Our family laws are mainly governed by the Matrimonial Causes Act, the Maintenance Act, the Married Women Act, the Domestic Violence and Matrimonial Proceedings Act, the Magistrates Court Act and the Children Act.
Divorce & Judicial Separation
There has been a recent and welcome overhaul of divorce laws in Gibraltar in 2010, bringing our laws closer to those of England and Wales.
Until 2010, our laws required that spouses should be married for at least 5 years before they could petition for divorce. This period was excessive since confirmation of the breakdown of the marriage would dawn on the parties long before this. This period has now been reduced to 3 years. This is reasonable. In the UK it is 1 year and, by way of contrast, in Spain it is 3 months.
The grounds for divorce are adultery, rape, sodomy or homosexuality and that, as a result, a spouse finds it intolerable to live with the other. In addition, unreasonable behaviour of a serious nature and desertion for a continuous period of 2 years are also grounds for divorce.
It is also possible to obtain a divorce by consent without the need to make any allegations against the other spouse where the spouses have lived apart for a period of 2 years and, where one of the spouses is unwilling to give the necessary consent, 3 years. Before the law reforms of 2010, the respective periods were 3 years and 5 years.
The Supreme Court can also grant a Judicial Separation on the same grounds as above. The marriage subsists but the obligation of cohabitation is severed.
Courts can also grant a decree of nullity where the marriage has not been consummated or where it was entered into by duress by one of the parties and paradoxically, where one of the parties was already married at the time of the marriage. In such a case, the marriage would be void ab initio, so that there would be no marriage to annul. The decree is thus, in reality, more of a declaratory order.
The Court can also make a declaratory order dissolving the marriage on the presumption of death where the other spouse has not been heard of for at least 7 years. The Magistrates’ Court can also make an order of Legal Separation (Non-Cohabitation Order) on similar grounds and also for failure to provide maintenance for a wife or children. This also maintains the legal marital bond intact.
Access to the Courts in Gibraltar in matrimonial cases has historically depended upon either party being domiciled or habitually resident here for at least 1 year. However, in cases of nullity, the Courts had jurisdiction additionally where the marriage was celebrated in Gibraltar without the need for domicile to be proved or any residential qualification. This was justified on the ground that Gibraltar advertises itself as a jurisdiction where quick and cheap marriages are possible without the need for any residential qualification. It was thus felt proper, presumably, that where the marriage, for example, was void ab initio because one of the parties was married at the time of the marriage, access was possible to the Courts for annulment based merely on the fact of the marriage having been celebrated here since, in essence that marriage should not have been allowed.
This jurisdictional concession has now unfortunately been abolished by European law since the coming into effect of Regulation 1347/2000 of the Council of the European Union which sets out specific requirements for access to the courts (jurisdiction) in matrimonial matters for all EU member states. Access to the courts is now based on residence and domicile as in divorce cases.
Pre-nuptial agreements, although common and popular in Europe, have traditionally been frowned upon by English Courts on grounds of public policy as they were considered not to be a good start to a marriage. However, in recent high profile cases in the United Kingdom these have been accepted to a limited extent.
In Gibraltar, such agreements are now directly allowed under our reformed family legislation and will serve to avoid protracted and frequently acrimonious and controversial legal battles in court on divorce.
Recognition of Marriages & Divorces Abroad
Marriages taking place and divorces obtained by parties in jurisdictions outside Gibraltar are recognised in accordance with the rules of private international law. In most cases, these are recognised if such marriage or divorce complied with the laws of the country where they took place or were obtained.
There is adequate provision to ensure that a spouse, usually the wife, following divorce proceedings is maintained by the other spouse. A long awaited introduction in Gibraltar has been legislation providing for pension sharing, which includes, importantly, the thorny question of sharing in the gratuity of the other. This has hitherto been governed by the common law and has thus proved controversial and unreliable.
There is now extensive and all-embracing legislation providing for the maintenance and needs of children from broken homes and we have adopted the UK Children Act of 1989 with minor variations. This legislation creates a welcome lesser role for lawyers and even for the courts in matters relating to the welfare of children and creates a greater role for the social services.
Historic expertise of our firm
Our firm has historically been the leading firm in Gibraltar on all matters relating to matrimonial law and children. Our senior partner has been instrumental in the reform of family law over the years and has worked closely with Government in the revision and amendment of legislation.