397 tal-2003 - Regolamenti tal-2003 dwar Il-Qorti Ċivili (Sezzjoni tal-Familja), Il-Qorti Ċivili (Sezzjoni ta’ Ġurisdizzjoni Ġenerali) u Il-Qorti tal-Maġistrati (Għawdex) (Ġurisdizzjoni Superjuri) (Sezzjoni tal-Familja) (sezzjonital-familja)

L.N. 397 of 2003

CODE OF ORGANISATION AND CIVIL PROCEDURE

(CAP. 12)

CIVIL CODE

(CAP. 16)

The Civil Court (Family Sections), The Civil Court (General

Jurisdiction) and The Court of Magistrates (Gozo) (Superior

Jurisdiction) (Family Sections) Regulations 2003.

IN virtue of the powers conferred by articles 193 A and 470 of

the Code of Organisation and Civil Procedure and by Article 37 of the

Civil Code, the Minister for Justice and Home Affairs has made the

following regulations.

(1) These Regulations may be cited as the Civil Court

(Family Section) The Civil Court (General Jurisdiction Sections) and

The Court of Magistrates (Gozo) (Superior Jurisdiction) (Family

Section) Regulations 2003.

(2) These Regulations shall come into force on the 16 th

December, 2003.

In these regulations unless the context otherwise requires>

(a) the Civil Court (Family Section), the Civil Court

(Voluntary Jurisdiction Section) and the Court of Magistrates

(Gozo) (Superior Jurisdiction) (Family Section) are the sections

of the respective courts established by the Civil Courts

(Establishment of Sections) Order 2003 reproduced in the Schedule

to these regulations<

(b) “Minister” means the Minister responsible for Justice<

(1) The Minister shall in accordance with article 89 of the

Code of Organisation and Civil Procedure appoint panels of experts as

follows>

(a) a panel of experts in family matters (hereinafter in

these regulations called mediators) being persons who in the

opinion of the Minister have the necessary qualities to

undertake the functions assigned to mediators by these

regulations which panel shall consist of two lists as follows>

(i) a first list consisting of persons qualified as

aforesaid from amongst whom the parties in a case may

select by mutual consent a person to act as mediator;

and

(ii) a second list of persons qualified as aforesaid

who shall be appointed by the Court on a roster basis to

act as mediators in a particular case.

A person who has the necessary qualities as aforesaid

may be included in both the first and second list.

(b) a panel of experts in family law (hereinafter in these

regulations called children’s advocates) being persons in

possession of the warrant to practice as advocates.

(2) Mediators and children’s advocates shall be paid such

fees for their services as the Minister may from time to time establish.

Where the parties select a mediator by mutual consent from the first list

of mediators the fees due to such mediator shall be charged to the parties,

otherwise the fees due to mediators and children’s advocates shall be

paid by the Registrar.

(3) Before making the appointments as aforesaid the

Minister shall consult the judge or judges, presiding over the Civil Court

(Family Section).

(4) Before assuming the functions of their office the

mediators and children’s advocates shall subscribe to an oath in the

hands of the Attorney General to discharge the duties of their office

faithfully and impartially and not to divulge any information which

may come to their knowledge through the performance of their duties.

Such oath shall be filed in the registry of the Civil Court by means of a

note and the Registrar shall keep such note in a special Book which

shall be properly indexed and be subject to public inspection at all times

during which the said Registry is open.

(5) A mediator may request to abstain from performing his

functions in any particular case and may be challenged on the same

grounds on which according to law a judge may abstain or be challenged.

The judge or magistrate presiding the Court before which the case is

being heard shall decide on such request for abstention or challenge

and the decision of the judge or magistrate, as the case may be, shall be

final and may not be appealed against or challenged before any Court.

(1) Any party wishing to proceed to initiate a suit for personal

separation against the other spouse shall first demand authority to

proceed from the Civil Court (Family Division), the Court of Magistrates

(Gozo) (Superior Jurisdiction) (Family Division) as the case may be,

each of such courts hereinafter in this regulation called the “Court”, by

filing a letter to that effect in the registry of the Court addressed to the

registrar, stating the name and address both of the person filing the

letter as well as that of the other spouse, and requesting the Court to

authorise him or her to proceed. Such letter shall be signed and filed by

the party personally or by an advocate or legal procurator on behalf of

such party.

(2) Where authority to proceed for personal separation is

granted by the Court, it shall be lawful for either spouse to bring a suit

before the Court, or counter claim for personal separation on the same

or any other of the grounds mentioned in the Civil Code as if such leave

referred to both parties on all of the said grounds.

(3) Before granting such leave the Court shall summon the

parties to appear before a mediator, either appointed by it or with the

mutual consent of the parties, and where the Court deems it expedient

so to do, either of its own motion, or at the request of the mediator, or of

either of the spouses, may appoint a children’s advocate to represent

the interests of any minor children of the parties.

(4) The Mediator shall in the first place attempt to reconcile

the parties. During this stage the mediator shall hear the parties.

(5) Where parties fail to reconcile the mediator shall mediate

between them in an effort to reach an agreement to enter a deed of

personal separation by mutual consent.

(6) The mediator may in camera hear the parties separately

or together, in the presence of their advocates or legal procurators, and

he may also hear any minor children of the spouses, the children’s

advocate, if any, and the advocates or legal procurators of the parties.

(7) The spouses and all other persons shall not be required

to take any oath and no evidence may be adduced before any Court of

anything divulged to the mediator in the conciliation or mediation

procedures, of any proposal made by him or any other person during

the procedures or of the reaction of either spouse to such proposals.

(8) Where the mediator manages to reconcile the parties he

shall make a note to that effect in the records of the case, and transmit

the records to the judge who shall thereupon close the proceedings.

(9) Where the parties have not reconciled, but they have

through the office of the mediator or otherwise agreed to enter into a

deed of personal separation by mutual consent, the mediator shall

transmit to the judge a draft of the deed of personal separation, together

with any comments thereon by the advocates or legal procurators of the

parties, the children’s advocate, if any, and his views, for the grant of

the authorisation by the judge.

(10) The judge shall give his authorisation by decree in

camera, but may before proceeding to give such decree hear either of

the parties, the children or their respective advocates and legal

procurators.

(11) (a) During the mediation period the parties may

jointly request the Court to appoint a judicial assistant in order to receive

evidence on oath intended to facilitate the proceedings before the

Mediator.

(b) The judge shall decree on any such demand in

camera, after hearing, if he so deems fit, the spouses, the minor

children, and, or, their respective advocates and legal procurators.

(12) Where the attempts of the mediator to reconcile the

parties or to assist them in reaching an agreement as aforesaid have

failed or upon the lapse of two months from the filing of the letter referred

to in paragraph (1) (or such longer period as the Court may for good

reason grant) no such conciliation or agreement has been reached, the

mediator shall inform the judge in writing to that effect and the judge

shall thereupon grant the leave requested>

Provided that where in the opinion of the mediator, it is

unlikely that such conciliation can be achieved or such agreement

reached, the mediator shall inform the judge in writing before the lapse

of the said period of two months or before such longer period as

aforesaid.

(13) Without prejudice to paragraph 11 of this regulation,

any party may during the pendency of the procedures in the conciliation,

mediation, pre-trial or trial stages, request the Court to make such

provisional orders or to issue such writ or warrant as may be necessary

to safeguard its interest.

(1) Where during the conciliation or mediation stage the

parties reach an agreement on the payment of an amount for maintenance

that may be payable by one of them to the other either in respect of him

or herself or in respect of the children, or agreement is reached as to the

custody for visitation rights with respect to, the children, or on who is

to continue to reside in the matrimonial home, the mediator shall make

a note of such agreement which note shall be subscribed by the parties,

and shall forthwith transmit such note to the Court which shall decree

on the matter accordingly.

(2) Provided that where any party is not assisted by an

advocate or legal procurator the mediator shall inform that party of the

importance of the agreement and of his or her right to be assisted by an

advocate or legal procurator or to take legal advice before subscribing

to any such agreement.

(a) Where two spouses agree to enter into a deed of personal

separation by mutual consent otherwise than through the mediation of

a mediator as provided in regulation 4, they shall file in a note to that

effect signed by their notary and their respective advocates or legal

procurators. Such note shall be filed in the Family Section of the Civil

Court or of the Court of Magistrates (Gozo) (Superior Jurisdiction)

together with a draft of the deed.

(b) Upon receipt of the note the Court shall refer the matter

to a mediator, either selected jointly by the parties from the first

list and indicated by them in the note, or assigned by the Court.

(c) The mediator shall, not later than one month from the

filing of the note, examine the said draft deed and if he deems fit,

hear the parties in the presence of their legal counsel and if

appropriate any minor children of the spouses, and may also request

the Court to appoint a children’s advocate. The Mediator shall

within the aforesaid period of one month send back the note to the

Court together with his advice thereon.

(d) Upon the receipt of the advice, the Court shall after

hearing, if it so deems fit the spouses or any of their children,

proceed to give its decree as soon as possible approving, amending

or rejecting the said draft deed.

(1) Where the Court has authorised a spouse to proceed Trial

cases for

with a suit for personal separation, either party may initiate personal separation.

proceedings within two months or such longer period as the Court

may, for grave reason, grant.

(2) Upon such case being initiated and upon the close of

the written proceedings, the Court shall proceed to appoint a children’s

advocate where in its opinion this is required in the interests of any

minor children of the spouses, and shall thereupon proceed with the

pre-trial stage of the case in which the Court shall fix time limits within

which the parties shall produce all documentary evidence in support of

their case and produce such witnesses whose evidence cannot be

produced by affidavit.

(3) The pre-trial period shall close when all the documents

and other evidence of the parties have been produced or the time within

which they were to be so produced has elapsed. During such period

the Court may also appoint such experts as it may deem necessary to

assist it.

(4) Except for grave and serious reasons to be stated by the

Court, the pre-trial period shall not extend beyond one year after the

close of the written proceedings.

(5) During the pre-trial period and until it passes to give

judgement, the Court may, on the demand of either party, give such

provisional orders as it may deem fit, and may likewise, where grave

reasons or change of circumstances so necessitate, alter or revoke such

orders.

(6) After the close of the pre-trial stage the judge shall fix

the date for the trial where the advocates for the spouses and any

children’s advocates that may have been appointed shall make their

submissions and counter submissions and the Court shall thereupon

proceed to give judgement on all points at issue>

Provided that if the Court shall not be in a position to

determine the manner in which any community of property between

the parties is to be liquidated, it may first determine all the other issues

and then proceed to give judgement on that point at a later stage. The

Court may also at any stage encourage the parties to enter into an

arbitration agreement as provided for in the proviso to sub-article (6) of

Cap 387.

article 15 of the Arbitration Act.

Where under any law a person is required to proceed before a

Court within a particular time, such proceedings shall for the purposes

of these procedures be deemed to have been commenced upon filing in

the registry of the Court of the letter refered to in paragraph (1) of

regulation 4.

(1) Without prejudice to the provisions of regulations 4 to

7 where any person desires to proceed before the Court in connection

with>

(a) disputes between parties, whether married or otherwise,

concerning the custody and maintenance of, or visitation rights to

their children< or

(b) maintenance between spouses< or

(c) variations of any matter regulated by any judgement of

personal separation or by a deed of personal separation< or

(d) variation of any agreement in any matter referred to in

sub-paragraph (a) hereof<

such party shall, in the first place, file a letter in the registry of the

Court stating his or her claim containing the details listed in paragraph

(1) of regulation 4 and signed and filed as therein provided.

(2) The court shall summon the parties to appear before a

mediator, and the provisions of paragraph (3) of regulation 4 shall apply.

(3) The mediator shall mediate between the parties in an

effort to make them reach an agreement on the matter in dispute and the

provisions of paragraphs (6) and (7) of regulation 4 shall apply to the

mediation process.

(4) Where the parties reach an agreement it shall be recorded

in writing and filed in the records of the proceedings, which shall

thereupon be transmitted by the mediator to the Court, which shall unless

there is anything therein contrary to public order, decree on the matter

in dispute accordingly.

(5) Should the parties fail to reach an agreement the mediator

shall inform the Court accordingly.

(6) During the mediation stage any of the parties may apply

to the Court for the issue of any provisional order or the issue of any act

or warrant to safeguard any of his or her rights.

(1) Upon being informed by the mediator that the parties Trial

other cases.

have failed to reach an agreement, following the mediation proceedings

under the preceding regulation, the Court shall authorise the parties to

initiate proceedings within two months or such longer period as the

Court may for grave reasons grant.

(2) Upon such case being initiated and upon the close of

the written proceedings, the Court shall proceed to appoint a children’s

advocate where in its opinion this is required in the interests of any

minor children, and shall thereupon proceed with the pre-trial stage of

the case in which the Court shall fix time limits within which the parties

shall produce all documentary evidence in support of their case and

produce such witnesses whose evidence cannot be produced by affidavit.

(3) The pre-trial period shall close when all the documents

and other evidence of the parties have been produced or the time within

which they were to be so produced has elapsed. During such period

the Court may also appoint such experts as it may deem necessary to

assist it.

(4) Except for grave and serious reasons to be stated by the

Court, the pre-trial period shall not extend beyond one year after the

close of the written proceedings.

(5) During the pre-trial period and until it passes to give

judgement, the Court may, on the demand of either party give such

provisional orders as it may deem fit, and may likewise, where grave

reasons or change of circumstances so necessitate, alter or revoke such

orders.

(6) After the close of the pre-trial stage the judge shall fix

the date for the trial where the advocates for the parties and any children’s

advocates that may have been appointed shall make their submissions

and counter submissions and the Court shall thereupon proceed to give

judgement on all points at issue.

Where a person has under the provisions of these regulations Where party fails to

been summoned to appear before a mediator and fails to do so, the appear

mediation.

mediator shall inform the Court and indicate such failure together with

any reason, if any, adduced by such person for the failure, and the Court

when deciding the matter before it shall take due account and give due

consideration to such failure.

Judge or

The judge or magistrate, as the case may be, and any judicial

magistrate

assistant who may be assigned to the case under the direction of the

may give all

necessary

Court, shall give all such guidance and directives as they may think fit

directions.

for the better management of the case.

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