Litigation and Dispute Resolution
Exploring Maltese separation proceedings. Associate Maria Camilleri delves into the intricacies of separation agreements in the second instalment of her informative series.
The Separation Agreement
When spouses reach an agreement on all matters concerning their separation; this is recorded in a written agreement referred to as the separation agreement. This article will discuss the standard provisions contained in such agreements. The reader ought to keep in mind that each agreement is specific to the parties contracting it, and to the particular facts of the case at hand.
The separation agreement is the fruit of a successful mediation process; it is a public deed which needs to be signed before a Notary Public following authorisation to proceed by the Family Court. Once the agreement is signed by the parties, it is registered in the Public Registry.
The Civil Court (Family Section) when deciding Case; 348/2013 AL noted that; (translated into english) ‘The agreement is law, for the contracting parties. (…) The cardinal principle that regulates the institute of Contracts always remains that the contractual agreement ought to be respected and that it is the will of the parties, as expressed in the agreement which prevails and ought to be observed.’ (Pacta sunt servanda)’ 
It is therefore imperative that the parties entering into a separation agreement are contracting willingly and are fully informed of its content and effects at law.
The opening section to the separation agreement usually contains general details of the parties, the marraige and reference to the court decree authorising the parties to proceed with the publication of the deed. In the event the parties have children, the details of their children are noted and at times, a declaration indicating the date when the parties separated ‘de facto’ (factually) is also recorded.
The agreement then proceeds to extinguish certain legal rights and obligations which where previously applicable between the spouses; such as the obligation of cohabitaiton and assistance and the obligation of paying each other maintenance (financial support). Upon separation, the spouses renounce to their rights to inherit each other and any power of attorney which was contracted between them is also extinguished. Upon signing the separation agreement, each spouse is an independent indivdual representing their own self when contracting civil matters with third parties.
Provisions Concerning the Spouses’ Children
In the event the spouses have children who are still minors; the separation agreement must also regulate the spouses relationship and legal obligations towards their children. The agreement ought to contain provisions establishing; visitation rights, care and custody and the amount of maintenance due for each child as a contribution to their daily needs. The parties must also agree where and with whom the children will be residing.
The standard practice is for the care and custody of the children to be exercised jointly between the parties, with decisions of a day-to-day nature being the responsibility of the parent who would be present with the children at the time, whereas decisions of an extraordinary nature are taken jointly. The separation agreement establishes the days of the week and times when the parent exercising visitation rights is entitled to visit their children. This usually includes pre-agreed timeframes for visitation on special occasions such as birthdays, Father’s Day, Mother’s Day, as well as Summer, Easter, and Christmas holidays. One of the reasons for this scheduling exercise is for the parties to have a point of reference in the event of disagreement.
Each child is due to receive financial support for their upbringing and day-to-day needs, hence the separation agreement stipulates the sum of money which is due to the parent with whom the children will be residing – the agreement further lays down the frequency (e.g. monthly) and the modality of payment. In addition to this, the parties ought to agree on how each parent will be contributing towards the children’s health and education expenses (generally, these are equally split between the parties).
The separation agreement also contains provisions regulating travel; in the event one of the parties wishes to travel with their children. Amongst the issues which are usually addressed in the separation agreement one finds; provisions regulating the timeframe within which the parent who wishes to travel with their children must notify the other parent of intent to travel, the right of the parent staying behind to information on the destination, itinerary and travel dates and cooperation between the parties for the issuance of the children’s necessary travel documentation.
Regulating Assets held in Common
If the spouses had not entered into a pre-nuptial agreement prior to marriage, their assets are regulated by the community of acquests; which entails that all movable and immovable property acquired during marriage are the property of both parties in equal shares. Once spouses decide to separate, their property can no longer be held in common. The separation agreement must provide for the division and assignment of al the assets pertaining to the community of acquests between the parties; and upon signing the agreement, the spouses would be terminating and dissolving the community of acquests. The assignment exercise exlcudes any property which was already owned by the parties individually prior to marriage, referred to as paraphernal property. The spouses must also reach an agreement on the future of their matrimonial home. If the matrimonial home belongs to both parties jointly; the options which are mostly sought after are to assign the matrimonial to one of the parties, which party shall compensate the other for their share; or the matrimonial home is sold, and the proceeds of the sale are divided between the parties.
Nearing the end of the separation agreement, one finds a number of general declarations which are important to note; such as that the parties are satisfied with the contents found in the agreement, and that the agreement will remain valid, applicable and effective between the parties even if the marriage between them is declared null and void or a change in status of the parties occurs. By virtue of Article 62 of the Civil Code, the spouses may choose to revert to their surname at birth in which case, the choice must indicated in the separation agreement for it to valid at law.
Requesting Varations to the Separation Agreement
The parties must keep in mind that if eventually, one of the parties wishes to vary any provision to their separation agreement, this can only be done with the consent of the other party to the agreement. The procedure which needs to be adopted for the purpose is for the party requesting the amendment to insitute mediaiton proceedings to try and resolve the matter amicably. If the parties do reach an agreement, the amended provisions are presented to Court for authrosiation in the same manner as the original separation agreement. However if the parties do not agree, the matter must be take before the Civil Court (Family Section).
In Case 126/2009 the Civil Court (Family Section) explained; (translated into english) ‘A provision in a separation agreement cannot be revoked if not with the consent of both parties, more so if the plaintiff does not provide evidence for this, the obligations of the current separation agreement remain binding and cannot be altered’.
The Court of Appeal in its decision Borg vs. Borg decided on the 30th November 2012 held that; (translated into english) ‘While the principle of pacta sunt servanda ought to regulate personal separation agreements like any other contract, in circumstances that are grave, exceptional or independent of the party’s will which result in the impossibility of a party to continue executing the obligation to pay maintenance as agreed between the parties, the Court has the faculty to review this obligation.’ This therefore means that the Court will only interfer into what has been agreed by the parties, after being convinced through evidence presented that circumstances leading to the change are grave, exceptional or independent of the party’s will.
 Case 348/2013 AL decided on the 27th February 2020; Illi l-ftehim hu liġi għall-partijiet kontraenti (…) Illi l-prinċipju kardinali li jirregola l-istatut tal-kuntratti jibqa’ dejjem dak li l-vinkolu kontrattwali għandu jiġi rispettat u li hi l-volonta tal-kontraenti kif espressa fil-konvenzjoni li kellha tipprevali u trid tiġi osservata (Pacta sunt servanda).
 Case 126/2019, decided on the 23rd January 2013; Il-provvediment f’kuntratt ta’ separazzjoni ma jistax jiġi mħassar jekk mhux bil-kunsens tal-partijiet aktar u aktar fin-nuqqas ta’ prova da parti tar-rikorrent, l-obbligi tal-ftehim tal-kuntratt ta’ separazzjoni viġenti jibqgħu jorbtu u ma jistgħux jiġu alterati
 Borg v. Borg, decided on the 30th November 2012; ‘Filwaqt li l-principju pacta sunt servanda ghandu jirregola l-kuntratti tas-separazzjoni personali bhal kull kuntratt iehor, izda f’cirkostanzi gravi, eccezzjonali jew indipendenti mill-volonta` tal-parti li gabuha flimpossibbilita` li tkompli tezegwixxi l-obbligu tal-hlas ta’ manteniment pattwit bejn il-partijiet, il-Qorti ghandha l–fakolta` li tirrevedi dan l-obbligu.’