THE CIVIL COURT (FAMILY SECTION), THE FIRST HALL OF THE CIVIL COURT AND THE COURT OF MAGISTRATES (GOZO) (SUPERIOR

SUBSIDIARY LEGISLATION 12.20

THE CIVIL COURT (FAMILY SECTION), THE FIRST

HALL OF THE CIVIL COURT AND THE COURT OF

MAGISTRATES (GOZO) (SUPERIOR

JURISDICTION) (FAMILY SECTION)

REGULATIONS

16th December, 2003

LEGAL NOTICE 397 of 2003, as amended by Legal Notices 9 of 2004,

181 and 186 of 2006, 370 and 386 of 2011, 111 of 2012, 347 of 2020 and

212 of 2023 and Acts XIII of 2018 and XVI of 2019.

The title of these regulations is The Civil Court (Family

Section), The First Hall of the Civil Court and The Court of

Magistrates (Gozo) (Superior Jurisdiction) (Family Section)

Regulations.

(Regulation 2(a)

The Civil Courts (Establishment of Sections) Order

1. The title of this Order is the Civil Courts (Establishment of

Sections) Order.

2. There shall be three sections in the Civil Court to which

shall be assigned, as provided by this Order, the category of cases,

hitherto falling within the jurisdiction of the Civil Court (First

Hall) and the Civil Court (Second Hall), or as may be assigned to

the Civil Court by any law.

3. The sections of the Civil Court shall be the Family Section,

the Voluntary Jurisdiction Section and a general jurisdiction section

to be styled the First Hall of the Civil Court.

4. To the Civil Court (Family Section) shall be assigned those

cases falling within the competence of the Civil Court and which

relate to matters regulated by

(a) Titles I, II and IV of Book First the Civil Code;

(b) the Maintenance Orders (Facilities for Enforcement)

Ordinance;

(c) the Maintenance Orders (Reciprocal Enforcement)

Act;

(d) the Marriage Act; and

(e) the Child Abduction and Child Custody Act.

5. To the Civil Court (Voluntary Jurisdiction Section) shall be

assigned applications falling within the Competence of the Civil

Court and which relate to matters regulated by

(a) Titles III, V, VI and VII of Book First of the Civil

Code; and

(b) Part II of Book Second of the Code of Organization

and Civil Procedure.

6. To the First Hall of the Civil Court shall be assigned all

cases within the competence of the Civil Court and not assigned to

the Family Section or the Voluntary Jurisdiction Section.

7. Subject to any rules of court or to any regulation, cases

shall be assigned to the different sections of the Civil Court by the

Registrar in accordance with the category to which the case refers.

8. Where any dispute arises as to whether a case should be

assigned to one section or another of the Civil Court, or where a

case involves more than one category falling to be assigned to

different sections of the Civil Court, the matter shall be referred to

the Chief Justice who shall, in camera, determine the section to

which the case shall be assigned. The determination by the Chief

Justice shall be registered in the records of the case and shall be

final.

9. Without prejudice to the provisions of article 54 of the

Code of Organization and Civil Procedure there shall be in the

Court of Magistrates (Gozo), in its Superior Jurisdiction, two

Sections to be styled respectively ''The Family Section'' and ''The

General Jurisdiction Section''. To the Family Section shall be

assigned cases falling within the competence of that Court in its

Superior Jurisdiction and which are regulated by the provisions

referred to in article 4(a) to (e) of this Order, and to the General

Jurisdiction Sections shall be assigned cases falling within the

competence of the said Court in its Superior Jurisdiction which are

not assigned to the Family Section or to which the said article 54 of

the said Code does not apply. Articles 7 and 9 of this Order shall

mutatis mutandis apply with respect to cases falling within the

competence of the said Court in its Superior Jurisdiction with

regard to the assignment of cases to the various Sections.

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, reproduced in the Schedule;

(b) ''Minister'' means the Minister responsible for Justice.

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

Code of Organization and Civil Procedure appoint 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 consists 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) The Minister shall in accordance with article 89 of the

Code of Organizationand Civil Procedure appoint a

panel of advocates (hereinafter in these regulations

called "children’s advocates") being persons in

possession of the warrant to practice as advocates and

who having experience in family law.

(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 State Advocate 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.

(6A) Without prejudice to the functions of the Children’s Advocate

under any other law, the functions of the Children’s Advocate shall

include inter alia

(a) providing legal assistance, representations and advice

to minors;

(b) acting in the best interests of the minors;

(c) submitting the views of minors in Court including

through the filing of judicial acts;

(d) providing explanations to the minors on the possible

consequences should the Court conform to the minors’

wishes; and

(e) providing the minors with any relevant information

Provided that the Children’s Advocate shall provide the minor

with all the relevant explanations and information as mentioned in

paragraphs (b) and (c) only if the minors are considered by the

Children’s Advocate topossess sufficient understanding and maturity.

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

of Organization and Civil Procedure appoint a panel of experts in

family and child matters (hereinafter in these regulations called

support persons) being persons who in the opinion of the Minister

have the necessary qualities to undertake the functions assigned to

support persons, which panel shall consist of persons qualified as

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

act as support persons in a particular case.

(7)

The functions of the support person shall include, inter

alia

(a) guiding and assisting the minor in a sensitive manner,

both during and after the proceedings, as appropriate;

(b) the provision of general emotional support to the

minor;

(c) advising the Court as to whether therapy or

counselling is necessary, both during and after the

proceedings;

(d) liaising with the minor’s parents or legal guardians,

family members, and advocate, as appropriate;

(e) informing the minor about the proceedings at court and

his role during the proceedings;

(f)

advising or requesting the Court on the issuing of

protection orders, both during and after the

proceedings, as appropriate;

(g) monitoring the adherence to Court orders by

perpetrators following the conclusion of the

proceedings;

(h) monitoring the relationship between the minor and the

perpetrators following the conclusion of the

proceedings, as appropriate;

(i)

liaising with the appropriate agencies and, or

professionals to ensure that the necessary counselling

and, or treatment is provided, as appropriate;

(j)

advising or requesting the Court to issue any special

measures as may be necessary in the minor’s best

interest.

The provisions of regulation 3 shall apply for the purposes

of article 66J(1) of the Civil Code, such that the panels referred to

in the said regulation 3 shall be deemed also to be the register of

qualified persons referred to in the said article 66J(1) of the Civil

Code and shall serve the same function.".

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

personal separation or divorce against the other spouse shall first

dem an d aut ho ri ty t o proce ed fro m th e C iv il Co urt ( Fa mi ly

Division), the Court of Magistrates (Gozo) (Superior Jurisdiction)

( F a m i l y D i v is io n ) as t h e c a s e m a y be , ea c h of su c h c ou r t s

hereinafter in this regulation called the ''Court'', by filing a letter, in

the case of personal separation, or by filing an application, in the

case of divorce, as the case may be, 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 or

divorce 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 or divorce, as the case may be, 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

Provided that where the letter referred to in this regulation is

accompanied by evidence substantiating a claim of domestic violence,

the Court shall summon the parties to appear before it to determine

whether appearing before a mediator is in the best interest of both

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 or to file a joint

application for divorce, the mediator shall transmit to the judge a

draft of the deed of personal separation or of the divorce

agreement, as the case may be, 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 or of

the application, as the case may be, referred to in sub-regulation (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 sub-regulation (11), any party may

du r in g t h e pe nd e n c y o f th e p ro c e du r e s i n t he c o n c i li a t i on ,

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

ma trimonial home, t he m ediato r sh al l m ake a n ot e 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) 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.

To the Civil Court (Commercial Section) shall be assigned

applications falling within the competence of the Civil Court and

which relate to matters regulated by the Companies Act, the

Competition Act and any regulations made thereunder, by the

Consumer Affairs Act and any regulations made thereunder, and by

the Malta Competition and Consumer Affairs Authority Act.

(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

with a suit for personal separation or divorce, either party may

initiate 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

article 15(6) of the Arbitration Act.

Where, in the course of mediation proceedings, the mediator

becomes aware of, or has reason to suspect, the occurrence of

domestic violence, the mediator shall immediately inform the Judge in

writing to that effect.

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

regulation 4(1).

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

7 whe r e any person des ire s to proce ed b efore the C o urt 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

by a decree or judgment of divorce; or

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

paragraph (a),

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

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

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

mediator, and the provisions of regulation 4(3) 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 regulation 4(6) and (7) 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

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 been summoned to appear before a mediator and fails to

do so, the 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.

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

judicial assistant who may be assigned to the case under the

direction of the Court, shall give all such guidance and directives as

they may think fit for the better management of the case.

The section of the Court which, in accordance with these

Regulations and in accordance with the Civil Courts (Establishment

of Sections) Order, is, according to the nature of the same and

according to the territorial jurisdiction of the Court, to take

cognizance of any act, application or sworn application, shall on

the coming into force of these regulations take cognizance of those

acts, applications or sworn applications that immediately before the

coming into force of these Regulations or that Order were pending

before the First Hall of the Civil Court, the Second Hall of the Civil

Court and the Court of Magistrates (Gozo) (Superior Jurisdiction),

and this according to the jurisdiction of each of those sections in

accordance with these Regulations and that Order, so however that

notwithstanding anything in these Regulations or that Order, the

procedures to be followed in respect of each act, application or

sworn application filed before the date of the coming into force of

these Regulations or of that Order, the procedures to be followed in

respect of each act, application or sworn application filed before

the date of the coming into force of these Regulations or of that

Order, shall be that in force immediately before that date.

14. In order to ensure that students training at the University of

Malta to become mediators benefit from any placements with

mediators, the following rules shall be observed

(a) a student reading for a Master of Arts in Mediation at

the University of Malta shall declare on oath that he

will maintain the confidentiality of the proceedings.

Such declaration shall be filed in the registry of the

Civil Court (Family Section);

(b) prior to such a student attending mediation, the

mediator shall obtain the prior consent of the parties;

(c) such student may take an active role in the mediation

proceedings under the guidance of a mediator provided

that the consent referred to in paragraph (b) has been

obtained;

(d) should any party to a mediation process at any time

request the student to leave the mediation sitting, then

the student shall immediately withdraw from that

sitting.

Sabiex jiġi żgurat illi studenti li qed jitħarrġu fl-Università

ta’ Malta biex isiru medjaturi jibbenefikaw minn placements ma’

medjaturi, għandhom jiġu osservati dawn ir-regoli

(a) student li qed jistudja fil-kors ta’ Master tal-Arti fil-

Medjazzjoni fl-Università ta’ Malta għandu jiddikjara

bil-ġurament illi huwa se jżomm il-kunfidenzjalità ta’

dawk il-proċeduri. Dik id-dikjarazzjoni għandha tiġi

ppreżentata fir-reġistru tal-Qorti ¬ivili (Sezzjoni tal-

Familja);

(b) qabel ma dak l-istudent jattendi għal medjazzjoni, il-

medjatur ikun jista’ jġib il-permess minn qabel tal-

partijiet;

(ċ) dak l-istudent jista’ jieħu rwol attiv fil-proċeduri tal-

medjazzjoni taħt il-gwida ta’ medjatur b’dan illi jkun

inġieb il-kunsens imsemmi fil-paragrafu (b);

(d) jekk parti fil-proċess tal-medjazzjoni f’kull ħin titlob

lill-istudent li jitlaq mis-seduta tal-medjazzjoni, l-

istudent għandu jitlaq minnufih minn dik is-seduta.