem acceptable to amount to living apart, as well as what the legislator intended from this specific requirement and whether it was intentional to omit a definition. In light of this, a possible definition of the concept of living apart is offered which is intended to reduce the amount of uncertainty for future divorce cases to follow. Moreover, recommendations to this requisite are presented in order to provide an improved and fairer Maltese divorce process, one which will provide spouses with more liberty while safeguarding the family bond are addressed in the conclusion of this paper.