Article 18 of the Marriages Act ("The Act") holds that a marriage whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if –

(a) as regards the formalities thereof, the formalities required for its validity by the law of the country where the marriage is celebrated are observed; and

(b) as regards the capacity of the parties, each of the persons to be married is, by the law of the country of his or her respective domicile, capable of contracting marriage;

Thus, it is evident that the law contemplates two elements for the validity of a marriage. One must first consider where the marriage was celebrated, and whether the formalities of the respective countries were followed, such as the publication of banns, number of witnesses, etc. This applies to marriages celebrated both in Malta and abroad. Secondly, one must consider the domicile of the two parties and whether the parties were capable of contracting marriage according to the law of the country in which they are domiciled. Thus, one must look at the domicile of each of the spouses individually.

The wording of the law is clear, in that by virtue of the word 'and', it is evident that these requirements are cumulative and must therefore, all be satisfied. In summary, one must first analyse the formalities of marriage in the country celebrated, the capacity of the first spouse according to the law of their respective domicile and the capacity of the second spouse according to the law of their respective domicile.

Here, one must distinguish between citizenship/nationality and domicile. Even though a person may hold citizenship from one country, this does not automatically mean that their domicile is the same. Both nationality and domicile are determined in accordance with the domestic law of each respective state. The fundamental difference, however, is that nationality tends to represent a person's political status, whilst domicile indicates a person's civil status which provides the law by which his personal rights and obligations may be determined. Therefore, for the scope of recognising the validity of a marriage within the Act, one must look at the domicile of the spouses, rather than the nationality.

Another important question to keep in mind is – when should a foreign divorce be recognised as valid in Malta? Article 33 of The Act provides that "A decision of a foreign court on the status of a married person or affecting such status shall be recognized for all purposes of law in Malta if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen".

The first step is relatively clear – one must first see which foreign court handed down the decision. Subsequently, either the domicile or the nationality of the parties must also be considered. Unlike Article 18, Article 33 refers to both the domicile of the parties and their nationality, alternatively. If the decision was given in a state which either party is domiciled or citizen, then the divorce is recognised as valid as per Maltese Law.

Whilst the requirements for the validity of a marriage require three cumulative, connecting factors (i.e. the formalities of the place where the marriage took place, the capacity of the first spouse according to their domicile state law and the capacity of the second spouse according to their domicile state law), the requirements for the recognition of a foreign divorce only requires one out of four potential connecting factors (i.e. the place of domicile of the first spouse, the place of citizenship of the first spouse, the place of domicile of the second spouse or the place of citizenship of the second spouse).

In this regard, one must also look at the Brussels II Regulation No. 2019/1111 ("Brussels II") which tackles the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. The aim of this Regulation is to facilitate the recognition and enforcement of judgments related to matrimonial matters and parental responsibility across the EU. This, like Brussels I Recast ("Brussels I"), is consistent with the fundamental freedoms of the European Union, specifically the freedom of movement.

Brussels II focuses more on the spouses' Habitual Residence as can be seen in Article 3. However, the provisions of this Article are flexible in that it permits spouses to submit to the jurisdiction of any state with which there is a connecting factor to, such as, habitual residence.

Whilst this is not defined by Brussels II, the general understanding is that to be considered as habitually resident in a Member State, you must be able to demonstrate that your centre of interest is within that respective state. This is usually determined by where one lives, their links to the country, where the parties' children attend school and any relevant ties. It is to be distinguished from the concept of domicile.

Article 30 of Brussels II holds that a judgment given in a Member State shall be recognised in other Member States without any special procedure being required. Article 30(2) further holds that no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.

However, like Brussels I, as per Article 30(3) of Brussels II, any interested party may apply for a decision that a judgment is not recognised. Article 38, akin to Article 45 of Brussels I, a judgment relating to a divorce, legal separation or marriage annulment shall not be recognised if:

  • The recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;
  • Where the decision was given in contumacia, if the respondent was not served with the documents which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally;
  • if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or
  • if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought."

Thus, Article 33 of the Act and Article 30 of Brussels II work in tandem with each other. Evidently, the conditions to recognise a foreign divorce under the Act are more stringent that Brussels II which contemplates a more automatic process of recognition. However, for avoidance of doubt, when dealing with decisions hailing from an EU Member State, the provisions of Brussels II prevail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.