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RESTRUCTURING THE FAMILY COURT
by Emmy Bezzina,veteran Family Law Lawyer

It was welcome news that our Chief Justice on Friday, March 12th, at a public conference related to the state of the Family, opted to raise the burning issue of our ailing Family Court, a matter relating to which I have been constantly
contributing both in the print and broadcasting media.

Malta`s Family Court needs a major overhaul, a fundamental restructuring in every conceivable aspect: this incorporates an adequate place from where the Family Court can administratively function properly, staffing professionally trained in every area concerning the Family Law field, sufficiently structured consulting rooms, monitoring services so as to assure a link in the proceedings to avoid the chaos that results regularly at present due to the absurd detachment between the Mediation and Contentious Proceedings,strategic plan between the Bench,the Parties and the Lawyers as to how the Case will progress with a Date clearly earmarked as to when such proceedings will definitely conclude, backed up by follow-up supervisory sessions particularly where young children are involved.

Life in its frail humanity is precious.No couple whose marriage or partnership has irretrievably broken down has any time to lose, much less spend years on end until the procedures are definitively over: consider by way of illustration a case where a married mother of two very young siblings abandoned the conjugal home to go and cohabit with her older lover himself equally abandoning his wife and children.The Adultery despite denied under oath was evident to one and all. The husband was left alone to take care of the two minor, very young children as well as to see that he retained his job on which his livelihood depended.

In laws had to be roped in to assist. Eleven years after commencing before the Family Court the Case was concluded before the First Court with the husband being told that despite that the marital breakdown was through no fault of his, yet he had to vacate the Conjugal Home within eight years as the latter was legally the paraphernal property of the adulterous wife by which time the latter had acquired another home with her lover from whom she had a child.

By this time,the two young siblings have grown into two fine teenagers with not one cent being contributed towards their upbringing by their adulterous mother. Within eight years, the latter gets the Conjugal Home back,and what is to happen to the husband and the children now on the threshold of adulthood,majority age? Thrown out into the street when the marital breakdown was through no fault of theirs, as declared formally by the First Court? The unfaithful wife then decides to appeal so as to make certain that by the time the Appeal is determined, the children would have come of age and she despite having a well-paid job [ which is denied - her boss is her lover ! ] would never have contributed anything for her own off spring. The truth has been crowned by an unjust outcome:it took the obvious nearly fifteen years to be crystallized and the victimized parties are to fathom out how to commence their life anew. This case is not a sole instance,but clearly points out the gross inadequacy as to how our Family Court is run.We talk about the Family Court but nobody is truly caring that this Court has become the most burdened with highly-charged cases, delicate issues and consequences to which not much pratical attention is meted out.

Had there been proper coordination, monitoring and supervision,this tortuous, expensive, disillusionary and shameful path would not have been necessary.THE FAMILY COURT is a most delicate and sensitive Institution which necessitates being equally so treated. The competent authorities despite being repeatedly exhorted to look realistically into this complex matter, always shied purposely away from so doing, for `religio et patria` concerns, when this should never have been,but yet it is still most hypocretically evident.

The situation has worsened as the cases of issues appertaining to couples that are not married, to children born out of wedlock [ almost 30% according to official statistics ] ,to DNA Testing, acknowledgement of minors officially declared to have `unknown` fathers, false details or lack of them in Birth Certificates, married fathers being burdened with children that are not theirs plus the six months legal limit to file proceedings denying paternity, abusive obtainment of Garnishee & Inhibition Warrants, lack of coordination between sections in the Family Court Registry, inadequate number of Family Court Judges [ currently there are a meagre two and both of them have to carry out other judicial duties outside their Family Court assignments !! ], all these and more are on the increase while the inefficiencies in the Family Court Organization are ever more augmenting because there is not a committed commitment on the part of the authorities to seriously remedying the catastrophic situation. Patching and attempting to fill the many gaping holes that emerge regularly is not a solution, as is well-known.

A study has to be made relating to the role of Experts, Legal Referees,and Judicial Assistants which have become in the case of the first two categories a lucrative financial source for the individuals benefitting. The bills for instance for evaluating immovable property for community of acquests purpose are being grossly exaggerated. Because of a lack of a judicially-coordinated procedure strategy,lots of sessions with Legal Referees are pure waste of time for which sessions the contending parties have to pay. Too many accounting is coming into play from some well-known sources who are applying Financial Services Principles to the married life of couples throwing the latter into unnecessary expenses. The Court should curtail and control these abuses.

Again,the emergence of the Family Criminal Court is a busy thorough fare that requires delicate handling and coordination with the civil side of the Family Court. Because of matrimonial conflicts a number of individuals found themselves before the Family Criminal Court, imprisoned for not paying maintenance to an adulterous wife for instance, or facing accusations of domestic violence with the ulterior objective truly being to have a positive judgement which will serve as a basis to evict someone from the conjugal home. We tend to focus on Domestic Violence without examining the ulterior reasons as to why this is on the increase: the above
is a principal cause and we are doing nothing to halt this regressive move in the increasing downfall of married life.These are the issues that must not only be examined and spoken about publicly by influential persons [ such as the Chief Justice ], but carefully considered conclusions have to be drawn to provide a remedy.

Lacking the legal structure to dissolve a marriage is another fatal flaw which the competent authorities are terrified apparently of facing. The truthful scenario has long emerged; yet we do not grasp it and implement realistic remedies. We allow an atrocious legal scandal to keep mining the independence of our Courts in Annulment matters, as occurred on March 1st,1995, with a subversive amendment to the 1975 Marriage Act. The authorities have thus aided and abetted the confusion in the Family Court to augment in matters that relate to the antiquated institution of Annulments where nobody actually resorts to it formally in the rest of the world.Divorce locally has thus to be introduced, as persons involved want to get on with their precious lives. Hence the competent authorities are to blame for not providing a legal remedy to the countless marriages breaking down among us,where as a result - proportionally - Malta has the highest number of legal or de facto separations in the EU, apart from having also the pole position in the jungle habitat of co habitations that are flourishing with an ever-rising rhythm among us.

With this desolate, factual picture, it is useless to attempt to discuss the many shortcomings of our Family Court when the State [ and no other Institution has any business to get or be tolerated to get involved ] is not providing the legal remedies and proper infra structure to halt this social rot which has engulfed us already. Hence let us not try and find the scape goats,merely admit the Mea Culpa: sic et sempliciter!

Dr Emmy Bezzina is a well-known Family Law lawyer with 33 years private practice behind him.

 

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