Personal separation in Malta: consensual or by court
Personal separation ends the spouses' obligation to live together for all civil effects, but the marriage continues: neither spouse may remarry (article 35 of the Civil Code, Cap. 16). Many couples in Malta still choose separation, either as a step before divorce or as the final arrangement, because it settles custody, access, maintenance, the matrimonial home and the division of the community of acquests.
There are two routes. Consensual separation is made by public deed before a notary, authorised by a decree of the Civil Court (Family Section) (article 59). Contested separation is a lawsuit by one spouse against the other on a ground set by law: adultery, excesses, cruelty, threats or grievous injury, desertion for two years, or irretrievable breakdown of the marriage (articles 38, 40 and 41). Both routes pass through a mediator first.
This guide is for spouses who want to live apart with their rights fixed by law. It explains the grounds, the letter that opens mediation, interim orders on maintenance and the home, what the court can order in the judgment, and the effects on property, surname and inheritance. Unmarried couples who registered a cohabitation are covered by the Cohabitation Act (Cap. 614), which applies many of the same rules.
Key facts
Deadline
After the Family Section authorises proceedings, the separation case must be filed within two months (regulation 7(1) of S.L. 12.20); mediation lasts up to two months from the letter unless extended (regulation 4(12)). An interim maintenance or matrimonial home decree lapses if the separation action is not filed within two months (article 37(5) of Cap. 16). Desertion as a ground requires at least two years (article 41).
What to do
Decide between consensual and contested separation. If you and your spouse can agree on custody, access, maintenance, the home and the division of property, a consensual separation by public deed is faster, cheaper and private. The draft deed is prepared by a notary with each spouse's advocate or legal procurator and is then approved by the court (article 59 of Cap. 16, regulation 6 of S.L. 12.20).
If you cannot agree, one spouse sues the other. Separation by judgment requires a ground: adultery (article 38); excesses, cruelty, threats or grievous injury against you or your children, or the irretrievable breakdown of the marriage (article 40); or desertion without good grounds for two years or more (article 41). Irretrievable breakdown is usually the simplest ground to prove, because it does not depend on showing a specific fault.
Ask for urgent interim orders if needed. You do not have to wait for the case to obtain maintenance or to decide who stays in the home. Under the proviso to article 37(1) of the Civil Code, before proceedings begin you may apply for a maintenance allowance during the proceedings and for a decree on which spouse will reside in the matrimonial home. The court hears both sides summarily and decides by decree, which is an executive title (article 37(3)–(4)).
Where domestic violence is involved, the application must be appointed for hearing within four days and the court may, even of its own motion, issue a protection order under article 412C of the Criminal Code (article 37(2)). The decree lapses if the separation action is not filed within two months (article 37(5)).
File the letter to the Family Section registry. A spouse who wants to sue for personal separation must first ask the court for authority to proceed by filing a letter addressed to the Registrar of the Civil Court (Family Section), or the Gozo Family Section, with the names and addresses of both spouses (regulation 4(1) of S.L. 12.20). The letter is signed by you personally or by your advocate or legal procurator.
Filing the letter counts as the start of proceedings for any legal time limit (regulation 9). Once leave is granted, either spouse may sue or counter-claim on any of the grounds in the Civil Code (regulation 4(2)), so the other spouse can also bring claims against you in the same case.
Attend mediation and try to reach a deed. The court summons both spouses before a mediator, chosen by agreement from the first list or appointed by the court (regulation 4(3)). The mediator first tries to reconcile you and, failing that, mediates towards a deed of personal separation by mutual consent (regulation 4(4)–(5)). The mediator may hear you separately or together with your advocates, and may hear the children or a children's advocate.
Nothing said in mediation can later be used in evidence (regulation 4(7)). Agreements on collateral matters, such as interim maintenance, access or who lives in the home, are noted, signed and decreed by the court straight away (regulation 5(1)). If a spouse does not attend, the court takes it into account when deciding (regulation 12).
If you agree, sign the deed and obtain the court's authority. When you agree, the mediator sends the draft deed with comments to the judge, who authorises it by decree in camera (regulation 4(9)–(10)). Spouses who reach agreement without going through mediation file a note signed by their notary and their advocates with the draft deed; a mediator examines it within one month and the court approves, amends or rejects it (regulation 6).
Before authorising, the court admonishes the spouses on the consequences, tries to reconcile them, and may revoke, modify or add conditions (article 59(2) of Cap. 16). The deed then has the same effect as a judgment of separation. In the deed, either spouse may renounce the succession of the other (article 60(3)).
If there is no agreement, file the separation case within two months. Where mediation fails, or two months pass from the letter without agreement, the mediator informs the judge and leave to proceed is granted (regulation 4(12)). Either party then has two months, or a longer period granted for grave reason, to file the case (regulation 7(1)).
After the written pleadings, the court may appoint a children's advocate and fixes time limits for evidence; the pre-trial stage should not exceed one year except for grave reasons (regulation 7(4)). During the case either spouse may leave the matrimonial home and ask the court to decide who lives there (article 46), may ask for maintenance in proportion to needs and means (article 46A), and the court gives directions on the children's custody with their welfare as the paramount consideration (article 47).
Know what the court decides in the judgment. On separation the court decides custody of the children (article 56), access (article 57), maintenance for the spouse and the children based on means, ability to work, needs and the factors in article 54(2), and the matrimonial home: exclusive residence, sale, or assignment to one spouse with compensation (article 55A). It may order a lump sum instead of periodic maintenance (article 54(5)).
The community of acquests ends from the day the judgment becomes res judicata, unless the court ordered its cessation earlier during the case (article 55). The spouse who gave cause to the separation on the ground of adultery or desertion forfeits the rights listed in article 48, including succession rights, gifts from the other spouse and a share of acquests made chiefly by the other; on other grounds the court has discretion (articles 51 and 52).
Register the separation and update your records. A separation is effective against third parties only from the day the judgment or the public deed is registered in the Public Registry (article 62A). The court orders the Registrar of Courts to notify the Public Registry (article 35(3)); in a consensual separation, confirm with the notary that the deed has been registered.
On separation you may revert to your surname at birth or the surname at the time of the marriage, by a declaration in the deed or by a note filed before judgment (article 62). Inform your bank, employer, insurers and the Social Security department of the new arrangement. If you later reconcile, voluntary cohabitation restores the duties of cohabitation and maintenance, but other effects end only by a further public deed authorised by the court (articles 63 to 66).
What to watch out for
- Leaving the matrimonial home without first seeking a decree. Moving out is allowed during the case (article 46), but before filing it may be argued as desertion; ask for a decree under article 37 instead.
- Letting the two-month periods lapse. Both the interim decree under article 37(5) of Cap. 16 and the leave to proceed under regulation 7(1) of S.L. 12.20 expire.
- Signing a deed without a full list of assets and debts. The division of the community of acquests in the deed is hard to reopen later.
- Renouncing the other spouse's succession in the deed without understanding it. The renunciation under article 60(3) removes your intestate share and reserved portion permanently.
- Forgetting registration. Until the deed or judgment is registered in the Public Registry, third parties can treat you as not separated (article 62A).
- Relying on fault grounds without evidence. Adultery and desertion must be proved; irretrievable breakdown usually leads to a quicker outcome.
- Assuming separation is the same as divorce. You remain married and cannot remarry; a later divorce needs its own application under article 66A.
Legal basis
Frequently asked questions
What is the difference between separation and divorce in Malta?
Personal separation ends the duty of the spouses to live together for all civil effects but the marriage continues, so neither spouse may remarry (article 35 of Cap. 16). Divorce dissolves the marriage and allows remarriage (article 66L). Separation settles the same practical issues: custody, access, maintenance, the home and the community of acquests.
What are the grounds for personal separation in Malta?
Adultery (article 38); excesses, cruelty, threats or grievous injury against the plaintiff or the children, or irretrievable breakdown of the marriage (article 40); and desertion without good grounds for two years or more (article 41). Spouses may also separate by mutual consent through a public deed authorised by the court (article 59).
How long does a consensual separation take in Malta?
Where the spouses agree without mediation, they file a note signed by the notary and both advocates with the draft deed; the mediator must report within one month and the court then decrees as soon as possible (regulation 6 of S.L. 12.20). After the decree the notary publishes the deed and it is registered in the Public Registry.
Is mediation compulsory for separation in Malta?
Yes. Before suing, a spouse files a letter at the Family Section asking for authority to proceed, and the court summons both spouses before a mediator (regulation 4 of S.L. 12.20). Leave to proceed is granted when mediation fails or after two months. Where evidence of domestic violence is filed, the court first decides whether mediation is appropriate.
Who stays in the house during the separation?
Either spouse may ask the court, even before the case starts, to decide by decree who resides in the matrimonial home while proceedings are pending (articles 37 and 46 of Cap. 16). In the judgment the court can grant one spouse exclusive residence, order a sale, or assign the home to one spouse who compensates the other (article 55A).
Can I get maintenance from my husband or wife while the separation case is pending?
Yes. Article 46A allows either spouse to demand a maintenance allowance in proportion to his or her needs and the other's means, and article 37 lets you ask for it by decree before the case is even filed. The decree is an executive title and lapses if the case is not filed within two months.
What does the spouse at fault lose in a Maltese separation?
A spouse who caused the separation by adultery or desertion forfeits, under article 48 of Cap. 16, succession rights as surviving spouse, gifts received from the other spouse, the right to half of acquests made chiefly by the other after a date fixed by the court, and the right to maintenance. On other grounds the court decides whether to apply these effects (articles 51 and 52).
Can I go back to my maiden name after separation?
Yes. Article 62 of the Civil Code allows each spouse to revert to the surname at birth or the surname at the time of marriage. In a consensual separation the choice is declared in the public deed; in a judicial separation, by a note filed before final judgment. The court can also stop a spouse using the other's surname where it causes grave prejudice.
Can separated spouses get back together?
Yes. Separated spouses may reunite at any time (article 63). Voluntary cohabitation restores the duties of cohabitation and maintenance, but other effects of the separation, such as the division of property, cease only by a public deed made with the court's authority and are effective for third parties once registered (articles 64 to 66).
Does separation apply to unmarried couples?
No. Unmarried partners who signed a public deed of cohabitation end it by dissolution under the Cohabitation Act (Cap. 614), filed by application before the Family Section; many separation rules, including interim orders, custody, access and maintenance, apply to it (article 18). Disputes about children of unmarried parents go to the Family Section under article 37(9) of Cap. 16.
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