AV Legal is a new law firm specialising in Family, Criminal and International Law.
Amicable Settlements
When parties who are bound by marriage or Civil Union or have a child / children in common decide to part ways, it is fundamental that this is done through a formal process. Prior to engaging in court litigation both parties are bound to submit themselves before a mediator and discuss any disagreements between them on four fundamental points. These being: Access, Maintenance for the other spouse or/and for the children, residence for the parties and the children and division of assets. These are not the only points of discussion, but they are central to a formal agreement. The mediators are appointed by the courts and do not charge any costs for their services. Parties are recommended to be assisted by a lawyer although this is not mandatory.
Should the parties manage to reach an agreement on all the matters before the mediator than the parties will submit the agreement to court. The Maltese Courts will than review such agreement to ensure that neither party is seriously prejudiced by such agreement, and if in the negative the court will issue its authorization and the parties can appear before a notary to sign their separation agreement which is binding upon both parties when it becomes a public deed. Should the court feel that the separation agreement is not in the best interests of the parties or their child/children it will ask the parties wot re-submit via mediation.
Litigation is costly and time consuming therefore we as lawyers encourage parties to try and come to an out of court settlement however this is not always possible. If the latter case ensues and the parties together with their lawyers and the mediator’s input decide that that these sessions will bear no fruit than the parties will be authorized to proceed to separation proceedings before the Maltese Family Court. Mediation will be closed by the mediator and parties will have a time bound period in order to file a sworn application before the Maltese Courts, in or to open separation proceedings before the Maltese Family Courts.
The parties do not need to file a complete lawsuit in order to have the Courts decide on all points at hand but rather they can come to an agreement on some of the fundamental issues and file an application for anything which is still pending. This will also release the courts off some work which can be done without its intervention.
Mediation can also be used for unmarried couples when there are children born out of wedlock. The mediator will help settle issues such as division of common assets and care custody and access to their child/children.
When we speak about mediation we are referring to an informal environment which allows the parties time to discuss disagreements before a mediator and with the guidance of lawyers which have their best interests at heart. Mediation is also fully confidential and therefore anything said in the presence of the mediator is without prejudice before the courts. Essentially this means that even if one of the parties admits fault before the mediator this can not be used in court against the other party. Additionally, the mediator is also bound by professional secrecy and will never be summoned by the court to give evidence against one party or another or anything that was said during the mediation process.
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