Private international law rules regulating marriage and its effects in Malta

Abstract

Thirteen years have passed since the submission of the last thesis to the Faculty of Laws studying aspects of matrimonial issues in Maltese private international law. During these years, this area of study has become increasingly dominated by legislation especially due to Malta's accession in the European Union in 2004. In the first chapter the author discusses the principles of formal and essential validity of marriage as enunciated by Maltese Law. Reference is made to the connecting factors used by the Marriage Act 1975, any deficiencies of this Act, and the importance of having harmonised rules to establish the international validity of a matrimonial union. The civil effects of marriage are then discussed, whereby a study of the problem in determining which system of law regulates the personal and patrimonial relationship between spouses is undertaken. In this chapter special reference is made to matrimonial regimes. The author also deals with the choice of law rules relating to the rights of succession between spouses, the law regulating trusts and maintenance. Chapter 4 examines the rules of jurisdiction as laid down by the Code of Organisation and Civil Procedure and Council Regulation (EC) No 220112003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels llbis) which grant the Maltese court the right to hear and determine a matrimonial dispute. The choice of law rules regulating separation, divorce and annulment of marriage are also discussed. Furthermore, the author also delves into the law governing the effects of these matrimonial causes, and the Agreement between the Holy See and Malta on the Recognition of CivilEffects to Canonical Marriages and to Decisions of the Ecclesiastical Authorities and Tribunals about the same Marriages'. A study on the rules of recognition and enforcement of foreign decisions on status is also carried out in Chapter 5. Wherein the author analyses the rules as laid down by the Marriage Act 1975 and Brussels llbis, and the civil effects of such recognition. The author in Chapter 6, studies the rules of jurisdiction to order the payment of financial relief, and the recognition and enforcement of foreign maintenance orders, as laid down by the Maintenance Orders (Reciprocal Enforcement) Act 1974, Council Regulation (EC) No 44/2001, of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I), the Code of Organisation and Civil Procedure, and Council Regulation (EC) No 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims. This chapter also discusses the choice of law rules governing the dispute and the process of harmonisation in the sphere of maintenance obligations. In the last chapter the author attempts to create a map wherein the different private international law concepts involved in matrimonial issues are placed. This is done with the intent to aid the reader to determine whether the Maltese court has jurisdiction to hear the case or not; and whether the foreign decision on status or ordering the payment of financial relief can be recognised and enforced in Malta. Moreover, this concluding chapter tries to compare and contrast the manner in which the rules of procedure, namely service of documents and /is pendens, are adopted by the various pieces of legislation discussed in the thesis. The chapter also discusses the choice of law, the rules of renvoi, public policy, 'weaker party' principle and personal connecting factors as applicable in the sphere of matrimonial issues. The principal object of this thesis is to discuss the concepts regarding matrimonial issues enunciated by Maltese law and those introduced by the European Union. Moreover, emphasis is placed on the problems due to the lack of harmonisation in private international law and to developments made by the European Union to bridge the gaps and decrease the variances in this vast subject of marriage and its effects.