The legal effects of personal separation between spouses

Abstract

The natural sciences would not be what they are today without knowledge acquired through the study of the minutest particle of matter - the atom. So also, we cannot start to understand the mechanisms and pressures of the society we live in without first concentrating on the smallest component of that society - the family. From the legal point of view, we cannot start to regulate the various relationships existing within a society, without first creating and preserving order within the fundamental relationship the family. This is why our Civil Code, drawing upon its essentially continental pedigree, starts off with the regulation 'Of the Rights and Duties arising from Marriage.' (Book First, Title One.) It is with the darker part of family law that this thesis is concerned: the regulation, under Maltese law, of the conjugal relationship within the context of a marital breakdown. In studying this field, one is constantly troubled by the brooding question: do these rules really solve anything at all? The answer is, quite obviously, that they do not. Indeed, they cannot. Both the legislator and the Judge can only make the best of what is essentially a hellish situation. The way back towards redemption, the return to a healthy married life, can only be made, if at all, by the spouses themselves. With the completion of this thesis, the Faculty of Law has now covered most of the field occupied by the law of separation, the causes of separation having been dealt with some years back by Dr. A. Magri LL.D. This does not mean, however, that the case is closed. Due to exigencies of time and space, I have completely ommitted the following topics from this thesis: the revocability and cessation of the effects of separation, and the effects of 'de facto' and consensual separation. Research into these fields will yield enough material for one, or even two theses; it therefore seemed preferable to leave them untouched than to dispose of them superficially in a couple of short chapters tagged on at the endo The method adopted was the following: having compiled a general index of local published decisions, I compared our own law with Italian law as it stood prior to 1975, drawing upon the prolific literature discussing the regime in Italy. A more discriminating look at the local cases gave me a clearer image of what each section meant, or of what it should mean. A final comparison with the Italian system subsequent to the 1975 reforms completed the picture.