Divorce - Adaption of Various Laws Order, 2012

L.N. 218 of 2012

CIVIL CODE AMENDMENT ACT, 2011

(ACT XIV OF 2011)

Divorce - Adaption of Various Laws Order, 2012

IN EXERCISE of the powers conferred by article 11(5) of the

Civil Code (Amendment) Act, 2011, the Prime Minister has made the

following Order:-

The title of this Order is the Divorce - Adaption of Various Citation.

Laws Order, 2012.

The object of this Order is to effect amendments that have Scope.

to be made to any law or regulation which, directly or indirectly,

refers to personal separation between the spouses for the purpose of

adapting the same to the introduction of divorce.

This Order shall be deemed to have come into effect on 1st Date of coming

into force.

October 2011.

PART I

This Part amends the Code of Organization and Civil Amends the

Procedure and it shall be read and construed as one with the Code of Code

Organization

Organization and Civil Procedure, hereinafter in this Part referred to and

Procedure.

as "the Code".

Article 876 of the Code shall be amended as follows

Amends article

876 of the Code.

(a) in the marginal note thereof, for the words "cases of

personal separation", there shall be substituted the words "cases

of personal separation or divorce"; and

(b) in sub-article (2) thereof, for the words "in any such

action for separation", there shall be substituted the words "in

any such action for separation or divorce".

In sub-article (2) of article 968 of the Code, for the words Amends article

"including those relating to separation or annulment of a marriage", 968 of the Code.

there shall be substituted the words "including those relating to

separation, divorce or annulment of a marriage".

PART II

This Part amends the Civil Code and it shall be read and

construed as one with the Civil Code, hereinafter in this Part referred

to as "the Code".

In sub-article (6) of article 37 of the Code, for the words

"provisions of article 381(3) of the Code" there shall be substituted

the words "provisions of article 381 of the Code".

Article 295 of the Code shall be amended as follows

(a) in the proviso to sub-article (1) thereof, for the

words "registered in accordance with article 66A(3)", there shall

be substituted the words "registered in accordance with article

66A(4)"; and

(b) sub-article (3) thereof shall be substituted by the

following new sub-article

"(3) The Director shall also enter, by means of a

note in the margin of an act in respect of a registered

marriage, any declaration made by a married woman on

the Form Q delivered by her in accordance with the

provisions of sub-article (5) of article 4, as well as any

revision to the maiden surname or any prohibition of use of

the husband’s surname referred to

(a) in a note of personal separation

between the spouses enrolled in accordance with

article 62A, and a reference to the date and place of

marriage shall be made in any such note of

enrolment; or

(b) in a judgment or decree of divorce

registered in accordance with article 66A(4).".

Article 639 of the Code shall be

substituted by the

following new article

" Application

639. The rights referred to in article 633

of articles 633

and article 635 shall also apply in cases

and 635 in

where

cases of

personal

(a)

the spouses were personally

separation or

divorce.

separated and the surviving spouse was

either in terms of article 55A or in terms

of a public deed of consensual

separation entitled to reside in the

matrimonial home; or

(b) the person who died was

divorced and his former spouse was, at

the time of his death, entitled to reside in

the matrimonial home by virtue of the

applicability of the provisions of article

66(5) and article 55A.".

PART III

This Part amends the Judicial Proceedings (Regulation of Amends the

Reports) Act and it shall be read and construed as one with the Judicial

Proceedings

Judicial Proceedings (Regulation of Reports) Act, hereinafter in this (Regulation

of

Reports) Act.

Part referred to as "the principal Act".

In paragraph (b) of article 2 of the principal Act, for the Amends article

words "for nullity of marriage or for judicial separation, or 2 principal

of the

Act.

touching the effects arising from such nullity of marriage or

judicial separation", there shall be substituted the words "for nullity

of marriage, for divorce or for judicial separation, or touching the

effects arising from such nullity of marriage, divorce or judicial

separation".

PART IV

This Part amends the Income Tax Act and it shall be read Amends the

and construed as one with the Income Tax Act, hereinafter in this Part Income

Tax Act.

referred to as "the principal Act".

In paragraph (e) of sub-article (5) of article 5 of the Amends article

principal Act, for the words "a judicial or consensual separation", 5 principal

of the

Act.

there shall be substituted the words "a judicial or consensual

separation or a divorce".

In paragraph (d) of sub-article (4) of article 5A of the Amends article

principal Act, for the words "a judicial or consensual separation", 5A

of the

principal Act.

there shall be substituted the words "a judicial or consensual

separation or a divorce".

In paragraph (t) of sub-article (1) of article 12 of the

principal Act, for the words "a public deed of personal separation

under the authority of the Courts of Malta or the Courts of another

country as the Commissioner may approve", there shall be substituted

the words "a public deed of personal separation under the authority of

the Courts of Malta or the Courts of another country as the

Commissioner may approve, or as ordered by the Courts of Malta in a

divorce judgment or decree or by the Courts or other authorities of

another country as the Commissioner may approve".

In article 14A of the principal Act, for the words "a public

deed of personal separation under the authority of the Courts of Malta

or the Courts of another country as the Commissioner may approve",

there shall be substituted the words "a public deed of personal

separation under the authority of the Courts of Malta or the Courts or

other authorities of another country as the Commissioner may

approve, or as ordered by the Courts of Malta in a divorce judgment

or decree or by the Courts of another country as the Commissioner

may approve".

In paragraph (a) of the proviso to sub-article (1) of article

56 of the principal Act, for the words "was a spouse separated de jure

or de facto, the rates applicable", there shall be substituted the words

"was a spouse separated de jure or de facto, or was divorced, the rates

applicable".

PART V

This Part amends the Members of Parliament Pensions Act

and it shall be read and construed as one with the Members of

Parliament Pensions Act, hereinafter in this Part referred to as "the

principal Act".

Immediately after the definition "service pension" in

article 2 of the principal Act, there shall be added the following new

definition

" "widow" and "actual widow" shall

have the same meaning assigned to them in

article 2 of the Social Security Act;".

Sub-article (4) of article 4B of the principal Act shall be

amended as follows

(a) for the words "The surviving widow or widower",

there shall be substituted the words "The widow or widower";

and

(b)

the proviso thereof shall be substituted by the

following new proviso

"Provided that where there are one

or more widows who had been married

to a person appointed as President of

Malta at any time during his tenure of

office, such widow’s pension shall be

apportioned in the manner provided in

article 42A of the Social Security Act

Provided further that a person

entitled to a pension under this sub-

article who is also entitled to a pension

under any other provisions of this Act

shall only be entitled to receive the

higher of such pensions.".

The proviso to sub-article (1) of article 7 of the principal Amends article

7 of the

Act shall be substituted by the following

principal Act.

"Provided that where there are one or

more widows who had been married to a

member at any time during his tenure of

office, such widow’s pension shall be

apportioned in the manner provided in article

42A of the Social Security Act

Provided further that a person entitled to

a pension under this article who is also

entitled to a pension under any other

provision of this Act shall only be entitled to

receive the higher of such pensions.".

PART VI

This Part amends the Social Security Act and it shall be Amends the

read and construed as one with the Social Security Act, hereinafter in Social

Act.

this Part referred to as "the principal Act".

In article 2 of the principal Act, for the definition "widow" Amends article

2 of the

there shall be substituted the following new definition

principal Act.

" "widow" means the surviving spouse or surviving former

spouse, whether a widow or a widower, of a married or divorced

couple, and wherever it appears, husband shall include wife,

former husband and former wife

Provided that "actual widow" means the surviving spouse,

whether a widow or a widower, of a married couple who

immediately prior to widowhood was married to the deceased

spouse and had a legal right to be maintained by the other

spouse, and in relation to an actual widow, wherever it appears,

husband shall include wife.".

Article 16 of the principal Act shall be amended as

follows

(a) in paragraph (a) of sub-article (2) thereof, for the

words "a widow, where such widow is not gainfully occupied",

there shall be substituted the words "an actual widow, where

such actual widow is not gainfully occupied"; and

(b) in paragraph (a)(i) of sub-article (4) thereof, for the

words "is a widow", there shall be substituted the words "is an

actual widow".

Sub-article (11) of article 30 of the principal Act shall be

substituted by the following new sub-article

"(11) The Director may, if he so deems fit in the

circumstances of the case, take proceedings before the

competent Civil Court against any of the following persons

(a) any person by whom maintenance is due to

any person in respect of whom Social Assistance is

claimed or received under this article (other than sub-

article (8) thereof); or

(b) such relatives being the spouse, father,

mother, sons or daughters as the case may be, of any

person in respect of whom Social Assistance is claimed or

received under this article (other than sub-article (8)

thereof),

to compel them to refund any such assistance that is paid to or

on behalf of such person and the court shall order the refund of

any sum paid as Social Assistance up to such sum as would have

been due by such relatives or relative had the person to whom

Social Assistance is paid had claimed maintenance from such

relatives in accordance with the provisions of the Civil Code

Provided that notwithstanding that the person in respect of

whom Social Assistance has been paid by the Director may have

in a contract of personal separation renounced to the right to

maintenance from his or her spouse, the Director may still claim

refund under this sub-article from the spouse of the person to

whom Social Assistance has been paid, and such spouse shall be

liable to refund such Social Assistance to the full extent as if

such renunciation had not taken place, unless it is proved to the

satisfaction of the Director that the party to whom Social

Assistance has been paid has been guilty of adultery or has

abandoned the other spouse as provided in articles 38 and 41 of

the Civil Code".

In sub-article (1) of article 40 of the principal Act, for the Amends article

words "Widows Pension specified in the Twelfth Schedule, as was 40

principal Act.

applicable in her case", there shall be substituted the words "Widows

Pension specified in the Twelfth Schedule, or, in the case were the

rate is assessed under article 42A, such rate as is apportioned under

such article, as was applicable in her case".

Immediately after article 42 of the principal Act, there Adds new

article to the

shall be added the following new article

principal Act.

" Apportion-

(1) Where the deceased insured

ment of

person, as a consequence of having been

pension in

divorced, has one widow or more, the pension

respect of

widowhood

in respect of widowhood shall be apportioned.

where there is

more than one

Each widow, with the exception of the actual

widow.

widow, shall take a portion of the pension in

respect of widowhood which shall be based

on her respective period of marriage,

meaning

(a)

in the case where there was a

divorce, from the date of the marriage

up to the date of divorce; and

(b) in the case where there was a

personal separation, and where no legal

right to maintenance existed in favour of

the widow, from the date of marriage up

to the date of death of the insured

person.

(2) The portion of the pension in

respect of widowhood due to the widow under

sub-article (1)

(a) shall only be with respect to

those years of the marriage, as defined

in sub-article (1), during which the

deceased husband was paying or was

credited social security contributions

under this Act; and

(b) shall be calculated on the

period provided for in paragraph (a),

which bears to the total period of

contribution years on which the

contribution average of the deceased

husband is assessed for the purpose of

establishing his retirement pension in

accordance with this Act.

(3) The actual widow shall take such

portion of the pension in respect of

widowhood as shall remain following

apportionment made in accordance with sub-

articles (1) and (2).".

29. Immediately after article 42A of the principal Act, there

shall be added the following new article

" Maximum

In case of widows entitled to

rate of pension

receive more than one pension in respect of

in respect of

widowhood by virtue of this Part, the

widowhood.

aggregate amount payable as a pension in

respect of widowhood shall in no case exceed

the maximum pension payable under article

35.".

30. In article 46 of the principal Act, for the words "credited to

her for that year.", there shall be substituted the words "credited to her

for that year:"; and immediately thererafter, there shall be added

thereto the following new proviso

"Provided that paragraph (a) of this article shall only apply

to an actual widow and only with respect to those contributions

as not already credited to any other widow.".

31. In paragraph (b) of sub-article (1) of article 108 of the

principal Act, for the words "by the widow or widower as the case

may be", there shall be substituted the words "by the actual widow or

actual widower as the case may be".

32. In the proviso of sub-article (1) of article 109 of the

principal Act, for the words "at the instance of the widow or widower,

or the heirs", there shall be substituted the words "at the instance of

the actual widow or actual widower, or the heirs".

33. Article 8 of Part II of the First Schedule to the principal

Act shall be amended as follows

(a)

in paragraph (b) thereof, for the words "employment

of a widow", there shall be substituted the words "employment

of an actual widow"; and

(b) in the proviso thereof, for the words "salary of such

person or widow", there shall be substituted the words "salary of

such person or actual widow".

34. The Second Schedule to the principal Act shall be Amends the

Second

amended as follows

Schedule to the

principal Act.

(a)

article 5 of Part IV thereof shall be substituted by

the following

"(5) Where a person is divorced or is a married

person who is legally or de facto separated from the other

spouse proves to the satisfaction of the Director that any

sum is being paid to that person’s spouse or former spouse

as an integral condition of their separation or divorce, that

sum shall be deducted when calculating such person’s

means."; and

(b) article 5 of Part V thereof shall be substituted by the

following

"(5) Where a person is divorced or is a married

person who is legally or de facto separated from the other

spouse proves to the satisfaction of the Director that any

sum is being paid to that person’s spouse or former spouse

as an integral condition of their separation or divorce, that

sum shall be deducted when calculating such person’s

means.".

PART VII

35. This Part amends the following

Amends the

Duty on

Documents and

(a) the Duty on Documents and Transfers Act and,

Transfers Act

and the

where the context requires, it shall be read and construed as one

Exemption from

with the Duty on Documents and Transfers Act, hereinafter in

Payment of

Duty on

this Part referred to as "the principal Act"; and

Documents and

Transfers Order.

(b) the Exemption from Payment of Duty on Documents

and Transfers Order and, where the context requires, it shall be

read and construed as one with the Exemption from Payment of

Duty on Documents and Transfers Order, hereinafter in this Part

referred to as "the principal Order".

36. Sub-article (3) of article 32 of the principal Act shall be

substituted by the following new sub-article

"(3) Notwithstanding any other provisions of this Act, no

duty shall be charged on the assignment of immovable property

and on the transfer of marketable securities between persons

who are married or who were formerly married to each other,

consequent to a consensual or judicial separation or to a divorce

between such persons, or on the dissolution of the community of

acquests existing between them or on any partition of any

property held in common between spouses, being community

property or otherwise on the death of one spouse between the

surviving spouse and the heirs of the deceased spouse.".

37. In paragraph (i) of article 2 of the principal Order, for the

words "between spouses consequent to a consensual or judicial

separation", there shall be substituted the words "between persons

who are married or were formerly married to each other, consequent

to a consensual or judicial separation or to a divorce between such

persons".

PART VIII

38. This Part amends the Arbitration Act and it shall be read

and construed as one with the Arbitration Act, hereinafter in this Part

referred to as "the principal Act".

39. In sub-article (6) of article 15 of the principal Act, for the

words "relating to personal separation and annulment of marriage",

there shall be substituted the words "relating to personal separation,

divorce or annulment of marriage".

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