The government has rebutted Alternattiva Demokratika’s criticism of its request for an official opt-out clause with regards to an initiative seeking to introduce changes to divorce procedures in the European Union (EU). In a statement the government said that the Alternattiva Demokratika’s has failed to distinguish between the harmonisation of domestic legislation on divorce, and the harmonisation of ‘conflict of law rules’ on divorce.
“The Commission itself has repeatedly stated that its Proposal does not aim to harmonise the divorce laws of Member States. Indeed, such harmonisation would not even be allowed by the Treaty establishing the European Community since Article 65TEC limits the Community’s legislative powers to judicial cooperation in civil matters having cross-border implications in so far as necessary for the proper functioning of the internal market,” stated the government. It furthermore added that the harmonization of national divorce laws would fall outside this limited Community competence, making it impossible for any EU legislative instrument to oblige any Member State to introduce an otherwise inexistent institute in its substantive domestic law. “Such introduction is one that is left to the sole discretion of the respective Member State,” continued the government.
According to the government, since no substantive divorce law exists in Malta, Maltese courts will have no jurisdiction or competence to deal with divorce cases and consequently Malta cannot be chosen by a couple as the forum to obtain a pronouncement of divorce.
The Government added that it is seeking a legally transparent solution to eliminate the potential risk that the provisions of the Regulation establishing the applicable law to a particular divorce, be wrongly interpreted as allowing for the possibility of a non-Maltese couple to come before a Maltese court and request that a Maltese judge hand down a divorce judgment in accordance with a non-Maltese law. Obtaining a specific derogation from the Regulation would serve to avoid such wrong interpretation.
See also:
Malta wants legal assurance on divorce proposal
By MaltaMedia News
Jan 4, 2007, 09:38 CET
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