by Dr Graziella Cricchiola – Junior Associate
When a couple reaches the unfortunate decision to split up, various decisions relating to the property forming party of the community of acquests, maintenance to the spouses as well as other decisions relating to the care and custody, access and maintenance in favour of the children have to be taken. These decisions many times lead to serious contentions between the separating couples.
Before the parties have authority from the Court to proceed for their personal separation, couples are obliged by law to undergo a process of mediation. During the mediation, the mediator would first attempt to reconcile the parties. Failure to reconcile, the mediator would try to mediate between the spouses in order to reach an agreement with regards to the personal separation by mutual consent – commonly known as bonarja.
During the mediation stage, the spouses are not requested to take any oath and no evidence may be adduced before any Court of anything divulged to the mediator in the mediation proceedings, of any proposal made or the reaction of either spouse to such proposals. Simply put, through mediation couples would be re-negotiating matrimonial boundaries by identifying their assets, valuating them and allocate them to a party. In this manner, parties would have the opportunity to divide the asset at their own satisfaction rather than being based on an equal division of property. Subsequently, their agreement would be incorporated into a contract, to be signed before and published by a Notary Public after obtaining Court authorisation.
Let’s say that the parties forgive each other and reconcile, is it possible at a later stage to file once again separation proceedings on the same grounds? Yes, the spouses may once again file for personal separation on the same grounds and events to reinforce his or her claims against the other party irrespective of the fact that they reconciled. Nevertheless, the parties would still have to undergo the mediation process before proceeding to initiate the personal separation in Court.
What happens if the parties do not come into agreement about their personal separation during the mediation stage? Article 7 of the S.L. 12.20 provides that either party may initiate proceedings within two months after the Court authorisation to proceed with a suit for personal separation.
From the evidence produced by parties, the Court would need to establish which spouse is in fault for the marriage breakdown. The party who is in fault may lose the right to maintenance, certain inheritance rights as well as half share of a particular asset which has been acquired mainly through the work of the other party, after a date established by Court when the spouse is to be considered as having given sufficient cause to the separation. Moreover, the guilty party may also have to foot the costs of the court proceedings.
What are the grounds of separation? The law provides four different grounds that give rise to personal separation – adultery, desertion for two years, cruelty, threat or grievous injury and irretrievable breakdown of marriage. It must be note that whereas the three grounds for separation may be invoked at any time during the marriage, the ground of irretrievable breakdown of marriage may only be utilised if the couple has been married for at least four years.
Contrary to popular belief, personal separation does not formally terminate a marriage in the eyes of the state, couples who obtained a personal separation are still deemed to be married. Thus, they are still bound by the obligation of fidelity. In separation proceedings, the couple would be freed from the obligation of cohabitation and assistance.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on firstname.lastname@example.org.