The aims of the law of marital separation in context

Abstract

The purpose of this study is that of discovering what the aims of the law on marital separation may be, not only from the perspective of the enacted statutes but also by looking at local jurisprudence, parliamentary debates and various White Papers and documents issued by government ministries. One of the most traditional aims is that of safeguarding the bond of marriage. The indissolubility of the marriage is also seen as an aim, as evidenced by the fact that there is no provision for divorce. One of the principal and most obvious aims is that of the termination of the duty of cohabitation between the spouses, when this becomes difficult or impossible. Another aim is that of allowing separation only where there are sufficient grounds. The strictness and rigidity of this aim was reduced with the introduction of irretrievable breakdown of marriage as a ground for separation, with the aim of allowing more flexibility. One of the aims was found to be that of regulating to post-separation situation of the spouses. Both the statutory law and the Courts aim at regulating the rights and duties of the spouses after separation, and also to provide for consequences for having given cause to the separation. The children of the spouses are affected by the separation and decisions affecting them are taken after considering their best interests. Other ancillary aims which are of secondary and incidental importance were also discovered. Among them are those of treating the spouses equally and that of providing for their independence after separation. The research undertaken revealed that one of the principal aims in practice remains that of determining who was at fault for the breakdown. This aim affects all others especially that of providing for consequences for the party who has caused the separation. This aim persisted even after efforts to decrease its importance were undertaken by the legislator. Thus a brief study into the issue of fault, in the Maltese and foreign jurisdictions was carried out, and suppositions were advanced as to what the reasons for and ramifications of this persistence might be.