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The Public Law Aspects of Maltese Divorce Law

Keywords: DIVORCE LAW , PUBLIC LAW , HENRY VIII CLAUSE , RECONCILIATION , CONFIDENTIALITY , COHABITATION , DOMICILE , ORDINARY RESIDENCE , INTERPRETATION ACT , REFERENDUM , COMMITTEE FOR THE ADAPTATION OF LAWS

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Abstract:

The purpose of the paper is not to analyse the newly enacted law on divorce from the perspective of Family Law. Nor does it involve itself in any way with the controversy at the time when the divorce issue was being discussed in Malta. All these fall outside the scope of this paper. On the contrary, it takes a totally different viewpoint by discussing the Public Law implications of the Civil Code (Amendment) Act, 2011 – the law which introduced divorce into the Maltese Legal System. The Public Law aspects discussed with regard to the divorce legislation comprise the following: the obligatory referendum mechanism, the relevance of the Interpretation Act to the making of regulations under the divorce law, the formulation of a Henry VIII clause empowering the Prime Minister to amend primary legislation through subsidiary law, the administrative law issue of continuing to task mediators with non-mediation functions, the lack of a definition of key terms such as ‘domicile’ and ‘ordinary residence’ and, generally, the drafting style of the divorce law, dedicating particular attention to its very first provision. This paper criticises the divorce law from a legislative drafting angle arguing that the law could have been better drafted from a Public Law point of view and certain drafting mistakes could have been easily avoided or rectified at Committee Stage.

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